RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXX CASE: PD1201964 BRANCH OF SERVICE: ARMY BOARD DATE: 20130404 SEPARATION DATE: 20011019 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (12C20/Bridge Crew Member) medically separated for chronic low back pain (LBP) with scoliosis. The CI developed the chronic LBP in August of 1999 when a netting system rolled on his right side and he hurt his right shoulder and back during this incident. He was treated with physical therapy (PT) and temporary profile, with temporary improvement. He was put back to regular duty but the pain recurred again. The chronic LBP condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). The chronic LBP condition, characterized as “chronic LBP with rotoscoliosis” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated the chronic LBP condition with scoliosis as unfitting, rated 10%, with cited application of DoDI 1332.39 and AR 635-40 and likely application of the US Army Physical Disability Agency pain policy. The CI made no appeals and was medically separated with a 10% disability rating. CI CONTENTION: The CI attached a 2-page statement to his application which was reviewed by the Board and considered in its recommendations. SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting chronic LBP with scoliosis condition is addressed below. 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 IPEB – Dated 20010829 VA - (2 Mos. Post-Separation) Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain with Scoliosis 5299-5295 10% Chronic Lumbosacral Strain with History of X-ray Evidence of Rotoscoliosis 5295 10% 20011220 No Additional MEB/PEB Entries Other x 8 20011220 Combined: 10% Combined: 40% Derived from VA Rating Decision (VARD) dated 20020502 (most proximate to date of separation [DOS]). ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veteran Affairs. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Chronic Low Back Pain with Scoliosis Condition. The narrative summary notes that the CI reported that his back pain was the result of an incident that occurred in August 1999 when a netting system rolled on his right side injuring his right shoulder and back. Attempts at treatment with PT and temporary profile led to only temporary improvement. At the MEB exam about 5 months prior to separation, the CI reported continuing back pain. The MEB physical exam quoted range-of-motion (ROM) studies done by PT that included trunk flexion 90 degrees, right side bend 40 degrees, extension 30 degrees, left side bend 30 degrees, right rotation 50 degrees and left rotation 50 degrees. Strength in the lower extremities was 5/5. No data regarding reflexes, gait or contour is available from that exam. Imaging studies included X-rays done on 25 October 1999, 2 months after the incident, which revealed reversal of the normal lordotic curve with moderate rotoscoliosis of the lumbar spine. A scoliosis survey done on 18 May 2000 showed a 24 degree dextroscoliosis in the low dorsal area with a mild counter levoscoliosis in the lumbar area. In the lateral view, body alignments appear normal. Lumbar spine series done on 1 June 2001 showed minimal scoliosis of the lumbar spine with convexity towards the left. The deviation of the tips of the spinous processes from the midline was not greater than 2 inches. Taking into consideration the magnification, it was interpreted as at the most 0.5 inch. The sacroiliac joints were within normal limits. There was no spondylolysis or spondylolisthesis. At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI reported LBP since 1999 aggravated by bending, lifting, stooping, squatting and prolonged standing or ambulation. The CI denied any significant lumbar muscle spasms, radiation of LBP or significant lumbar radiculopathy. Physical examination revealed painful straight leg raising bilaterally at 65 degrees. The examiner stated that there were no postural abnormalities. Musculature of the back was normal. There were no neurological abnormalities. Flexion was limited to 75 degrees without pain, but all other ROM were normal with mild tenderness noted. Spine X-rays done at the time of that examination showed mild scoliosis and mild narrowing of disc space L4/L5, L5/S1. Diagnosis was “chronic lumbosacral strain with history of X-ray evidence of rotoscoliosis.” The Board directs attention to its rating recommendation based on the above evidence. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD) in effect at the time of separation. The Board notes that the 2001 VASRD standards for the spine were in effect at the time of separation and it must correlate the above clinical data with that rating schedule (applicable diagnostic code is 5295 [lumbosacral strain] or 5292 [spine, limitation of motion of, lumbar]). The PEB and VA chose slightly different approaches to coding but this did not bear on rating. The PEB rated the back pain with scoliosis condition at 10% coded analogously as 5299-5295 (lumbosacral strain) citing characteristic pain on motion but without neurologic abnormality or documented chronic paravertebral muscle spasms. It was also noted by the PEB that scoliosis was a congenital disorder and was not permanently aggravated by service. However, it found it compensable in accordance with 10USC 1207a. The VA characterized the condition as chronic lumbosacral strain with history of X-ray evidence of rotoscoliosis. Like the PEB, it coded the condition 5295 and assigned a 10% rating based on characteristic painful or limited motion. The Board concluded that the evidence available did not indicate muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position which would be necessary to justify a 20% evaluation. There was no limitation at the MEB exam and the VA exam’s ROM limitations were adjudged as slight (10%) under 5292. The Board could find no route to a higher rating and thus after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic LBP with scoliosis condition. The Board concluded therefore that this condition could not be recommended for additional disability rating. 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. As discussed above, PEB reliance on DoDI 1332.39 and AR 635-40 for rating the back condition was operant in this case and the condition was adjudicated independently of those instructions by the Board. In the matter of the LBP with scoliosis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Chronic Low Back Pain with Scoliosis 5299-5295 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20121016, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxx, DAF Director of Operations Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130009568 (PD201201964) 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 and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)