RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01465
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030428

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Food Service Specialist, medically separated for “back pain” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel 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 panel 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 - 20030317 	VARD - 20070126	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain	5299-5295	10%	Low Back Pain	5237	NSC 	STR 	
Mild Scoliosis	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 2000 during Basic Training, which was exacerbated by a motor vehicle accident in June 2001.  Radiographic (X-ray) and magnetic resonance imaging (MRI) studies were normal except for mild scoliosis.  The latter was opined to be congenital and “non-contributory” to the CI’s ongoing back pain.  There were multiple STR clinical entries that documented the absence of radicular symptoms and normal neurologic examinations (5/5 strength), with no entries to the contrary.  There were multiple STR entries that documented grossly normal range of motion (ROM) and the absence of spasm, although some noted painful motion; and, there were no entries to the contrary (except as addressed below).  There was ample STR documentation of a normal gait, and there was no documentation of acute attacks (incapacitating flare-ups).  A neurosurgical consultant opined that surgery was not indicated, and conservative treatment did not result in sufficient improvement to allow unrestricted duty.  

The 30 January 2003 NARSUM examination, 3 months before separation, and was preceded by a near-identical one from 18 March 2002 by the same orthopedist.  It must be noted, however, that the NARSUM was duplicative of an evaluation titled “administrative return summary” (the CI was returned to CONUS from Korea) by a different provider that was dated 5 October 2001, 19 months before separation.  Much of the NARSUM content, including most examination findings and the ROM evidence elaborated below, was verbatim from this document.  Members thus concluded that the NARSUM reflected much older evidence, and specifically noted that there were STR entries that documented normal ROM after the sourced examination.  

The NARSUM history documented non-specific back pain without neurological complaints that was exacerbated by prolonged standing or lifting more than 20 pounds, although the CI was able to run and sit for extended periods.  The physical examination recorded tenderness and normal neurological findings (5/5 strength, intact sensation, symmetric reflexes).  The ROM findings (verbatim from the sourced examination) were “able to forward flex approximately 30 degrees before she has pain ... can extend posteriorly to approximately 30 degrees [normal extension].”  There was no indication that flexion beyond the onset of pain was attempted.  There was no VA Compensation & Pension examination in evidence proximate to separation.

The panel directed attention to its rating recommendation based on the above evidence.  The 2003 VASRD coding and rating standards for the spine, which must be applied to the panel’s recommendation IAW DoDI 6040.44, differed significantly from the current §4.71a general rating formula for the spine.  The PEB’s 10% rating under the older code 5299-5295 (analogous to lumbosacral strain), citing “pain with motion” that was consistent with the 10% criterion of the “characteristic pain on motion” of code 5295.  None of the criteria for a higher rating under that code were in evidence.  The older code 5292 (limitation of motion) conferred a 10% rating for “slight,” 20% for “moderate,” and 40% for “severe” limitation.  The only evidence contrary to the ample evidence for normal ROM was the above 30% flexion comment quoted by the NARSUM.  

Members agreed that this was insufficiently probative in support of a higher rating under code 5202.  It was temporally remote from separation and followed by ample evidence that indicated ROM had improved to normal.  Furthermore, it really only established the presence of painful motion starting at an estimated 30 degrees, and was not valid for determining what true ROM limitation, if any, was present.  The only remaining code available in the 2003 VASRD subject to consideration was 5293 (intervertebral disc syndrome).  The latter was neither clinically applicable nor favorable given the absence of evidence for “recurring attacks” requisite for a higher rating.  There was no evidence for ratable peripheral nerve impairment to support additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication of the back pain condition.

Contended PEB Condition:  Mild Scoliosis.  As noted above, the mild congenital scoliosis was not believed to be a contributor to the CI’s back pain condition.  The NARSUM emphasized this and minimized the significance of this finding.  The condition was forwarded by the MEB as medically acceptable and was not referenced in the profile or the commander’s performance statement.  

The panel’s main charge was to assess the fairness of the PEB’s determination that the condition was not unfitting.  The panel’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Members agreed that there was no performance-based evidence that indicated the condition 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 panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the mild scoliosis condition; thus, it was not eligible for rating.

BOARD FINDINGS:  In the matter of the back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended mild scoliosis condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification and no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150602, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

AR20170008508, XXXXXXXXXXXXXXXXXX

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Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.