RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1201643
BRANCH OF SERVICE:  Army	BOARD DATE:  20140318
SEPARATION DATE:  20080308

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (88M20/Motor Transport Operator) medically separated for chronic right upper back pain post-injury and deep laceration.  The chronic right upper back pain post injury and deep laceration 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 U3 profile and referred for a Medical Evaluation Board (MEB).  The chronic right upper back pain condition, characterized as “back pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic right upper back pain post injury and deep laceration” as unfitting, rated 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “My back was sliced open with a knife by my First-Sergeant, the wound was a foot long, four inches wide, and went through four layers of muscle before it scraped the back of my ribs.  I was then deployed, denied physical therapy, tore my the scar tissue in my back three times while in Iraq, still finished my tour of over a year, and finally tore the scar tissue in my back for the fourth time.  I was then sent to the Wounded Warriors Unit.  At the Wounded Warriors Unit, I saw several doctors, was and still am in severe pain.  No one could figure out how to fix the torn scar tissue in my back and when I was referred to a specialist, I was told that he couldn't perform surgery on my scar tissues, because that would in turn cause even more scar tissue, which is the problem in the first place.  I was then tricked into signing papers, while I was on pain medication and told that the VA would take care of me when I got out.  However, I ended up with a small lump sum severance pay, and a 10% rated disability.  I have been in chronic pain ever since, and determined to get the 100% disability awarded to me, because of my serious service-connected conditions.  Furthermore, my back is the main problematic disability, which is what I was put out of the Army for, and is now causing the other side of my back to curve and become painful due to my compensating for the injured side.  All I am asking is for the Review board to do the right thing by me, as I shed blood, sweat, and tears to do the right thing by my country; I completed endless missions, dealt with explosions, and countless mortar attacks in order to do the right thing for you.”

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 Board acknowledges the CI’s information 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 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 (DVA), operating under a different set of laws.  The Board considers DVA 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 acknowledges the CI’s assertions that his disability disposition was unfair.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the Board for the Correction of Military Records (BCMR) and/or the United States judiciary system.  The rating for the unfitting chronic right upper back pain post injury and deep laceration condition is addressed below; 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 BCMR.

RATING COMPARISON:

