RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04235
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081010

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “chronic back pain from thoracolumbar scoliosis” with a disability rating of 10%.  

CI CONTENTION:  Review requested of all conditions as well as additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20080917	VARD - 20090508	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain From Thoracolumbar Scoliosis	5299-5237	10%	Rotary Levoscoliosis, Thoracolumbar Spine	5299-5237	10%	20090204	
High Frequency Sensorineural Hearing Loss	Not Unfitting	Bilateral Hearing Loss	6100	0%	20090211	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in late 2005 after ruck marching and long runs.  He continued to report intermittent thoracolumbar pain during deployment in early 2007, and was diagnosed with symptomatic double major scoliosis in April 2008.  An MRI on 4 March 2008 showed severe S-shaped scoliosis of the thoracic spine with left curvature of the lumbar spine. 
At the 19 August 2008 MEB physical therapy evaluation, 2 months prior to separation, the CI reported upper and lower back pain rated at 5/10.  Physical examination showed a normal gait and range of motion (ROM) testing revealed flexion to 45 degrees (normal 90) and a combined ROM of 140 degrees (normal 240).  The MEB NARSUM examination, 2 days later, noted complaints of back pain, rated at 3-4/10, and aggravated by sitting greater than an hour, carrying weight greater than 25 pounds on his back, and stooping or bending.  Previous scattered paresthesias and urinary tract symptoms had resolved, and he also reported the ability to use an elliptical trainer and swim for aerobic conditioning, along with some upper body training (avoiding axial spinal loads).  The examiner recorded a non-antalgic gait and non-tender back.  

At the 4 February 2009 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported crushing, aching, sharp back pain, rated from 3-6/10, and “recurrent stiffness, numbness and sometimes shooting pains down both legs.”  The pain was exacerbated by lifting 15-20 pounds from below the waist.  Physical examination showed normal gait,  posture and motor/sensory function.  Thoracolumbar ROM was normal, but with pain noted in all planes and muscle spasm over the left scapula with flexion.  After repetitive use, the thoracolumbar spine was additionally limited by pain but not fatigue, weakness, lack of endurance or incoordination, and dextroscoliosis was noted at T8-9. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5237 (lumbosacral strain), citing spinal deformity, with presumption of permanent service aggravation and satisfactory evidence of painful motion.  The VA also rated the back condition 10%, analogously coded 5237, based on the C&P examination, citing motion limited by pain.  Panel members noted the variation between the MEB physical therapy and VA ROM measurements, and placed higher probative value on the VA examination because the physical findings were consistent with the NARSUM examination and STR.  Although there was insufficient limitation of motion to support a compensable rating, the panel agreed a 10% rating was justified for the presence of painful motion at both the NARSUM and VA examinations.  Although there was muscle spasm during the VA examination, it was not 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 formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Contended PEB Condition:  High Frequency Sensorineural Hearing Loss.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement and did not 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 there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended high frequency sensorineural hearing loss, the panel recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

AR20190008699,  

Dear XXXXXXXXXXXXXXX:

	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.