RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201285 SEPARATION DATE: 20031107 BOARD DATE: 20130219 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M/Motor Transportation), medically separated for chronic back pain. He developed back pain after an airborne operation in September 2002, underwent treatment by physical therapy, acupuncture and a chiropractor but could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was consequently issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The lower back pain condition was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated the lower back pain condition as unfitting, rated 10%, citing criteria of the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with that disability rating. CI CONTENTION: “When discharged I was still in physical therapy and was complaining of tingling and numbness. My unit was being deployed to go to Iraq and stated that since I was not able to deploy I was being sent home instead of being fixed. The tingling and numbness that I was complaining about in service is now rated by the VA 10% for my left leg and 10% for my right leg these conditions are caused by back condition. My spinal condition was skipped over my the Army after my unit came on orders to deploy to Iraq and I was told that the V A would take care of me and that the unit needed my spot to fill with a new soldier that could deploy. I was given a 10% rating by the medical board in Washington D.C. with out being able to speak with anyone. My file was sent up and a paper rating came back that I was told to sign and accept with out chance of appeal. I was sent home with a 10% rating by the Army which I did not agree with. My spine hurts everyday and I am unable to lead a normal life. I have been taking narcotic pain medication since the night of my jump accident. I hate having to take medication for something that should have been fixed by the Army. Since I am now service connected for my bilateral leg radiculopathy due to my spine injury in service I am able to seek treatment. My leg condition was not addressed my the Army even though I was being treated in service for my legs in connection to my spine. Both my spine and legs will only deteriorate as I get older. I believe that if the Army had taken care of me while I was still in I would not have as many problems. I feel that the rating in service was rushed and given to me only to discharge me as fast as possible in order to fill my deployment slot. I have been rated by the VA for conditions that were not addressed by the Army: depression, bilateral knee chondromalacia, tinnitus, and migraine headaches.” ______________________________________________________________________________ SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 (4.a) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; and, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The chronic back pain (encompassing radicular pain) condition meets the criteria prescribed in DoDI 6040.44 for Board purview; and is addressed below in addition to a review of the ratings for the unfitting conditions. The other requested conditions: depression, bilateral knee chondromalacia, tinnitus, and migraine headaches are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service PEB – Dated 20030722 VA* (3 Mos. Pre-Separation) – All Effective Date 20031108 Condition Code Rating Condition Code Rating Exam Chronic Back Pain 5299- 5295 10% Mechanical Low Back Pain 5235-5237 20%** 20030807 No Additional MEB/PEB Entries Bilateral Tinnitus 6260 10% 20030807 Chronic Strain, Index Through Little Fingers, Right Hand 5221 0% 20030807 Chronic Strain, Index Through Little Fingers, Left Hand 5221 0% 20030807 Chondromalacia With Patellar Tendonitis, Right Knee 5099-5019 0% 20030807 Chondromalacia With Patellar Tendonitis, Left Knee 5099-5019 0% 20030807 Not Service-Connected x 2 20030807 Combined: 10% Combined: 30% *Derived from VA Rating Decision (VARD) dated 20031224 ** No change to rating in subsequent VARDs from follow-on C&P examinations ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service- connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. Chronic Back Pain Condition. There were three goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Thoracolumbar ROM (Degrees) MEB Spine Consult ~7 Mo. Pre-Sep (20030409) MEB ~6 Mo. Pre-Sep (20030508) VA C&P ~3 Mo. Pre-Sep (20030807) Flexion (90 Normal) 70 70 80 Extension (30) 30 30 30 (35) R Lat Flex (30) 30 20 30 (40) L Lat Flex (30) 30 20 30 (40) R Rotation (30) -- 30 (45) 30 (35) L Rotation (30) -- 30 (40) 30 (35) Combined (240) -- 200 230 Comment Tenderness No deformity. Strength normal. SLR negative. + Tenderness; spasm + Tenderness; painful motion No spasms Gait normal. Maintained contour. Posture forward leaning. Strength normal. §4.71a Rating 10% 10% 10% The CI developed back pain after an airborne operation in September 2002 (landed on his back after a parachute jump). At that time he was diagnosed with an L2 anterior wedge compression fracture with 30% loss of the anterior vertebral height. Computed axial tomographic scanning demonstrated anterior vertebral body wedging without compromise of neurologic structures. Conservative treatment including physical therapy, acupuncture, and chiropractic manipulation were ineffective in alleviating the pain. A