RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201287 SEPARATION DATE: 20020704 BOARD DATE: 20130213 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (19D/Scout) medically separated for chronic thoracic and lumbar back pain. He was treated, but was unable to fully perform his military duties, or meet physical fitness standards. He was issued a permanent L3 profile and underwent a Medical Evaluation Board (MEB). The MEB found his back condition (scoliosis) medically unacceptable, and referred him to an Informal Physical Evaluation Board (IPEB). No other conditions were listed on DA Form 3947. The IPEB found the chronic back pain condition unfitting, but determined that it existed prior to service (EPTS), and had followed a course of natural progression without permanent service aggravation. The CI did not accept the IPEB findings and demanded a formal hearing. The Formal PEB (FPEB) found the chronic back pain condition unfitting, and rated it 10%. The CI accepted the FPEB findings, and was medically separated with a 10% disability rating. CI’s CONTENTION: The CI elaborated no specific contention on his application. SCOPE OF REVIEW: The Board’s scope of review as defined in DoDI 6040.44, is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The unfitting back condition (chronic thoracic and lumbar back pain) meet the criteria prescribed in DoDI 6040.44, and is accordingly addressed below. No other conditions are within the Board’s purview. Any condition outside the Board’s defined scope of review may be eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Army FPEB – dated 20020522 VA (~1 mo. Post-Separation) – All Effective 20020705 Condition Code Rating Condition Code Rating Exam Chronic Thoracic & Lumbar Back Pain 5299-5295 10% Deformity of Thoracic Spine 5299-5291 10% 20020830 Lumbar Spine Disease 5003 10% 20020830 .No Additional MEB/PEB Entries. Not Service Connected x 1 Combined: 10% Combined: 20% ANALYSIS SUMMARY: Chronic Back Pain. The CI reported that the onset of back pain was gradual, with no specific precipitating event such as trauma or injury. His pain was in the lower back (lumbar region) as well as the upper back (thoracic region). It started out episodically, and then became constant. He was seen by orthopedics, and it was decided that he was not a surgical candidate. In November 2001, a scoliosis survey showed mild S-shaped curvature of the thoracolumbar spine, with left convex curve measuring 10 degrees at mid-thorax, and right convex curve measuring 11 degrees at the thoracolumbar junction. Many different treatment options were tried for his back pain. In spite of treatment, his pain persisted and a MEB was initiated. The MEB clinical evaluation was in early 2002 at Fort Riley, Kansas. On physical examination, the CI had full range-of-motion (ROM). The final MEB narrative summary (NARSUM) was dictated on 25 February 2002, and the diagnosis was scoliosis. As noted above, the CI was medically separated from the Army on 4 July 2002, due to chronic thoracic and lumbar back pain. Eight weeks later, he had a VA Compensation and Pension (C&P) exam. The examiner noted obvious deformity of the thoracic spine. There was discomfort to palpation over the mid- thoracic region but not the lumbar region. ROM was measured and is shown in the chart below. Rotation was limited bilaterally but was not measured. Both left lateral movement and right lateral movement caused pain. Muscle strength was normal and there were no paresthesias. Sensation was normal. The goniometric ROM measurements from that C&P exam are shown in the chart below. Back ROM VA C&P ~8 weeks Post-Sep (20020830) Flexion 90° Extension 25° Right Lateral Flexion 15° Left Lateral Flexion 20° Right Rotation Not measured Left Rotation Not measured Comment Painful motion The Board carefully reviewed all of the evidentiary information available. The PEB combined the CI’s two chronic back pain problems into a single unfitting condition: “Chronic thoracic and lumbar back pain.” The condition was coded 5299-5295 and rated at 10%. The October 2002 VA Rating Decision unbundled the two back pain conditions, and assigned a rating of 10% to each, resulting in a combined rating of 20%. The Board evaluated whether or not it was appropriate for the two chronic back pain problems to be “bundled” together. The Board must determine if the PEB’s approach of combining the conditions under a single rating was justified in lieu of separate ratings. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the Veterans’ Administration Schedule for Rating Disabilities (VASRD). If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each ‘unbundled’ condition was separately unfitting. After due deliberation, the Board agreed that the evidence supports a conclusion that each of the chronic back pain conditions, separately, would have rendered the CI unable to perform his required military duties. Accordingly, the Board recommends a separate disability rating for each of the two chronic back pain conditions. It is not appropriate for the thoracic pain and the lumbar pain to be “bundled” together, and treated as a single condition. The VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were modified in September 2002, and then were changed again in September 2003. The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment. IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation. Based on the evidence in the treatment record, the Board unanimously agreed that the CI’s thoracic back condition was best described as “moderate.” There was insufficient evidence in the treatment record to support classifying the thoracic back condition as “severe.” After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a rating of 10% for the chronic thoracic back pain condition, IAW VASRD §4.59 and §4.71a. In like manner, the Board unanimously agreed that the CI’s lumbar back condition was best described as “slight.” There was insufficient evidence in the treatment record to support classifying the lumbar back condition as “moderate” or “severe.” After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a rating of 10% for the chronic lumbar back pain condition, IAW VASRD §4.59 and §4.71a. 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the chronic thoracic back pain condition, the Board unanimously recommends a rating of 10%, coded 5291, IAW §4.59 and §4.71a of the VASRD in effect at the time of separation. In the matter of the chronic lumbar back pain condition, the Board unanimously recommends a rating of 10%, coded 5292, IAW §4.59 and §4.71a of the VASRD in effect at the time of separation. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board, therefore, 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 Thoracic Back Pain 5291 10% Chronic Lumbar Back Pain 5292 10% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120622, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202- 3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxxx, AR20130007455 (PD201201287) 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 rating to 20% without 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 xxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)