Service Admin IPEB – Dated 20090317	VA - (1 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Upper Back Pain Post Injury and Deep Laceration	5299-5237	10%	Chronic Thoracic Pain, Residuals of Knife Wound  	5237	10%	20080131	
			Scar on Back/Shoulder	7804	10%	20080131	
			Residuals of Knife Wound to Muscles of the Right
Shoulder Complex, Scapula and Thorax	5301	10%	20080131	
No Additional MEB/PEB Entries	Other x 9	20080131	
Combined:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20080410 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Right Upper Back Pain Post Injury and Deep Laceration Condition. The CI reported to the emergency room on 13 June 2005 with the complaint of a laceration to his right upper back after falling on a pocket knife while engaged in horseplay.  It was noted by the treating surgeon to be 10-12 inches, vertical along the right (of the) spine, approximately 6-7 cm off of the spine.  Multiple muscles were transected.  The right scapula was symmetric with the left.  At surgery, it was found to extend to, but not include, the ribs.  A multi-layer repair was accomplished.  He was observed in the hospital overnight and then released to home care.  The next record in evidence is from 23 October 2006 when he was seen for persistent right shoulder blade/back pain despite duty limitations, medications and a sling.  He had been moving a heavy ammunition box overhead and felt a tear at the site of the previous injury.  Tenderness was noted over two of the muscles which attach to the medial (inner) border of the shoulder blade.  There was neither instability nor weakness of the shoulder; motion was painful though.  He was referred to PT for rehabilitation, but there he was noted to have a weak grip and biceps with limited sensation along the ulnar nerve distribution when seen 2 days later.  His symptoms were thought to be inconsistent, but he was referred to orthopedics due to concern of injury to the nerve bundle in the shoulder region (brachial plexus.)  He was seen in the emergency room on 27 October 2006 and found to have spasm.  An X-ray of the shoulder was interpreted as probable shoulder joint instability as suggested by the location of the humeral head (upper arm bone at the shoulder.)  An acute care clinic note the same day noted that his “pain/tenderness was grossly exaggerated and seem way out of proportion with what you would expect for his history.”  On 30 October 2006, he was evaluated by an orthopedic surgeon.  The CI reported increased pain and “certain sensations of tingling” down his right ring and small fingers.  However, with rest, ice, and hot and cold packs his symptoms had improved.  The neurological examination was normal.  The scar was well healed, but tender.  There was no tenderness over the collar bone or shoulder joint.  The range-of-motion (ROM) was full to both active and passive testing, but elicited pain in the mid-back.  Tests for impingement and instability of the shoulder were negative as was a test for a tear of the shoulder joint lining (labrum) or biceps tendon.  Compression of the cervical spine did not elicit symptoms (normal).  He was thought to have pain in the upper back in the area adjacent to the spine (right paraspinal thoracic back strain) secondary to the prior laceration.  A week later, at the 6 November 2006 PT appointment, the active ROM was improved in all planes lacking 15-20 degrees of normal.  Decreased grip strength of the right hand persisted.  At the 5 December 2006 orthopedic follow-up, the CI had full ROM both actively and passively.  He was neurovascularly intact and the laceration well healed.  He was next evaluated for the back condition in orthopedics on 27 June 2007, prior to deployment.  He reported continued pain, but a desire to remain in the military if possible.  On examination, he remained tender to palpation over the scar, but the examination was otherwise normal.  A magnetic resonance imaging showed post-surgical changes as well as metallic artifact, but was unremarkable otherwise.  He was again seen on 7 August 2007 for persistent pain.  The examination remained normal other than the persistent tenderness.  He was referred to plastic surgery to consider scar revision for pain relief.  This visit is not in evidence.  A U3 profile was issued on 8 August 2007 and he was referred for MEB.  He was seen several more times in both orthopedics and the emergency room for pain management.  The physical findings were unchanged.  The commander noted on 16 August 2007 that the CI could not meet duty requirements secondary to the right posterior laceration and repair.  The narrative summary was dated 4 October 2007 and was based on a physical accomplished 20 September 2007.  The CI reported that he had some pain while deployed from the wear of the protective equipment but that this had diminished during the course of the deployment.  He reported continued pain and the occasional use of a sling.  The examiner noted that the plastic surgery appointment was scheduled for the following December.  On examination, shoulder flexion and abduction were limited to just above the shoulder level.  The back had normal flexion, but a reduction in the other planes of motion and extension.  The limitation in motion was secondary to pain.  No neurological examination was recorded.  Tenderness along the site of the old injury was present, but no spasm, guarding, or abnormal posture or curvature.  He was diagnosed with back pain.  At the VA Compensation and Pension (C&P) examination performed a month prior to separation, the CI reported persistent pain in the region under his right shoulder blade which caused a reduction in ROM of the shoulder.  He used a sling to reduce the pain and reported that gripping with his right hand was painful.  The scar was well healed, but tender.  The strength of his trapezius was rated at 3/5 and spasm was present.  However, the neurological examination, later in the report, was recorded as normal with regards to reflexes, sensation and motor function.  Atrophy was absent.  Both flexion and abduction were improved from the prior measurements, but still less than normal and painful at the extremes of motion.  The examiner also thought that there might be a partial rotator cuff tear.  It is not clear what the basis of this diagnosis was other than the previous X-ray report as none of the provocative tests performed for a rotator cuff tear were recorded.  The Board noted that a rotator cuff tear was not found on numerous orthopedic examinations done previously.  A subsequent VA C&P on 17 September 2010 was over 18 months after separation and outside the normal 12-month period of higher probative value.  However, on examination of the upper extremities, the CI had normal sensation and muscle tone and power.  In addition, there was no atrophy which would be expected were the CI to have had significant muscle weakness as the initial C&P examination indicated.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated chronic right upper back pain post injury and deep laceration after an altercation in June 2005, coded 5299-5237, analogous to lumbosacral or cervical strain and rated 10%.  The VA also coded the back pain as 5237 and rated it at 10%.  The VA also rated the muscle residuals, coded 5301, Group One muscles, at 10% and the scar at 10% coded 7804.  The Board noted that the VA also rated the adjacent structures of the neck and right shoulder.  Neither of these was noted as being medically unacceptable or unfitting and, regardless, neither is within the scope of review of the Board.  The Board considered the variance between the PEB and the VA.  It noted that the code 5301 and 10% rating by the VA was based on the decreased strength present on the VA C&P examination.  Multiple prior examinations had shown a normal neurological examination after the acute re-injury over a year prior to separation.  In addition, a VA C&P examination 18 months after separation showed no muscle atrophy.  The Board noted that while the scar was documented as being tender, the CI was able to wear battle gear while deployed.  The documentation in evidence did not support significant duty impairment solely due to the scar condition.  The Board determined that the evidence does not support the presence of an unfitting scar condition and that the pain was subsumed under the upper back injury.  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 right upper back pain condition.

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 back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the (implied) contended scar and muscle condition, the Board unanimously agrees that it cannot recommend either for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120910, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX
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, AR20140016574 (PD201201643)

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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)