RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2018-00549-2
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080224

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Cavalry Scout, medically separated for “vertebral fracture, compression of L1” with a disability rating of 0%.  The case was previously evaluated by the PDBR, and the panel recommended modification of the Physical Evaluation Board (PEB) adjudication from 0% to 20%.  The CI disagreed with the determination and appealed to the United States District Court of the appropriate jurisdiction.  The Court granted the parties’ joint motion for remand and stay of proceedings.  The case was remanded to the Army Review Boards Agency, which referred the case back to the PDBR for reconsideration of the disability rating.  The complete case file, to include additional documentation provided by counsel representing the CI, was evaluated by a new PDBR panel comprised of different members.  These proceedings reflect a de novo review and analysis confined to the unfitting PEB condition.   

ANALYSIS SUMMARY:  

Vertebral Fracture.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in January 2005 after an IED explosion impacted his vehicle while deployed to Iraq.  He was placed on quarters for about a month and was able to complete his tour with the use of medications.  

In March 2007, X-rays revealed an L1 vertebra wedge compression fracture and lower back degenerative changes.  An MRI in April 2007 showed an L1 anterior compression deformity without evidence of retropulsion of bone into the spinal canal.  There was also degenerative disc disease at L5-S1 with central disc bulging and a likely annular tear, with no evidence of a disc herniation or significant foraminal compromise.   

At a pain clinic visit on 12 April 2007, 10 months prior to separation, the CI was able to heel and toe walk, and the examiner recorded pain during forward flexion to 30 degrees, which increased with right and left rotation.  The 23 May 2007 neurosurgical consult noted a normal gait and posture, but spasm and multi-level tenderness; range of motion (ROM) was limited in all planes.  The CI reported back pain during a pain management visit on 31 May 2007, and the provider noted normal forward and bilateral flexion, “abnormal” extension, and no pain elicited during ROM tests.  At a physical therapy appointment on 25 June 2007, the CI stated that regular swimming and stretching provided some relief.  Physical findings showed a normal gait but painful back ROM was “guarded and limited in all planes about 75%.” 

The 3 July 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 8 months before separation, noted decreased ROM with pain.  During six pain management follow-up appointments throughout July, September, and October 2007, there were no major changes in the CI’s symptoms.  The provider noted no significant long-term improvement through pain interventions, including injections or medications.  

The 29 October 2007 MEB NARSUM, 4 months prior to separation, recorded pain responses to multiple maneuvers that were not anticipated to cause pain based on the identified spinal pathology.  The examiner referred to physical findings and goniometric ROM measurements he documented on 23 October 2007, which showed “good heel and toe walk” and normal posture/gait, although the CI “walked very slowly.”  There was no lumbar spasm, tenderness, or deformity.  Forward flexion of the lumbar spine was to 15 degrees with a combined ROM of 140 degrees, after three repetitions.  While on the table in a supine position, the CI was able to “flex at the waist to 85 degrees with his legs fully extended.”  The examiner noted complaints of pain during all motions.  

At the 15 January 2008 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported continued back pain that radiated to both knees and significantly limited sitting, standing, lifting, and walking; and prevented driving and going up and down stairs.  He also reported back pain that caused 15 episodes of incapacitation over the previous 2 years and required hospitalization for 1-2 days.  The examiner first noted the CI walked “very cautiously.”  Inspection of the lower back revealed “a tremendous amount of pain, spasm, and tenderness to pressure and touch,” with “muscle spasm was so strong that he appeared to have mild scoliosis convex to the right, which would correct itself at times.”  Measured lower back ROM showed flexion to 30 degrees (normal 90), lateral flexion to 20 degrees bilaterally (normal 30) and rotation to 25 degrees bilaterally (normal 30).  There was no change in ROM with repetition, and no measurement was recorded for extension.  

The 21 January 2009 VA C&P examination, 11 months after separation, noted CI complaints of constant back pain, unchanged from his previous examination.  The pain continued to restrict activities and required using a cane daily.  The examiner documented an antalgic gait and stated the CI was “very slow and deliberate, every movement is carefully planned, slow and associated with extreme pain response.  Examination therefore was inadequate, at best.”  He could not heel and toe walk.  The lumbar spine was “excruciatingly tender over the well-healed L1 compression fracture.”  Lumbar ROM was “negligible to minimal, with forward flexion 20 degrees, extension 5 degrees, side bending less than 5 degrees” with sharp pain.”  Provocative testing could not be performed “due to lack of patient cooperation secondary to pain.”  The examiner assessed the CI was “markedly symptomatic” and not able to tolerate the examination.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5235 (vertebral fracture or dislocation), citing “insufficient objective medical evidence that pain significantly limits functional ability in accordance with the DeLuca criteria.”  The VA rated the back condition 40%, coded 5235-5237 (vertebral fracture or dislocation–lumbosacral strain), based on the 15 January 2008 C&P examination, citing “forward flexion of the thoracolumbar spine of 30 degrees or less.”  The ROM measurements documented in the STR were of particular interest during panel deliberations, with panel members noting the broad variations and disparities in the recorded values.  Six separate pain clinic entries noted that the “lumbosacral spine demonstrated full range of motion,” but did not provide numerical values.  Three weeks after the last referenced clinic visit, the MEB examiner recorded forward flexion to 20, 13, and 15 degrees.  The C&P examiner documented flexion to 30 degrees 3 months later.  Normal value ranges for the lumbar spine were not offered in the STR, and VASRD-compliant thoracolumbar spine measurements were not reported in the NARSUM and second C&P examination (21 January 2009).  Therefore, panel members agreed, these examinations offered limited probative value. 

After prolonged deliberation, the panel concluded that although there were aspects of the clinical examinations in the STR that warranted a lower disability rating, the VA C&P examination most proximate to separation provided greater probative value, given that it was the only examination that demonstrated VASRD-compliant thoracolumbar spine measurements.   Therefore, the panel agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The panel therefore concluded that an additional disability rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the low back condition, coded 5235.  

BOARD FINDINGS:  In the matter of the vertebral fracture, the panel recommends a disability rating of 40%, coded 5235 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Vertebral Fracture, Compression of L1	5235	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20181001, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 
Exhibit D.  Remand Order, dated 25 July 2022
Exhibit E.  U.S. District Court Remand Complaint, dated 19 May 2022
Exhibit F.  Supplemental PDBR Submission, dated 24 August 2022

AR20220010563

Dear XXXXXXXXXXXX:

           On remand from the U.S. District Court for the District of Columbia, the Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and recommended to re-characterize your separation as a permanent disability retirement with the combined disability rating of 40% effective the date of your medical separation for disability with severance pay. I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR).  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, 1835 Army Boulevard, Building 2000, JBSA, Fort Sam Houston, TX 78234.

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXX.

Sincerely,