RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04783
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070321

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, M1 Armor Crewman, medically separated for “chronic back pain due to thoracic degenerative disc disease and spondylolysis” with a disability rating of 10%. 

CI CONTENTION:  Separate back conditions, including mild spondylolysis, degenerative disc disease, a herniated disc, and lumbago should have been rated as well as an 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 - 20070103	VARD - 20070627	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	Degenerative Disc Disease, Thoracic Spine	5242	20%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back pain began in August 2005 after hitting his back on the turret of a tactical vehicle.  On 18 April 2006, spine X-rays demonstrated mild thoracic spondylolysis (defect or stress fracture in the pars interarticularis of the vertebral arch).  Treatment consisted of a muscle relaxer and nonsteroidal anti-inflammatory drug.  At the 7 August 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 8 months prior to separation, the examiner documented tenderness that increased with flexion and noted spondylolysis on X-ray films.  

At a primary clinic visit on 15 August 2006, thoracolumbar spine motion was normal, but painful.  An 18 August 2006 MRI was ordered for mid thoracic back pain with localized numbness and tingling at T9-10 and T10-11, and showed mild to moderate degenerative changes with a small disc protrusion at T6-7, which caused a deformity of the spinal cord at that level.  In September 2006, the CI was evaluated by a chiropractor and underwent treatment.  He was also seen by a pain management specialist and neurologist who recommended tizanidine (muscle relaxant) and neurosurgical consultation.  At a follow-up pain management clinic visit on 12 September 2006, the examiner did not feel the CI would be a good surgical candidate and recommended epidural steroid injections.  

During the 29 November 2006 MEB NARSUM examination, 4 months before separation, the CI complained of chronic back pain, which increased with sitting for more than 45 minutes, lifting more than 5 pounds and with bending.  Physical examination showed a normal gait with no mention of abnormal spinal contour.  There was tenderness at T7 and severe muscle spasms, and straight leg raising (to determine nerve root irritation) was positive for the left leg.  Lower extremity motor strength, sensation, and deep tendon reflexes were normal.  Lumbar (not thoracolumbar) goniometric ROM measurements, in degrees, were:  flexion to 57, extension to 15 (normal 30), right lateral bending to 25 (normal 30), left lateral bending to 28, right rotation to 25 (normal 30), and left rotation to 30, all with pain at motion end ranges.  

At a VA clinic visit on 6 July 2007, less than 4 months after separation, examination revealed full thoracic spine ROM with point tenderness at the T8-10 region on the left and full lumbosacral spine ROM without tenderness.  Straight leg raising was negative bilaterally, and pain was elicited on resisted motion.  Lumbar spine X-rays the same day showed no acute injury and slight levoscoliosis, which may have been secondary to positioning, while thoracic X-rays demonstrated a very mild T8 compression deformity with degenerative changes at the T8-9 level. At the VA Compensation and Pension (C&P) examination on 12 December 2007, 9 months after separation, the CI reported constant mid back pain, rated at 3/10, and incapacitating episodes as often as six times per year, which lasted for 5 day (no evidence of physician prescribed bedrest for incapacitating episodes noted in the STR).   Physical examination showed lumbar tenderness, but a normal gait and no muscle spasm.  Thoracolumbar flexion was to 60 degrees with a combined ROM of 190 degrees (normal 240).  There was no limitation of motion with repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing ROM limited by pain with localized tenderness.  The CI did not report for a scheduled VA examination on 31 May 2007, and the VA rated the back condition 20%, coded 5242, based on the STR, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  Apparently, the VA used the 57 degrees of “lumbar” flexion from the MEB NARSUM as a “thoracolumbar” measurement thereby assigning the higher 20% rating.  

As previously noted, the NARSUM examination documented ROM for the lumbar spine rather than thoracolumbar spine as specified by the VASRD (§4.71a, V).  Lumbar spine flexion of 57 degrees is near normal (60 degrees) for isolated lumbar flexion, and while the NARSUM examiner also documented muscle spasms, there was no record of an abnormal gait.  Panel members additionally noted that the 6 July 2007 VA examination findings of thoracic tenderness, with full thoracic and lumbosacral spine ROM, did not equate to thoracolumbar ROM being limited to 60 degrees.  The panel further determined that the C&P ROM measurements (9 months after separation) had less probative value than the measurements more proximate to separation, and thus agreed that a 10% rating, but no higher, was justified for evidence of painful motion, tenderness or spasm with a normal gait.   While there was evidence of muscle spasm, there was no associated abnormal gait or spinal contour to support the next higher 20% rating.  There was no documentation of intervertebral disc syndrome with incapacitating episodes with physician prescribed bedrest which would provide for a higher rating under that formula.  

Panel members noted the CI contended spondylolysis and degenerative disc disease, which are in the scope of review as well as a herniated disk, not in the scope of review per se, but noted on an MRI, and lumbago, which is a general term for low back pain.  All of the contended conditions are subsumed in the rated diagnosis of chronic back pain, and to provide separate ratings would be contrary to VASRD §4.14 (avoidance of pyramiding), which states:  “The evaluation of the same disability under various diagnoses is to be avoided. . .”  Therefore, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  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 chronic back pain condition.  

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 spondylolysis and degenerative disease conditions, the panel agrees it cannot recommend either condition for an additional disability rating.  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:

[AR NUMBER], XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

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.

Enclosure