RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX bRANCH OF SERVICE: army

CASE NUMBER: pd1101045 SEPARATION DATE: 20060111

BOARD DATE: 20120628

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CW2/W-2 (152DO/Kiowa Warrior Pilot), medically separated for chronic low back pain (LBP) secondary to a burst fracture of L1. The CI did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (152DO) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for Medical Evaluation Board (MEB). Chronic LBP secondary to a burst fracture of L1 were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The MEB forwarded no other conditions for PEB adjudication. The Informal PEB (IPEB) adjudicated the chronic LBP secondary to a burst fracture of L1 condition as unfitting, rated 10%; with application of the Veterans Administration Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% combined disability rating.

CI CONTENTION: “I FEEL THE RATING DECISION DID NOT MATCH MY INJURIES AND THAT I SHOULD HAVE BEEN RETIRED NOT SEPERATED.” The CI lists all VA service connected ratings.

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) 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 ratings for unfitting conditions will be reviewed in all cases. 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 the Correction of Military Records (BCMR).

RATING COMPARISON:

*10% rating added by VARD 20061117 effective 20060112; increased to 20% by VARD 20080519 effective 20060112

ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans’ Affairs (DVA) but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation. The Board utilizes DVA 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 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Chronic Low Back Pain Secondary to Burst Fracture of L1 Vertebra. There were two goniometric range-of-motion (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.

*Combined based on sum of individual ROMs not to exceed the maximum VA normal.

The CI incurred a burst fracture of the L1 vertebra in a helicopter crash due to hostile enemy fire in Iraq on 4 September 2004. CT scan showed mild spinal canal compromise however there was no associated neurologic deficit. The L1 vertebral fracture was treated non-operatively with bracing for 3 months with satisfactory healing. Physician progress notes document that X-rays showed 50% loss of vertebral height with 12 to 16 degrees of anterior angulation (kyphosis). Follow up magnetic resonance imaging (MRI) indicated stable findings. Neurosurgery follow up appointments on 18 October 2004, 6 December 2004, and 7 March 2005, record CI complaint of thoracic back pain without radiation, particularly at night, that was relieved by medication and walking. MRI imaging of the thoracic spine was normal. The 6 December 2004 neurosurgery appointment noted there was no LBP or leg pain. The 7 March 2005 neurosurgery appointment documented continued thoracic pain with sleeping and occasional right hip and left arm discomfort. The neurologic examination was normal. The neurosurgeon noted imaging demonstrated stable kyphosis with moderate scoliosis. Neurosurgical notes do not indicate whether the scoliosis noted on x-rays was developmental in nature, due to the L1 vertebral fracture, or due to muscle spasm. The MEB narrative summary (NARSUM) performed on 20 May 2005, records CI complaint of back pain with muscle twitching when standing for more than 20 minutes, and decreased flexibility. The most significant symptoms occurred at night when lying horizontal for more than 4 hours at a time. The CI reported lumbar pain with lifting more than 25 pounds however he was able to run and bench press. The CI indicated he continued to note slow improvement in his symptoms. On examination, strength, reflexes, sensation, and gait were normal. ROM was stated to be decreased without further detail. X-rays were noted to show a stable kyphosis with 16 degrees of angulation. The neurosurgeon noted that there was an excellent prognosis for full recovery, however at that time return to flying duties was precluded. The physical therapy ROM examination, 2 June 2005, is recorded in the table above. The commander’s letter, dated 18 August 2005, reported that back pain interfered with performance of duties. The MEB referred L1 burst fracture of the L1 vertebra, and back ache not otherwise specified to the PEB.

The PEB performed on 22 September 2005, concluded the back pain condition was unfitting for continued military service and adjudicated a 10% rating coded 5237, lumbosacral strain, based on the MEB NARSUM and service treatment records. In accordance with the VASRD, the thoracic and lumbar spines are rated as a single unit, the thoracolumbar spine, using the general rating formula for diseases and injuries of the spine. The compensation and pension (C&P) examination performed on 11 May 2006, was 4 months after separation. The examiner recorded CI complaint of right lower extremity numbing and tightening sensation associated with lumbar back pain. The examiner noted that “The entire right leg syndrome, including the knee and hip, has not affected him in his current occupation,” however the CI could only run one half mile before onset of symptoms. There was also complaint of thoracic back pain with associated occasional right upper extremity dysesthesia and some reduction in weight lifting capacity and repetitive use such as writing. However, the examiner stated that considering his back condition, upper and lower, the CI “has not been disabled in the past 12 months due to the condition. On examination, the gait was normal. The examiner thought there was a slight scoliosis with tight right rhomboid muscles (by the scapula) and paraspinal muscles on the right thoracic and lumbar region. Thoracolumbar ROM was not reported. The VA granted a 10% rating for myofascial pain of upper and lower back (coded analogously to 8099-8010, myelitis).

A VA Compensation and Pension (C&P) examination, performed on 17 October 2006, was performed for assessment of the thoracolumbar ROM and results are recorded in the table above. Based on this ROM examination, the VA granted an additional 10% rating for back pain in accordance with the VASRD general rating formula for diseases and injuries of the spine. On appeal, this rating was increased to 20% based on scoliosis that was attributed to muscle spasm. Despite basing this rating based on muscle spasm, the VA did not remove the prior myofascial pain rating in accordance with §4.14 avoidance of pyramiding. Although remote from separation, VA examinations 10 December 2008 and 21 May 2009 indicate the CI was doing well, employed in construction. There was infrequent LBP with heavy work, some numbness of the upper back, full ROM without pain, no tenderness, no muscle spasm, no visible scoliosis, normal strength, reflexes and gait.

The Board directs attention to its rating recommendation based on the above evidence. The CI experienced thoracolumbar back pain following the helicopter crash. Imaging and neurosurgical evaluation documented absence of neurologic deficits or symptoms of radiculopathy. The VASRD general rating formula for diseases and injuries of the spine rates the thoracic and lumbar spine as a unit based on limitation of motion or presence of muscle spasm and tenderness or vertebral fracture with loss of 50% or more of height. The CI’s limited combined ROM and presence of loss of vertebral height of at least 50% supports the 10% rating adjudicated by the PEB. The Board discussed whether the scoliosis noted by the neurosurgeon was due to muscle spasm or was a mechanical scoliosis due to the vertebral fracture itself, or a previously unrecognized asymptomatic developmental condition. The Board noted that the C&P examination, performed on December 2008, when the CI was doing well, recorded that there was no scoliosis, implying that the scoliosis present at the time of separation was at least as likely as not, attributable to muscle spasm. The Board discussed that the VA granted two separate ratings for the back. One for myofascial pain, and the other for degenerative disc disease (DDD). DDD itself is not a disability and was not unfitting for continued military service. The persisting back pain was unfitting and was appropriately rated by the PEB as a single rating IAW VASRD §4.71a and §4.14 (avoidance of pyramiding; the evaluation and rating of the same manifestation under different diagnoses is to be avoided). Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the 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. In the matter of the chronic back pain condition, the Board by a vote of 2:1 recommends a disability rating of 20%, coded 5235 IAW VASRD §4.71a. The single voter for dissent (who recommended no change in the PEB adjudication) did not elect to submit a minority opinion. 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:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20111015, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for XXXXXXXXXXXXX, AR20120011977 (PD201101045)

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 XXXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA