RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-03186
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Military Police, medically separated for “chronic non-radiating thoracolumbar back pain associated with scoliosis” with a disability rating of 0%.  

CI CONTENTION:  “Please see VA records.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20051229	VARD - 20060621	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non-Radiating Thoracolumbar Back Pain… 	5299-5237	0%	Lumbar Spine Condition	5237	10%	20061124	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Non-Radiating Thoracolumbar Back Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back pain began in July 2003 in basic training after ruck marching for the first time.  He completed training in spite of the back pain, but it worsened after constantly wearing body armor while deployed.  A scoliosis survey on 31 May 2005 showed a right convex 29-degree curvature of the thoracic spine, a short segment left convex 24-degree curvature of the thoracolumbar spine, and a convex curve to the right of the lumbar spine.  At a scoliosis clinic visit on 2 August 2005, the examiner indicated that symptomatic scoliosis failed retention criteria.  On 1 September 2005, X-rays demonstrated spinal curvature with the remainder of the bones, joints, and soft tissues noted to be normal with no evidence of fracture, malalignment, or intrinsic bony abnormality.  The CI was unable to return to duty due to an inability to wear protective armor.

During the 1 September 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, he reported back pain and scoliosis.  Physical examination showed 29 degrees of curvature of the thoracic spine to the right and curvature of the lumbar spine, as well as tenderness to the right trapezius muscle.  The 16 September 2005 MEB NARSUM examination noted complaints of constant dull pain in the upper and mid thoracic spine that often radiated to the right upper scapular area.  Pain was rated at 2/10, and up to as much as 9/10 with running more than 2 miles, wearing an armored vest, or even wearing a vest while patrolling in his military police vehicle.  The pain improved with rest, hot soaks, nonsteroidal anti-inflammatory drugs, massage and unloading weight from his shoulders.  Physical examination showed an obvious curvature of the thoracic and lumbar spine.  The examiner cited full ROM and no spinal step-off, but noted diffuse thoracic tenderness.  Strength and sensation were intact.  

At the 2 May 2006 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported constant mid-and-upper back pain, with twice weekly exacerbations rated at 8/10 and brought on by prolonged ambulation, lifting heavy objects and prolonged sitting.  Physical examination showed normal posture and gait, and no pain with heel and toe walking.  There was normal lordotic curvature with moderate scoliosis with elevation of the mid-thoracic region, but no spasm or guarding noted.  Measured ROM showed flexion to 90 degrees (normal) and a combined ROM of 215 degrees (normal 240), without painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, analogously coded 5237 (lumbosacral strain), citing pain-limited motion, with likely application of the US Army Physical Disability Agency pain policy.  The VA rated the back condition 10%, coded 5237, based on the C&P examination, citing combined thoracolumbar ROM greater than 120 degrees, but not greater than 235 degrees.  While there was no limitation of thoracolumbar spine motion in the MEB NARSUM to support a compensable rating, the examiner noted the presence of localized tenderness, which warrants a 10% rating.  Additionally, the VA C&P examination recorded a combined ROM of 215 degrees, which also supports 10% rating, albeit this was 3 months after separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the back condition, coded 5299-5237.

BOARD FINDINGS:  In the matter of the chronic non-radiating thoracolumbar back pain associated with scoliosis, the panel recommends a disability rating of 10%, coded 5299-5237, IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Non-Radiating Thoracolumbar Back Pain Associated With Scoliosis	5299-5237	10%	

The following documentary evidence was considered:

AR20190008707, 

Dear XXXXXXXXXXXXXX:

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.

Enclosure