RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX               	                      BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1100232 	                             SEPARATION DATE:  20051012
BOARD DATE:  20120321

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Guard/Reserve (AGR) SSG/E-6 (42A, Human Resources) medically separated for chronic low back pain (LBP) and chronic neck pain.  She was treated, but did not respond adequately to fully perform her military duties.  She underwent a Medical Evaluation Board (MEB).  Mechanical LBP and cervical neck pain were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  Eight other conditions, as identified in the rating chart below, were listed on the MEB submission as medically acceptable.  The PEB found the LBP and neck pain conditions unfitting, and rated those 10% each.  The other MEB conditions were all found to be not unfitting, and not ratable.  The CI made no appeals, and was thus separated with a 20% combined disability rating.

CI CONTENTION:  The CI states, “I deal with the pain and have to take medication on a daily basis.  I have had injections administered in the lower back and having to take more medication due to pain worsening over time.  I am currently in a job profession that I cannot see myself in too much longer due to progression of the pain in my lower back and pain in neck and shoulders.  Before I entered the military and had the accident in 1995, I use to run and lift weights with no problem.  I never had an issue with pain or with my weight.  Since the accident and starting to have issues with my neck and shoulders I have had problems with exercising consistantly due to the pain.  Therefore this has caused problems with my weight and I have dealt with emotional turmoil due to this.  I am considered obese due to medical charts.  My employer is requiring that I complete a Physical Readiness Test (PRT) and maintain a height and weight standard.  For days after completing the PRT I suffer from the pain in my lower back and neck/shoulders and have failed the tests before and failed to meet the standards for height and weight.  I have continued to struggle with this vicious cycle of physical and emotional pain that I have acquired due to the accident and other things in the military.  I also have to be treated for acne and migraines on a regular basis.”

RATING COMPARISON:

Army PEB – dated 20050705	VA (11 mos. Post-Separation) – All Effective 20051013	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Lumbosacral Spine Injury 	5237	10%	20050603	
Chronic Neck Pain	5299-5237	10%	Cervical Strain	5237	20%	20050603	
Left Foot Pain	Not Unfitting	Status Post Left Bunionectomy	5280	10%	20050603	
Migraine Headaches	Not Unfitting	Migraine Headaches	8199-8100	*10%	20050603	
Acne	Not Unfitting	Acne	7828	*10%	20050603	
Mild Intermittent Asthma	Not Unfitting	Mild Intermittent Asthma	6602	*0%	20050603	
Right Elbow Pain	Not Unfitting	Right Elbow Pain	5209	NSC	20050603	
Right Knee Pain	Not Unfitting	Right Knee Pain	5260	NSC	20050603	
Dyspepsia	Not Unfitting	Dyspepsia	7399-7346	NSC	20050603	
Abnormal PAP Smear 	Not Unfitting	Abnormal PAP Smear 	7612	NSC	20050603	
↓No Additional MEB/PEB Entries↓	0% x 2 / Not Service Connected (NSC) x 4	20050603	
Combined:  20%	Combined:  50% (*initially 40%)	
*Three VA Rated Conditions were initially “NSC.”  Service Connection was granted later, and the Combined VA Rating was increased to 50%

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI regarding the significant impairment with which her conditions continue to burden her.  The Board is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate service members for 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).  The Board’s authority resides in evaluating the fairness of DES fitness decisions and rating determinations at the time of separation.  The Board also acknowledges the CI’s contention that service ratings should be granted for other conditions.  While the DES considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a service member’s career, and then only to the degree of severity present at the time of separation.  The DVA, however, is empowered to compensate 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. 

Low Back Pain (LBP).  The CI injured her back while rappelling in January 1995.  Her symptoms progressed over time.  Magnetic resonance imaging (MRI) revealed some levoscoliosis, with transitional appearance of the lumbosacral junction.  Due to her persistent LBP, an MEB was initiated.  At the June 2005 MEB exam, 19 weeks prior to separation, the CI reported LBP which was worse after prolonged sitting.  On examination, she had some lumbar tenderness.  Motor exam, sensory exam, straight leg raise (SLR), and heel/toe walk were all intact.  X-rays of the lower back showed sacralization of L5, but were otherwise normal.  The CI failed to show for her scheduled VA exam, so there were no VA range-of-motion (ROM) measurements proximal to separation.  Her MEB thoracolumbar ROM measurements are summarized  below.

