RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02651
BRANCH OF SERVICE:  Army	BOARD DATE:  20150303
Separation Date:  20080527

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Special Electronic Devices Repairer) medically separated for low back pain (LBP) with scoliosis.  The LBP could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The low back condition, characterized as “low back pain secondary to scoliosis,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (seasonal allergic rhinitis as medically acceptable) for PEB adjudication.  The Informal PEB adjudicated “chronic thoracolumbar back pain due to scoliosis” as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The allergic rhinitis condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I believe my rating should be change because my L4/L5 and L5/S1 disk herniation and disk bulging on L3/L4 with degenerative joint disease and also because of my sleep apnea.  Also I’m 100 percent unemployability for VA rating.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20080305	VA - (2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracolumbar Back Pain due to Scoliosis	5299-5237	20%	Lumbosacral Strain	5237	10%*	20080401	
Other x 0 (Not in Scope)	Other x 7	
Combined:  20%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20080731 (most proximate to date of separation [DOS])
* VARD 20090506 increased the back rating to 20% effective 20090323.  VARD 20091109 changed the back condition to “L4/L5 and L5/S1 Posterior Disk Herniation and Mild Disk bulging at L3/L4 with Degenerative Joint Disease and increased the rating to 40% effective 20090930.

ANALYSIS SUMMARY:

Low Back Pain with Scoliosis Condition:  During the course of Boot Camp and Advanced Individual Training, the CI developed lower back pain that worsened over time.  The lumbar spine X-ray for chronic back pain showed scoliosis of the lower dorsal and upper lumbar spine.  The primary care provider noted a LBP history since Basic Training.  There were physical exam findings of lumbosacral spine tenderness to palpation; muscle spasms; and pain on motion.  The CI was followed by physical therapy (PT) from April 2007 to March 2008.  Scoliosis X-rays confirmed the scoliosis of the thoracolumbar spine.  The Orthopedist noted pain localized to the lumbar area without radiation to the lower extremity and worse with wearing a rucksack.  The examiner confirmed the diagnosis of scoliosis.  A lumbar spine magnetic resonance imaging (MRI) demonstrated mild disc bulging at L4-5 and L5-S1 without significant neuro foraminal or central canal narrowing which was unchanged on repeat MRI scan a month later.  The PT approximately 5 months prior to separation completed range-of-motion (ROM) evaluations for the MEB which are summarized in the chart below.  The MEB examiner referenced the complete physical exam for the back documented on the MEB History and Physical Form (DD Form 2808, Report of Medical Examination), approximately 5 months prior to separation, again summarized in the chart below.  The MEB narrative summary (NARSUM) exam approximately 4 months prior to separation documented that the CI was functionally impaired in that he was unable to perform his duties such as run, ruck march, and bear weight on his back secondary to scoliosis.  The examiner diagnosed low back pain secondary to scoliosis as existing prior to service; however, there was service aggravation.  The CI underwent a second set of ROM measurements by PT for the MEB approximately 2 months prior to separation summarized below.  The VA Compensation and Pension (C&P) exam approximately a month prior to separation documented daily non-radiating back pain located above the belt line.  He used a TENS unit with good relief as well as a muscle relaxant and a non-steroidal anti-inflammatory drug.  The VA C&P physical exam findings are summarized in the chart below.

There were two 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)	Form 2808 5Mo. Pre Sep	PT ~4 Mos. Pre Sep	C&P ~2 Mos. Pre-Sep	
Flexion (90 Normal)	MEB examiner referred to this PE	45	80	
Combined (240)		165	205	
Comment	Normal gait; Pos. tenderness, muscle spasm, & painful motion; Normal strength, reflexes, & sensation; Neg. straight leg raise	ROMs for NARSUM; Normal gait; No Deluca criteria; Pos. painful motion	Normal gait w/ cane use; Pos. painful motion; No muscle spasm No Deluca criteria; Normal strength, reflexes, & sensation	
§4.71a Rating	N/A	20% (PEB 20%)	10% (VA 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic thoracolumbar back pain due to scoliosis condition as 5299 analogous to 5237 lumbosacral or cervical strain and rated at 20%.  The VA coded the lumbosacral strain condition as 5237 and rated at 10%.  The VARD dated 5 June 2009 increased the back rating to 20% effective 23 March 2009.  The “General Rating Formula for Diseases and Injuries of the Spine” considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  The CI met the 20% rating criteria for “Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  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 thoracolumbar back pain due to scoliosis 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 chronic thoracolumbar back pain due to 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131208, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD 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 XXXXXXXXXXXXXXXXXXXX, AR20150011447 (PD201302651)

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		  XXXXXXXXXXXXXXXXXXXX
			 Deputy Assistant Secretary of the Army
			      (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA