RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01709
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20030814

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Medium Helicopter Repairer, medically separated for “thoracic and low back pain,” with a disability rating of 10%.  

CI CONTENTION:  The CI’s conditions continue to worsen and negatively impact daily activities.  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 - Dated 20030421	VARD - 20040218	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracic and Low Back Pain	5299-5295	10%	Chronic Low Back Pain	5295	NSC**	STR	
Scoliosis	Not Unfitting 	Scoliosis, Thoracic and Cervical 	5299-5291	0%**	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	
**VARD dated 20041211 service connected the lower back rated at 10% (5237) and increased scoliosis to 10% (5299-5243) linking the condition to the thoracic spine condition effective the day after separation.  

ANALYSIS SUMMARY:  

Thoracic and Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s mid and lower back pain condition began in September 2001 after lifting multiple heavy objects and/or falling on the ice.  

The 6 March 2003 MEB NARSUM examination, 5 months prior to separation, noted complaints of back pain with occasional pain radiating into the legs.  Physical examination showed scoliosis (elevated left shoulder, left rib hump on forward bending, lumbar hump, and a slight round back deformity.  The forward bend brings the fingertips to approximately 25 cm of the floor.  Lateral bend brings the fingertips on the left to 20 cm of the radial head on the right to 5cm.  Rotation to the left is 90 degrees and to the right is 45 degrees.  From a lying position, the CI could bring the knees to the chest and the chin to the knees without great difficulty.  Provocative testing for radiculopathy was negative.  Diagnostic imaging (MRI and X-rays) of the thoracic spine revealed mild thoracic scoliosis with no evidence of Scheuermann's disease.  X-rays of the lumbar spine were normal.  

At the 8 November 2004 VA Compensation and Pension (C&P) evaluation, 15 months after separation, the CI reported pain in the spine from the neck, thoracic area and lower spine.  Physical exam showed a normal gait with tenderness and painful motion of each spine segment, with spasms in the lower back.  

The panel directed attention to its rating recommendation based on the above evidence.  In accordance with DoDI 6040.44, the panel is required to recommend a rating IAW the VASRD in effect at the time of separation.  The panel noted that the 2003 Veteran Administration Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards effective 26 September 2003.  The panel must correlate the above clinical data with the 2003 rating schedule.  The applicable coding options for this case are excerpted below:  

5291 Spine, limitation of motion of, dorsal:
Severe..................................................................................................................................... 10
Moderate................................................................................................................................ 10
Slight......................................................................................................................................... 0

5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40	
Moderate ................................................................................................................................. 20	
Slight ........................................................................................................................................ 10

5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, 
marked limitation of forward bending in standing position, loss of lateral motion 
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion ...................................................... 40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
in standing position ............................................................................................................. 20
With characteristic pain on motion ......................................................................................... 10

The PEB combined the thoracic and lower back pain conditions as a single unfitting condition coded 5299-5295 (analogous to lumbosacral strain), and rated 10%, citing pain on motion [2003 VASRD considers dorsal [thoracic] and lumbosacral [lower back] as separate spine segments for rating].  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either the thoracic spine over the lower back.  Since undue speculation would be required to conclude that impairment from either spine segment would not have unacceptably interfered with MOS performance, members agreed that each spine segment was reasonably justified as separately unfitting.  

The VA did not originally service-connect the lower back condition and rated the thoracic spine (and cervical) scoliosis condition at 0% coded 5299-5291 (dorsal spine limitation of motion) citing no examination evidence based on a missed C&P examination.  Following the C&P examination 15 months after separation, the VA, using the newer spine criteria, rated the lower back at 10% coded 5237 (lumbosacral strain), and rated the thoracic spine scoliosis 10% coded 5299-5243 (intervertebral disc syndrome), citing painful motion for each condition.  The panel noted that following VA appeals, through 2008, the CI was rated 40% for each condition.  

The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either the thoracic spine over the lower back.  Since undue speculation would be required to conclude that impairment from either spine segment would not have unacceptably interfered with MOS performance, members agreed that each spine segment was reasonably justified as separately unfitting.  The panel adjudged that the NARSUM examination had the highest probative value for rating due to the remoteness of the VA examinations.  

The panel considered that the NARSUM measurements indicated slight limitation of the dorsal (thoracic) spine segment which would rate 0% under code 5291.  There was insufficient objective evidence of painful motion of the thoracic spine to warrant a 10% rating IAW VASRD §4.59 (painful motion).  There was slight limitation of the lumbar spine segment which would rate 10% under code 5292, which also includes painful motion.  Separating the dorsal and lumbar spine as individually unfit and rated would provide for a combined 10% rating and provide no change to the PEB 10% adjudication.  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 for the thoracic and low back pain condition.  

Contended PEB Conditions:  Scoliosis.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not specifically profiled (“back pain”) or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the thoracic and low back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended 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 or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150112, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170008845, XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	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.

Sincerely,					      
						      					
Enclosure