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AF | PDBR | CY2012 | PD2012 00754
Original file (PD2012 00754.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1200754
BRANCH OF SERVICE: Army  BOARD DATE: 20130806
SEPARATION DATE: 20020808


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92R/Parachute Rigger) medically separated for chronic upper back pain with scoliosis. The CI sustained an injury to her upper back in July 2001 after a parachute landing. The upper back condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty. Her profile allowed for alternate aerobic events to satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The back condition, characterized as “chronic back pain” and “scoliosis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “chronic upper back pain with scoliosis” as unfitting, rated 10% referencing the Department of Defense Instruction (DoDI) 1332.39. The CI made no appeals, and was medically separated.


CI CONTENTION: “Condition has progressed. Now I have degenerative disc disease in my back and neck which causes pain daily and limits my ability to do specific physical activities.”


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 back condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. The requested neck condition was not identified by the PEB, and thus is not 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. The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; 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, operating under a different set of laws.


RATING COMPARISON:

Service IPEB – Dated 20020529
 VA - (3 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Upper Back Pain with Scoliosis
 5299-5295 10% Chronic Upper Back Pain with Scoliosis 5299-5290 10% 20020510
No Additional MEB/PEB Entries
 NSC x 2 20020510
Rating: 10%
 Rating: 10%


ANALYSIS SUMMARY: The physical examination portion of the VA Compensation and Pension (C&P) was not available in evidence before the Board and could not be located after appropriate inquiries. Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case; and, it is was judged by the members that the missing evidence would not materially alter the Board’s recommendations.

Upper Back Pain with Scoliosis. The CI reported onset on mid upper back pain, between shoulder blades beginning in July 2001. Thoracic spine X-rays obtained 3 December 2001 revealed no evidence of trauma, but a slight left scoliosis. No further radiographs are included in the record, at this time, but numerous magnetic resonance imaging (MRI) exams of the thoracic and lumbar spines obtained in 2006, 4 years after separation reveal no evidence of disc disease or any old trauma. The CI was treated with multiple modalities without sustained improvement. At the narrative summary (NARSUM) MEB evaluation on 29 April 2002, 3 months prior to separation, the CI reported continued pain without radiation or numbness. The MEB physical exam mentions no clinical scoliosis. Some tenderness was present on palpation of the midline mid upper back and at the medial border of the scapulae. Range-of-motion of the neck was normal. Flexion of the back was to within 14 inches of the floor and back and side bending was normal. Motor, sensory and reflexes were normal in the arms and legs. The MEB examiner referenced thoracic X-rays showing a mild scoliosis and a ‘normal MRI evaluation’ of undefined date. At the C&P exam performed on 10 May 2002, 3 months prior to separation, the CI reported back pain with over-exertion or prolonged sitting. The physical examination section of this exam is not in the record of evidence (see analysis summary above), but it is referenced in the VA rating decision (VARD) of 19 August 2002 which notes a ‘slight limitation of motion with tenderness of the muscles of the upper back’.

The Board directs attention to its rating recommendation based on the above evidence. The Board is required to evaluate the back condition using the Veterans Affairs Schedule for Rating Disabilities (VASRD) rules in effect at time of separation, and did so. The PEB and the VA both combined the back pain and scoliosis conditions and rated 10%; the PEB using code 5295, lumbosacral strain, citing characteristic pain on motion, and the VA using 5290, limitation of motion, citing slightly reduced back motion. A higher rating of 20% under 5295 would require muscle spasm on extreme forward bending; a rating of 20% under 5290 would require the condition to be ‘moderate’ in extent neither supported by the record in evidence. The Board unanimously agreed the NARSUM and C&P examination, as referenced in the VARD, were similar with both supporting the mid-back condition to be ‘slight’ in nature and a 10% rating. The Board unanimously agreed the majority of symptoms in the record reference the mid to upper spine area and was, thus, unable to consider additional rating under any other spine area code. The Board agreed that the scoliosis condition was mild, existed prior to service, was probably service aggravated and contributed to the back pain condition, but could not be rated separately IAW §4.14 (avoidance of pyramiding). There was no evidence of ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication. The Board found no VASRD sanctioned pathway to a higher rating under any other applicable code. 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.


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 DoDI 1332.39 for rating the back was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the back 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 for consideration.


RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:
UNFITTING CONDITION
 VASRD CODE RATING
Upper Back Pain with Scoliosis
 5299-5295 10%
RATING
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120614, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for AR20130019764 (PD201200754)

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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