RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02823
BRANCH OF SERVICE:  Army	BOARD DATE:  20150515
SEPARATION DATE:  20071117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Power Generation Equipment Repairer) medically separated for a chronic back condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “left rib dislocation” (not medically acceptable) and “left ankle osteoarthritis” and “hyperlipidemia” (medically acceptable) to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic thoracolumbar back pain at T4 level (also diagnosed by chiropractor as a “rib dislocation”) as unfitting, rated 10% with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20070828	VA* - (~3 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Thoracolumbar Back Pain at T4 Level (Diagnosed as Rib Dislocation)	5299-5237	10%	Chronic Thoracolumbar Strain	5237	10%	20070824	
Left Ankle Osteoarthritis	Not Unfitting	Status Post Left Ankle Surgery w/Post Traumatic Arthritis and Residual Scars	5271	10%	20070824	
Hyperlipidemia	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20071204 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Thoracolumbar Back Pain.  While deployed, the CI developed pain in his mid and upper back after lifting a heavy object in October 2005.  He received conservative treatment in the area of concentration and upon redeployment, radiographic exams were normal.  He was referred for chiropractic health, diagnosed with a “dislocated rib,” and received manipulation treatments throughout 2006 and 2007.  His painful symptoms improved, but without complete resolution.  He was permanently profiled in June 2007 and referred for an MEB.  At the MEB examination on 1 July 2007; (5 months prior to separation), the CI reported continued left upper back pain aggravated by overhead reaching, prolonged standing, pushing a lawn mower, and reaching across chest for a seat belt.  His pain rating was listed as “marked” intensity and “constant” frequency.  His physical examination (PE) revealed upper back tenderness and painful decreased thoracolumbar range-of-motion (ROM).  His permeant profile listed “mid-thoracic back pain secondary to rib dislocation” as the sole diagnosis and the same condition was implicated in the commander’s letter.  At the VA Compensation and Pension examination on 14 August 2007; (3 months prior to separation), the CI reported a constant 8/10 scaled upper back pain associated with weakness and stiffness and aggravated with physical activity.  He admits to maintain function when taking anti-inflammatory medication and denies any periods of incapacitation.  His PE revealed near normal thoracolumbar ROM with terminal painful motion.  Repeat thoracic and lumbar spine X-rays remained normal.  The CI’s final diagnosis was “chronic thoracolumbar strain.”

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the back condition under the same primary code of 5237 (lumbosacral strain) at 10% citing tenderness and pain, respectively.  Board members first agreed that sufficient evidence of painful motion was present prior and after separation to justify the 10% rating IAW VASRD §4.59.  The Board then considered application of §4.40, which allows for a higher rating if evidence of additional functional loss is present.  Member’s concluded however that there was no examination in evidence on which to base a conclusion that repetitive motion resulted in any additional disability.  There also was no evidence of incapacitating episodes in this case which would provide for additional or higher rating.  Therefore, Board members agreed that a rating higher than 10% was not justified.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the thoracolumbar back condition.

Other PEB Conditions.  The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were left ankle osteoarthritis and hyperlipidemia.  The Board’s main charge with respect to these conditions is an assessment of the fairness of the PEB’s determination that they were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  An established principle for fitness determinations is that they are performance-based; and, the Board is confronted in this case with the lack of any evidence that the limitations imposed by either of these conditions prohibited the performance of the duties required of his MOS rating.  Neither of these conditions were permanently profiled, implicated in the commander’s letter, or noted as failing retention standards.  Both conditions were reviewed by the action officer and considered by the Board.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting a re-characterization of the PEB’s fitness adjudication for either the left ankle osteoarthritis or the hyperlipidemia condition.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the thoracolumbar condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended left ankle osteoarthritis or the hyperlipidemia conditions, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140609, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20150018875 (PD201402823)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA