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AF | PDBR | CY2013 | PD2013 02539
Original file (PD2013 02539.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1302539
BRANCH OF SERVICE: Army           BOARD DATE: 20140702
SEPARATION DATE: 20050516


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13B/Cannon Crewmember) medically separated for thoracic back pain. The CI injured his back after lifting jugs of water while deployed to Iraq. Despite treatment, the thoracic spine condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB). The thoracic back condition, characterized as “thoracic ruptured disk” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions for PEB adjudication. The Informal PEB adjudicated thoracic back pain as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting and therefore not rated . The CI made no appeals and was medically separated.


CI CONTENTION: “I had 2 physical conditions which hindered my ability to perform my duties. 1) Hiatal Hernia 2) Ruptured thoracic (causing degenerative disc disease) based upon my research I believe they were underrated on an individual levels as well as a combined rating of only 10 percent. So I’m requesting a reevaluation.”


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 spine condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. The requested hiatal hernia condition was not identified by the MEB or 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.


 RATING COMPARISON :

Service IPEB – Dated 20050329
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Thoracic Back Pain w/disc protrusion at T4/T5 5243 10% Thoracic Spine Scoliosis 5299-5237 20% 20050712
Other x 2 (Not in Scope)
 Other x 3 20050712
Rating: 10%
 Combined Rating: 50%
Derived from VA Rating Decision (VA RD ) dated 200 50913 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus 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 ratable severity at the time of separation.

Thoracic Back Pain Condition. Review of the service treatment record found that the CI was seen in April 2004 for care of a thoracic back injury that occurred subsequent to heavy lifting one year previously while deployed to Iraq. After the injury, he was able to perform his duties for the remainder of the deployment. Persistent pain was evaluated with magnetic resonance imaging (MRI) in October 2004 which showed a small T4-T5 disc protrusion that impinged slightly on the surface of the spinal cord, but without evidence of cord displacement. The pain did not sufficiently respond to medication, multimodality physical therapy, injections or massage. There was no associated surgical indication. The narrative summary dictated on 8 February 2005 (3 months prior to separation) confirmed that since initially injuring his back, the CI experienced no significant improvement in his pain. Painful motion was present on flexion and left rotation.

At the VA Compensation and Pension (C&P) exam on 12 July 2005 (2 months after separation), the CI reported constant moderate to severe pain. Lifting or pushing exacerbated the pain, while medication alleviated the pain. Examination showed a normal gait without assistive devices or braces. He was observed to sit, stand and change body positions rapidly, and did not exhibit any guarding or “significant muscle spasm.” Tenderness was “minimal.” Repetition of motion did not cause additional limitation. The examiner noted that an MRI and an X-ray showed thoracic spine scoliosis. The cited radiographic findings were undated. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.


Thoracolumbar ROM
(Degrees)
 PT ~4 Mo s . Pre-Sep VA C&P ~ 2 Mo s . Post-Sep
Flexion (90 Normal)
 85 ( 85 , 85, 85) 85
Combined (240)
 22 5 235
Comment
 +Painful motion
§4.71a Rating
 10% 10% (VA 20%)

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome). The VA’s 20% rating under an analogous 5237 code (lumbosacral or cervical strain) was assigned based on an assumption that radiographic evidence of scoliosis was due to the presence of muscle spasm implied by the C&P exam. Board members agreed that combined ROM reflected in the chart above justified a 10% rating (“combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees”). Criteria for a higher rating were considered. VASRD §4.71a stipulates a 20% rating for “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour”; but makes no provision for higher rating of abnormal contour as an incidental finding on imaging studies. Furthermore, the minimal ROM impairment and associated physical findings reflected in the evidence above are clinically incongruent with the degree of muscle spasm required to cause scoliosis. Therefore, members agreed that there was insufficient justification for the next higher 20% rating. The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the 10% criteria under that formula. 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 thoracic 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 thoracic back pain 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 recharacterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131202, 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 , AR20140019636 (PD201302539)

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 of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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