RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	 CASE:  PD1200792	
BRANCH OF SERVICE:  Army  	 BOARD DATE:  20140206
SEPARATION DATE:  20020401		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (74B, Information Systems Operator/Analyst) medically separated for thoracic back pain.  The CI reported mid back/inner scapular pain in April 2000 after doing sit-ups for his physical fitness test.  He was not a surgical candidate and completed an adequate trial of nonsurgical treatment without improvement.  The thoracic condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  His profile allowed for alternate aerobic events to satisfy physical fitness standards.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The thoracic conditions, characterized as “thoracic back pain” and “small disc protrusion” were forwarded to the Physical Evaluation Board (PEB) in accordance with (IAW) AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated the thoracic back pain as unfitting rated at 0%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically.

CI CONTENTION:  “I have been unable to engage in any gainful work since my discharge.  I received constant, ongoing medical treatment from the Veterans Administration since discharge.  (I am currently rated 20% for my back injury which is on appeal).  I live with constant chronic back pain.”[sic]

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 thoracic condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Board for Correction of Military Records.

RATING COMPARISON:

Service PEB – Dated 20011128	VA - (1 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracic Back Pain	5099-5003	0%	Limitation of Dorsal Spine	5291	0%*	20020514	
No Additional MEB/PEB Entries	Other x 4		
Combined:  0%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20040417.  Original VARD was not in records.
20091118 VARD-on appeal rating increased to 10% effective DOS and increased to 20% effective 20090713

ANALYSIS SUMMARY:  The Board acknowledges the CI’s sentiment regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.  The Board makes note that the VA exam dated 14 May 2002 was not available in the evidence before it; and, could not be located after the appropriate inquiries.  Any further attempt at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case; and, it was judged by the members that the missing evidence would not materially alter the Board’s recommendations.  The Board is required to provide a rating recommendation based on the VA Schedule for Rating Disabilities (VASRD) rating guidelines in effect at the time of the CI’s date of separation which were replaced by the current spine rating guidelines in September 2003; and the Board did so.

Thoracic Back Pain Condition.  The narrative summary performed approximately 5 months prior to separation notes the CI developed thoracic back pain (BP) approximately 2 years prior to separation, while performing physical fitness testing.  At a Physical Therapy (PT) evaluation completed approximately 22 months before separation, the CI reported that his mid BP was graded 1 to 2 out of 10, aggravated by activities and resolved with rest.  At a PT evaluation completed approximately 17 months prior to separation, the CI reported that his upper-BP was aggravated by walking one and a half miles, getting in and out of a car and improved with rest.  Magnetic resonance imaging (MRI) of the thoracic spine (T-spine) at that time showed a small disc protrusion in the mid T-spine and a possible small bulging disc in the lower T-spine.  A neurosurgical consultant did not think these abnormalities were related to the CI’s pain because they were below the area of pain.  Consequently, a cervical MRI was obtained approximately 13 months prior to separation which was normal and no surgery was recommended.  The CI’s thoracic BP failed to improve despite nonsurgical treatment.

At the MEB exam performed approximately 15 months prior to separation, the CI reported mid BP without radiation, without neck pain, sensory disturbances of the upper or lower extremities or associated neurological abnormalities.  The MEB physical exam noted localized tenderness to palpation in the mid scapular region, normal strength, sensation and reflexes.  Testing for spinal nerve compression was negative.  At the neurosurgical follow up visit, approximately 13 months prior to separation, the CI continued to have mid BP and tenderness in the intra-scapular area.  Notes in the service treatment record (STR) indicated the CI had localized mid BP with full range-of-motion (ROM) of the cervical spine and T-spine, with painful motion of the T-spine; no abnormality of gait, strength, sensation or reflexes; and mild muscle spasm, noted on one evaluation.  The VA Compensation and Pension exam performed a month after separation and the original VA Rating Decision (VARD) not in evidence for review.  The original VARD was derived from the 17 April 2004 VARD which indicated that the 0% rating of the “thoracic spine with arthralgia” condition in effect was continued based on lack of evidence of treatment for thoracic pain since 4 December 2003.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the thoracic BP as unfitting rated at 0% and noted “rated for pain, moderate, intermittent,” coded 5099-5003.  The VA initially rated the T-spine condition as “limitation of the dorsal spine” at 0% and the 0% rating was continued in 2004.  On 16 July 2007, the Board of Veterans Appeals increased the VA rating to 10% with an effective date of 2 April 2002, the day after the CI’s separation.  The Board deliberated the rating of the thoracic BP condition and is required to provide a rating recommendation based on the VASRD rating guidelines in effect at the time of the CI’s date of separation and the Board did so.  The Board considered the evidence, at the time of separation, supported the CI having localized thoracic BP with normal ROM, muscle strength, sensation and reflexes.  Thoracic muscle spasm was noted once in the STR nearly 2 years prior to separation, but not in later treatment notes or at the MEB examination.  Thoracic MRI evidenced degenerative disc disease with disc protrusions.  The Board first reviewed to see if there was evidence in the records to support a compensable rating based on ROM of the T-spine IAW VASRD §4.71a and found that there was not.  However, the Board agreed that the evidence did support the presence of painful thoracic ROM and that the CI’s disability due to thoracic pain met the 10% rating coded as 5291 (limited motion of the dorsal spine) IAW VASRD §4.59 (painful motion).  The Board next reviewed to see if a higher rating was achieved if coded as 5293 (intervertebral disc syndrome [IVDS]) and found that the 10% rating for mild IVDS was met due to persistent localized thoracic pain, but the next higher evaluation of 20%, specified as, moderate, recurring attacks, was not met.  There was no evidence, in the record available, of nerve compression systems, other than pain; such as, demonstrable muscle spasm, absent reflexes or neurological findings appropriate to the site of the involved disc, as specified in the 5293 rating criteria.  The Board next noted that the 10% rating was also achieved using code 5299-5295 (analogously to lumbosacral strain) for characteristic pain on motion, but the next higher 20% rating, specified as, with muscle spasm or loss of lateral spine motion, was not.  The Board concluded that the CI’s disability due to thoracic pain met the 10% rating coded with any of the VASRD rating codes for rating the spine discussed above, but there was no path to a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the thoracic pain condition, coded 5293.
______________________________________________________________________________

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 the USAPDA pain policy for rating the thoracic BP condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the thoracic BP condition, the Board unanimously recommends a disability rating of 10%, coded 5293, 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	
Thoracic Back Pain	5293	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120605, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20140013136 (PD201200792)

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 10% 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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA