RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03895
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040728

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Food Service Specialist, medically separated for “back pain” with a disability rating of 20%.

CI CONTENTION:  She was given a higher rating for her conditions by the VA.  She was not evaluated for a bone graft and PTSD condition.  The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (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:

SERVICE PEB - 20040526	VARD – 20041214 & 20041129	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain	5241	20%	Dextroscoliosis of the Thoracolumbar Spine S/P Posterior Spinal Fusion Between T6 and L1	5241	10%	20040921	
			Scar, Surgical (Graft Site)	7804	10%		
			Scar, Surgical (Spine) 	7804	10%		
Asthma	Not Unfitting	Asthma	6099-6602	30%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered an acute onset of back pain from a fall (12 feet) in November 2002.  She was subsequently found to have significant scoliosis which was opined to have been acquired from the fall.  She suffered significant pain with gait disturbance and limited range of motion (ROM); and, after failing to improve with conservative management and a brace, she underwent surgery (thoracic fusion, Harrington rod with bone graft from the iliac crest) on 14 November 2003, 9 months before separation.  There was a complaint of bilateral lower extremity (BLE) radiation without sensory or motor symptoms.  Neurological examinations from the STR recorded 5/5 BLE strength in some entries, but mild deficits in others (4-4+/5, documenting pain and guarding).  An MRI confirmed the absence of disc disease or neural encroachment.  Post-operative STR entries reflected an improving course and X-rays demonstrated significant remedy of the scoliosis (residual 10 degrees of dextroscoliosis).  However, the CI continued to have pain with an antalgic gait requiring the use of a cane.  The post-operative ROM evidence from the STR corroborated that from the NARSUM as indicated below.  There was no STR documentation of incapacitating episodes after surgical recovery.  Surgery did not result in improvement sufficient to allow unrestricted duty, and the CI was referred for an MEB which in turn forwarded “painful scoliosis” to the PEB.

At the MEB NARSUM examination dated 1 April 2004, 4 months before separation, the CI reported persistent back pain (BLE radiation denied) “with minimal activity including standing for greater than 10 minutes or walking.”  The physical examination recorded spinal tenderness with the following neurological findings: 4+/5 strength in proximal BLE groups “secondary to back pain,” 5/5 strength in distal groups, and an absent patellar reflex on the left (unexplained, remaining reflexes were 2+ and symmetric).  Measured ROM was flexion 80 degrees (normal 90), extension 25 degrees (normal 30), bilateral flexion 30 degrees (normal), and “full” bilateral rotation; specifying pain at extremes.

At the 21 September 2004 VA Compensation and Pension (C&P) evaluation, performed 2 months after separation, the CI reported constant pain rated 9/10 with left leg radiation, precipitated by “activity” and driving.  The physical examination recorded “pushed into exam room by wheel chair ... crying and complaining of back pain.”  No direct findings were noted other than tenderness over the two surgical scars listed in the rating comparison chart.  The examiner noted 4+/5 BLE strength and inability to test tandem gait “due to back pain.”  The ROM measurements were flexion 65 degrees with combined ROM 135 degrees (normal 240).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating coded 5241 (spinal fusion), citing the VASRD §4.71a criterion of abnormal gait.  The VA assigned a 10% rating also coded 5241, citing ROM evidence from the C&P examination.  The VA additionally provided surgical scar ratings as charted above; however, there was no functional impairment linked to fitness (no documented interference with use of required gear, etc.) to justify service rating for either of them.  There was no ROM evidence supporting a rating higher than 20% and no documentation of incapacitating episodes which would provide for a higher rating under that formula.  The Board considered whether additional rating could be recommended for associated neuropathy, but members agreed that neither the functional link to fitness requisite for service rating nor the presence of a VASRD ratable deficit were supported by the evidence.  The mildly diminished BLE strength in evidence was readily attributable to pain and guarding (and opined as such by the NARSUM orthopedist), which was subsumed in the spine rating, and there was no clinical basis for a neurologic injury due to spine disease.  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 lumbar spine condition.

Contended PEB Condition:  Asthma.  The CI was diagnosed with asthma in 2002 and was prescribed a rescue inhaler (albuterol as needed, no inhaled steroids).  There was no STR evidence of any complications or significant clinical acuity.  The condition was not profiled throughout service, was not mentioned in the commander’s performance statement, and was judged to be medically acceptable by the MEB.  The post-separation C&P examiner stated, “There are times she feels a little short of breath, occasionally has wheezing.”  The Board’s main charge is to assess the fairness of the PEB’s determination that the condition was not unfitting.  Members agreed that there was no performance-based evidence indicating that the asthma interfered with duty requirements to an extent that would have prohibited further military service.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the asthma condition; thus, it was not eligible for service rating.

BOARD FINDINGS:  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended asthma condition, 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.  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 20140902, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						
29JUL2016

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 (PD201403895)

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