RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04173
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Army National Guard E3, Health Care Specialist Trainee, medically separated for “vertebral fracture of the thoracic spine at T6 …” with a disability rating of 10%.  

CI CONTENTION:  He was not evaluated for his nerve, depression and insomnia conditions.  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 confined to 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 - 20091110	VARD - 20100120	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Vertebral Fracture of the Thoracic Spine …	5235	10%	Residuals of Vertebral Fracture of the Thoracic Spine	5235	10%	20090903	
Bilateral Hip Referred Pain From TL Spine	Not Unfitting	Left Hip Condition	5252	NSC	20090903	
		Right Hip Condition	5252	NSC	20090903	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Back Condition.  According to service treatment records and the MEB narrative summary (NARSUM), the CI’s back condition began in January 2009 after hyperextending it during combatives training.  Radiographic studies showed a small compression fracture at T-6 with small herniated intervertebral discs at T11-T12 without impingement on nerve structures.  Evaluation by orthopedics concluded with a diagnosis of compression fracture of the thoracic vertebral body.  There was no surgical indication.  

At the time of the physical therapy examination on 1 May 2009, 8 months prior to separation, the CI reported that he continued to have popping in the thoracic spine at least twice each hour that cause significant pain.  He also reported that he continued “to have difficulty sleeping secondary to pain with any kind of positional change.”  On examination the CI was observed to have a “very slow and guarded gait secondary to pain and anxiety.”  He also had paraspinal muscle guarding and spasm with tenderness.  At the time of the family practice follow-up examination on 5 June 2009, 7 months prior to separation, the CI reported that his condition had improved and that he could walk better with less pain, but had increased fatigue.  On examination the examiner noted no gait abnormality.  He had tenderness with painful motion, but no limitation of motion.  His lower extremity strength, sensation and reflexes were normal.  At the time of the orthopedic follow-up examination on 10 July 2009, 5 months prior to separation, the examiner recorded that the CI had been wearing his orthosis for 2 months and doing physical therapy, but his symptoms were unchanged.  On examination the CI had tenderness with painful and limited motion. Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and was referred for a Medical Evaluation Board (MEB) under the joint VA/DoD Pilot Disability Evaluation System (PDES).  

The MEB NARSUM 6 August 2008 (4 months prior to separation) noted complaints of “occasional tingling sensation particularly in left lower extremity.”  The CI also reported that he had the “inability to twist and bend his torso, lift objects over 5-10 pounds, and [couldn’t] make sudden movements.” His pain was exacerbated by “sneezing, straining, and using the bathroom.”  The NARSUM referred to the VA exam.  

At the VA Compensation and Pension (C&P) examination on 3 September 2003, 3 months prior to separation, the CI reported that he could only walk between a quarter-of-a-mile and one mile due to back pain.  Physical exam showed tenderness, painful motion, and limited motion. He had normal gait and spinal contour with no spasm noted.  His lower extremity strength, sensation and reflexes were normal.  The loss of height of his T-6 vertebral fracture was 15%.  Of note, the CI related bilateral hip pain that the examiner stated was radiating pain from the back condition.  

The Board directed attention to its rating recommendation based on the above evidence.  The VA rated the back condition 10% coded 5235, based on the VA C&P examination 3 months before separation, citing limitation of forward flexion to 70 degrees.  The PEB rated the back condition 10% coded 5235 (vertebral fracture or dislocation), citing the VA Rating Decision dated 5 November 2009 IAW PDES guidance.  

The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion greater than 60 degrees but not greater than 85 degrees and/or combined ROM greater than 120 degrees but not greater than 235 degrees reported on the VA pre-separation DES program examination.  

There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairments such as weakness with a direct impact on fitness that were separately functionally impairing for duty.  The Board therefore concluded that additional disability rating was not justified on this basis.  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 back condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral hip condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The hips were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  They were reviewed and considered by the Board.  The MEB/pre-separation VA exam found no evidence of disease or disability related to either hip and stated that the hip pain was referred from the back condition.  There was no performance-based evidence from the record that these conditions significantly interfered with satisfactory duty performance.  After due deliberation, and 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 hips and so no additional disability ratings are recommended.  

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

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 AR2016001 0229 (PD201404173)

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