RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04360
BRANCH OF SERVICE:  Army                                                             SEPARATION DATE:  20070528

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-5, Administrative Specialist, medically separated for back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The condition characterized as “mid and low back pain, idiopathic double scoliosis and hypokyphosis with thoracic DJD and minimal L5-S1 disc bulge” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (see rating chart below) for PEB adjudication.  The Informal PEB adjudicated “chronic back pain associated with EPTS severe scoliosis” as unfitting, rated 0%, with likely application of AR 635-40.  The remaining condition was determined to be not unfitting.  The CI initially demanded a formal hearing, however, he subsequently withdrew his request and was medically separated.  

CI CONTENTION:  The CI requested that all conditions be considered.  His complete submission is at Exhibit A.

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 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: 

IPEB - Dated 20070427	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5237	0%	Lumbosacral Strain with L5-S1 Disc Bulge and Thoracic DDD…	5242-5243	20%	20070821	
Left Non-Dominant Thumb Carpometacarpal Sprain	Not Unfitting	Left Thumb, Carpometacarpal, Tendonitis	5024-5228	0%	20070821	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4 	
RATING:  0%	COMBINED RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20071106 (most proximate to date of separation (DOS)).  
ANALYSIS SUMMARY:  

Back Condition.  The narrative summary (NARSUM) noted the CI had a history of thoracolumbar scoliosis which existed prior to service (EPTS), with a long history of chronic low back pain (LBP) due to a remote injury during active duty.  The CI’s mid- to low- BP was aggravated in September 2006 following activation during training.  Imaging including X-rays, bone scan and magnetic resonance imaging of the thoracic and lumbar spines noted scoliosis and degenerative changes, without evidence of acute injury.  Physical therapy and epidural steroid injections were tried without significant relief.  

At the MEB exam 6 March 2007, the CI reported chronic LBP.  The MEB physical exam noted a normal gait.  There was an abnormal spinal curvature due to the scoliosis.  There was no tenderness to palpation (TTP) or muscle spasm noted.  There was painful range-of-motion (ROM), with flexion of 36 degrees (normal 90) and combined ROM of 166 degrees (normal 240).  Lower extremity strength, sensation, and reflexes were normal and the CI was able to heel and toe walk.

At the VA Compensation and Pension (C&P) exam 21 August 2007, 3 months after separation, the CI reported mid-and LBP, without radiation and denied any incapacitation.  The exam noted the abnormal spinal curvatures due to scoliosis.  There was thoracic TTP and muscle spasm with a normal gait.  Thoracolumbar ROM was flexion of 55 degrees and combined ROM of 140 degrees.  Lower extremity strength, sensation, and reflexes were normal and straight leg raise testing was negative.  Thoracic and lumbar spine X-rays 21 August 2007 were unchanged.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 0%, coded 5237 (lumbosacral strain) and the VA rated it 20%, coded 5242-5243 (intervertebral disc syndrome with spinal arthritis).  The Board agreed the evidence in record supports a 20% rating according to the VASRD General Rating Formula for the spine in effect at the time of separation based upon TL flexion “greater than 30 degrees but not greater than 60 degrees” and there was no evidence in record of TL flexion “30 degrees or less” to support the next higher rating of 40%.  The Board also reviewed to see if an evaluation higher than 20% was achieved by coding with 5243 (intervertebral disc syndrome) and rating based on incapacitating episodes, defined by the VASRD as bed rest prescribed by a physician and treatment by a physician.  However, there was no documentation in the record of incapacitating episodes, as defined, to support this approach.  There was also no evidence to recommend an additional disability rating based on a radiculopathy (peripheral nerve impairment) or other neurologic impairment due to the back condition.  The Board thus determined that the evidence supports a 20% rating for the back condition and no higher, and chose to code as 5242 (spinal arthritis).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended left thumb 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.  

Left thumb condition.  The NARSUM notes the CI developed non-dominant left thumb pain at the carpometacarpal joint (CMCJ-thumb joint with hand) without specific trauma in early 2007.  A primary care visit 26 January 2007 diagnosed a ganglion cyst at the base of the thumb.  Wrist ROM was normal and there was TTP of the thumb and pain with abduction.  The CI was referred to orthopedics and was given a thumb splint with some improvement.  The MEB exam cited an 8 February 2007 exam, which noted no swelling or dislocation of the thumb, and an exam 5 March 2007, which noted full thumb ROM with mild swelling over the CMCJ.  The MEB examiner, an orthopedic surgeon, interpreted left elbow, wrist and thumb X-rays as normal and recommended continued conservative treatment.  

The thumb condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance-based evidence from the record that this condition 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 thumb condition and so no additional disability rating is recommended.

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.  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended thumb 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.  

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Back Pain Condition	5242	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141206, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160005518, 

Dear 

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final. Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, 

Sincerely,

Enclosure