Thoracolumbar	Separation Date: 20051012	
Goniometric ROM	MEB – 19 wks. Pre-Sep	
Flexion (90⁰ is normal)	90⁰	
Combined (240⁰ is normal)	225⁰	
§4.71a Rating 	10%	
Comments	No mention of pain with ROM	
The Army PEB and the VA both rated her back pain condition at 10%.  IAW the Veterans’ Administration Schedule for Rating Disabilities (VASRD) §4.71a, her LBP condition does indeed warrant a rating of 10%, due to combined thoracolumbar ROM greater than 120 degrees but not greater than 235 degrees.  Although there was some thoracic scoliosis, the evidence shows that this was not due to severe muscle spasm or guarding.  There was also insufficient evidence of a separately unfitting peripheral neuropathy (radiculopathy) present at the time of separation.  After due deliberation and careful review of all available evidentiary information, the Board unanimously recommends a disability rating of 10% for the low back pain condition.  It is appropriately coded 5299-5237 and IAW VASRD §4.71a, meets criteria for the 10% rating.  

Neck Pain.  In January 2003, the CI began having neck pain that radiated to her upper shoulders.  MRI of the cervical spine in February 2004 showed some straightening of the cervical curvature, but no significant abnormalities.  Cervical x-rays in May 2005 were normal.  The CI was treated with physical therapy (PT) and chiropractic care.  She used Motrin on an “as needed” basis for her neck pain symptoms.  At her June 2005 MEB exam, 19 weeks prior to separation, the CI had cervical tenderness, and a negative Spurling test.  There were no neurological abnormalities.  Her MEB cervical ROM measurements are summarized in the chart below. 

Cervical spine	Separation Date: 20051012	
Goniometric ROM	MEB – 19 wks. Pre-Sep	
Flexion (45⁰ is normal)	40⁰	
Combined (340⁰ is normal)	275⁰	
§4.71a Rating 	10%	
Comments	No mention of pain with ROM	

The Board carefully considered all the available evidence.  The PEB rated her neck pain at 10%.  IAW VASRD §4.71a, her neck condition does indeed warrant a rating of 10%, due to combined cervical ROM greater than 170⁰ but not greater than 335⁰.  Although there was some straightening of curvature seen on MRI, the evidence shows that this was not due to severe spasm or guarding.  There was also insufficient evidence of a separately unfitting cervical radiculopathy at the time of separation.  After due deliberation, and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 10% for the neck pain condition.  It is appropriately coded 5299-5237 and meets criteria for the 10% rating.    

Other PEB Conditions.  Foot pain (post-bunionectomy), migraines, acne, asthma, elbow pain, knee pain, dyspepsia and abnormal pap smear were all adjudicated by the PEB as not unfitting.  None of these conditions were profiled, or implicated in the commander’s statement.  All were reviewed by the action officer and considered by the Board.  There was no indication from the record that any of these conditions significantly interfered with satisfactory performance of military duties.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting reversal of the PEB fitness adjudication for any of the stated conditions.
  
Remaining Conditions.  Shoulder pain, obesity, emotional turmoil, allergies, left breast cyst, bronchitis, and several other conditions were also noted in the file.  None of these conditions were clinically significant during the MEB/PEB period, none carried profiles and none were implicated in the commander’s statement.  These conditions were reviewed by the action officer and considered by the Board.  There was insufficient evidence for concluding that any of these conditions interfered with duty performance to a degree that could be argued as unfitting. The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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 low back pain condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the neck pain condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the foot pain, migraines, acne, asthma, elbow pain, knee pain, dyspepsia, abnormal pap smear, shoulder pain, obesity, emotional turmoil, allergies, breast cyst, bronchitis, or any other conditions eligible for consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.  

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	
Chronic Low Back Pain	5299-5237	10%	
Chronic Neck Pain	5299-5237	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110328, 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 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation  

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