RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03295
BRANCH OF SERVICE:  Army	BOARD DATE:  20150529
Separation Date:  20050830

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Pipe Fitter) medically separated for chronic pain, upper and lower back without neurologic abnormality.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3/L2/S2 profile and referred for a Medical Evaluation Board (MEB).  The “chronic upper back pain” and “lumbago,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic pain, upper and lower back without neurologic abnormality” as unfitting, rated 10%, citing Veterans Affairs Schedule for Rating Disabilities (VASRD).  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 20050817	VA* - (~7 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Upper and Lower Back without Neurologic Abnormality	5235	10%	Degenerative Joint Disease (DJD) of the Thoracolumbar Spine with Old Compression Fracture 	5237	20%	20060414	
Other x 0 (Not In Scope)	Other x 9	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20070830 (following initial VA exam and most proximate to date of separation [DOS]).  Original 10% VA rating effective 20050831 appeared to be based on Service Treatment Records (STR).

ANALYSIS SUMMARY:

Chronic Pain, Upper and Lower Back without Neurologic Abnormality Condition.  The CI developed upper back pain in 2000 after a tour of active duty service without a specific traumatic event.  His upper back pain became worse with carrying and lifting during his deployment in Iraq in 2004.  The CI developed lower back pain (LBP) began in August 2004 with a sudden onset while lifting a roof panel.  He was treated in the emergency room (ER) with non-steroidal anti-inflammatory drugs and a temporary profile.  His back showed some improvement, however there was not a total resolution of the pain.  The CI deployed and was able to complete his assignment, however upon demobilization; he was placed in a medical holdover status.  At the Deployment Medical Clinic the CI reported chronic LBP that was worse with bending and relieved by lying down.  The physical exam of the back was normal.  The Medical Hold Over Clinic examiner noted that the CI had a 6-month history of LBP, however the physical exam was normal.  The examiner noted that there was no improvement with physical therapy.  An electromyelogram (EMG) was normal, with no evidence of a L2-S2 radiculopathy.  A thoracic spine magnetic resonance imaging (MRI) demonstrated a chronic anterior wedge compression fracture at T11-T12; a mild (20%) anterior wedge compression fracture deformity, and a T11-12 mild spinal canal stenosis (narrowing); MRI performed on the same day was interpreted as unremarkable.  The MEB narrative summary (NARSUM) exam approximately 4 months prior to separation documented that the CI was unable to perform tasks such as lifting heavy tool boxes, cast iron pipes and digging to install pipes.  The examiner rated the pain according to the American Medical Association pain scale at slight and constant.  The MEB NARSUM physical exam findings are summarized in the chart below.

The VA Compensation and Pension (C&P) exam performed approximately 7 months after separation documented that the CI had constant dull aching LBP that radiated down to both legs that was made worse with activity and relieved by rest.  He reported pain rated at 10/10 and that he had incapacitating episodes as often as 12 times per year with four incidents of incapacitation for a total of 16 days.  The functional impairment was that the back hurt when bending, pushing, pulling and carrying weighted objects.  X-rays documented thoracic degenerative disc disease with scoliosis (abnormal bend).  The compression injury at T12 was with 25% loss of height.  The VA C&P physical exam findings are summarized in the chart below.

There were range-of-motion evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the “Chronic Pain, Upper and Lower Back without Neurologic Abnormality” condition as 5235 (vertebral fracture or dislocation) and rated at 10%.  The VA coded the “DJD of the Thoracolumbar Spine with Old Compression Fracture” condition as 5237 (lumbosacral strain) and increased their 10% rating to 20% based on the exam above.  The “General Rating Formula for Diseases and Injuries of the Spine,” effective from September 2003, considers the thoracic spine (upper back) and the lumbar spine (lower back) as a single ratable thoracolumbar spine segment.  The PEB’s consolidation of the two MEB diagnoses (upper back pain and lumbago) was therefore IAW VASRD criteria.  The Board deliberated on the probative values of the two ratable exams in evidence (above).  The Board adjudged that the MEB exam was closest to the DOS and had the highest probative value for rating.  That exam met the 10% criteria for tenderness and for forward flexion greater than 60 degrees but not greater than 85 degrees.  There was insufficient evidence to support any alternative rating based on incapacitating episodes (periods of bed rest prescribed by a physician IAW Note 1 under code 5243).

Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. (“with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease”).  The sensory component in this case had no functional implications.  There was no motor impairment documented.  An EMG was normal, with no evidence of right non-pain radiculopathy.  Since no evidence of functional impairment existed in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

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 chronic pain, upper and lower back without neurologic abnormality condition without the addition of a peripheral neuropathy code.

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 chronic pain, upper and lower back without neurologic abnormality condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140630, 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 XXXXXXXXXX, AR20150003505 (PD201403295)

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