spine surgery consultation for the MEB performed on 9 April 2003, noted the absence of neurological symptoms. On examination, ROM was slightly reduced per chart. Lower extremity strength was normal and straight leg raising (SLR) was negative for radicular signs. The orthopedic consult did not recommend surgery and referred the CI to the MEB board. At the MEB narrative summary (NARSUM) exam dictated 8 May 2003, the CI reported baseline pain 5 out of 10 (10 being maximum degree of pain experienced) accentuated by standing and driving. The CI stated he could not lift, move heavy weapons, load and unload trucks, march, or run, all requirements of his MOS. The MEB physical exam noted mildly reduced spine flexion and lateral rotation, full extension; all movements performed with pain on motion. There was tenderness and muscle spasm noted by the examiner. The examiner did not comment on gait or spinal contour. Reflexes were normal. An X-ray on 8 May 2003 noted the stable appearance of L2 with approximate 30% loss in height. At the VA Compensation and Pension (C&P) examination, 7 August 2003, 3 months prior to separation, the CI reported continuous pain in the mid and lower back radiating to the buttocks and on the posterior aspect of the upper legs. Thoracolumbar ROM was normal except mildly decreased flexion accompanied by pain. There was tenderness but no muscle spasm. Curvature of the spine was maintained and gait was normal. A slightly forward posture was observed (10 degrees of flexion at the waist) secondary to subjective pain and the CI noted increased subjective pain in the lower back and knees areas. Weight bearing was stated to be normal. SLR was stated to be positive with increased back pain and there was radiation of pain to the buttocks and posterior aspect of left upper leg but no tingling sensation in the lower leg. Strength and reflexes were normal. The examiner diagnosed the CI condition as chronic thoracic strain, status post (s/p) compression fracture at L2 with residual, reduced ROM, pain and radiculopathy. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the CI’s back pain condition at 10%, coded 5299-5295 (Lumbosacral strain) using VASRD guidelines in effect of the time of the PEB. The VA assigned a 20% disability based on the current VASRD rating guidelines (codes 5235-5237) citing s/p compression fracture and painful and limited motion in the lumbar spine with flexion limited to 80 degrees. The VA rating decision dated 24 December 2003, applied the current VASRD rating guideline for diseases and injuries of the spine that became effective September 2003, after the PEB adjudicated the case, but before the CI separated. The Board notes that the 2002 VASRD standards for the spine, which were in effect prior to September 2003, were changed to the current §4.71a rating standards effective in September 2003, prior to the CI’s date of separation in November 2003. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation, therefore the Board considered the rating recommendation based on application of the current §4.71a rating guidelines. The MEB and VA C&P ROM examinations support a 10% rating under the §4.71a general formula for rating diseases and injuries of the spine (implemented on 23 September 2003). Although muscle spasm was noted on the MEB NARSUM examination, there was no detail regarding gait or contour to support consideration for the 20% rating. The C&P examination, more proximate to separation documented absence of muscle spasm with preserved spinal contour and normal gait. The presence of the compression fracture of less than 50% of vertebral height does not result in an increased rating under the current VASRD guidelines in effect at the time of separation. The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy. The CI had back pain with radiating pain into the buttocks and thigh. CT scanning did not demonstrate any involvement of nerve structures and there were no objective neurologic impairments. The spine surgeon did not conclude there was evidence of a radiculopathy. The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting. While the CI may have suffered additional radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities. Physical examinations indicated normal strength. There is no objective evidence in this case of a radiculopathy or weakness that could be described as separately functionally impairing. The Board therefore concludes that additional disability rating was not justified on this basis. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) with application of the 4.71a guidelines in effect at separation, the Board recommends a disability rating of 10% for the chronic low back pain condition coded 5237. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 10% coded 5237 IAW VASRD §4.71a. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Chronic Back Pain 5299-5237 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120720, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXX, AR20130006123 (PD201201285) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability description without modification of the combined rating or recharacterization of the individual’s separation. This decision is final. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl XXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)