RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1300078
BRANCH OF SERVICE:  Army	BOARD DATE:  20130618
SEPARATION DATE:  20030206

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (91W10/Medic) medically separated for neck and back conditions.  She first injured her neck and back in a motor vehicle accident (MVA) in 1993 exacerbated by two subsequent MVAs in 2000 and 2001.  Symptoms but could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The degenerative disc disease (DDD) of the cervical spine causing constant neck pain and mechanical low back pain (LBP) conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated neck and LBP conditions as unfitting rated 20%, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “I have experienced continuous neck and back pain, flare-ups and spasms.  Since May 2000 I have been followed by the VA Hosp, outside Drs. and Duke Pain Management within the last year.  I currently receive cervical epidurals every month for pain and spasms thru Duke Pain Management.  The constant pain and spasms have definitely diminished my life style, my social life, my ability to perform my employment duties, and basic living.  I’m out of work due to my disabilities about 25% of the year.”

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 ratings for the unfitting chronic neck and LBP conditions are addressed below.  Any other condition or contention not requested in this application, 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 conditions continue 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 laws.

RATING COMPARISON:

Service IPEB – Dated 20021024	VA* - (2.6 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck & Lower Back Pain	5099-5003	20%	Chronic Cervical Strain w/DDD...	5291-5290	10%	20021119	
			Chronic Lumbar Strain	5295	10%**	20021119	
No Additional MEB/PEB Entries	Other x 12	20021119	
Combined:  20%	Combined:  60%	
* Derived from VA Rating Decision (VARD) dated 20030221 (most proximate to date of separation)
** Increased to 20% by VARD 20070530 based on C&P exam 20061017 effective date 20060830

ANALYSIS SUMMARY:  The PEB combined neck and lower back pain as the single unfitting and solely rated condition, coded analogously to 5099-5003.  Although this approach complies with AR 635.40; the Board must apply separate codes and ratings in its recommendations, if compensable ratings for each condition are achieved IAW Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself.  Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting; and, that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting.  Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Neck Pain Condition.  The narrative summary (NARSUM) noted the CI had neck and back pain that began following an MVA in 1993.  Following 3 months of physical therapy (PT) the symptoms resolved.  The CI was involved in another MVA on 3 May 2000 which caused neck, upper back pain and LBP that was persistent and was treated multiple times in the emergency room (ER).  The CI was evaluated for reported symptoms of paresthesias of the right upper extremity, but cervical magnetic resonance imaging (MRI) on 9 January 2001 did not show spinal canal stenosis or nerve encroachment and nerve conduction studies on 13 April 2001 did not show any evidence of radicuolpathy.  The CI was involved in another MVA on 26 June 2001 and was seen in the ER for “right shoulder, neck and low back pain;” the exam noted only right trapezius muscle tenderness, no spinal tenderness, and full right shoulder ROM.  Notes in the service treatment record (STR) in the 12 months prior to separation indicated that the CI was treated two times acutely for upper back muscle spasm and prescribed quarters.  On 4 March 2002, thoracic spine X-rays were normal; repeat C-spine X-rays were unchanged from earlier X-rays which showed evidence of DDD, without other abnormality.  At the MEB NARSUM examination performed 6 August 2002, approximately 5 months prior to separation, the CI reported her neck and back hurt all the time.  She reported constant pain on the right side of her neck and shoulder rated 5 out of 10 with flare-ups approximately once per week, lasting 2 to 3 days, with muscle spasms and pain level of 8 out of 10.  The MEB exam noted normal alignment of the entire spine.  There was tenderness to palpation (TTP) of the lower C-spine and right trapezius muscle.  Upper extremity muscle strength, sensation and reflexes were normal bilaterally; no muscle spasm was noted.  C-spine range-of-motion (ROM) was normal except for mildly decreased rotation bilaterally of 60 degrees (normal 80).  At the earlier MEB orthopedic consult performed by the CI’s treating physician on 12 March 2002, approximately 11 months prior to separation, the CI reported chronic cervical and lumbar pain.  According to the examiner the “MRI of the entire spine, C-spine, T-spine and L-spine repeated in June 2001” was within normal limits.  The CI was noted to have improved in PT, but was still unable to perform all the duties of her MOS.  The physical exam showed TTP in the right cervical paraspinal area and normal motor, sensory, and reflex examination bilaterally.  No muscle spasm was noted.  The impression was mechanical cervical pain without radiculopathy.

At the VA Compensation and Pension (C&P) examination, performed on 19 November 2002, approximately 3 months prior to separation, the CI reported constant pain in the neck described as mild, worsened with activity.  The VA exam showed TTP of the right lower C-spine, cervical paraspinal muscles and trapezius.  C-spine ROM was “mildly reduced” with bilateral flexion of 30 degrees (normal 45) and bilateral rotation of 50 (normal 80) but the examiner noted “accompanied by severe pain.”  There was no weakness or radiculopathy present.  Upper extremity strength, sensation and reflexes were normal bilaterally.  No muscle spasm was noted.  C-spine X-rays performed by the VA showed slight narrowing of the C5-6 disc space and loss of the normal cervical curvature.

Lower Back Pain Condition.  As discussed above, the NARSUM noted the CI’s history of multiple MVAs.  According to the NARSUM the CI was diagnosed with lumbar sprain following the 3 May 2000 MVA.  The CI’s neck and back pain were aggravated by an MVA on 26 June 2001.  At an undated orthopedic evaluation the examiner found no lumbar spine tenderness and normal lower extremity strength bilaterally, but ordered a lumbar MRI to evaluate possible increased reflexes.  The L-spine MRI report is not in the records, but the results are reported as within normal at multiple visits.  At orthopedic follow-up in September 2001, the lumbar exam was normal with a non-tender back and normal strength noted and the impression was mechanical LBP.  The CI continued to have recurrent exacerbations of the LBP and was seen for LBP with spasm four times in the year prior to the date of separation and sent to quarters three times.  One of two chiropractic visits in November 2002 also noted mild lumbar paravertebral spasm.  At the MEB NARSUM examination on 6 August 2002, approximately 5 months prior to separation, the CI reported her back hurt all the time, greater on the right than the left, and no radicular symptoms.  She rated the pain as 6 out of 10, with exacerbations to 8 out of 10 that responded to medication within an hour.  The CI could not identify any aggravating factors.  On the MEB exam there was TTP of the right lumbar area, straight leg raise was negative, and strength, sensation, and reflexes were normal bilaterally.  No muscle spasm was noted.  Lumbar ROM was normal except for minimally decreased extension of 20 degrees (normal 30).  As noted above lumbar MRI was reportedly normal in June 2001 and on 4 March 2002, the L-spine X-rays performed were normal.  At the MEB orthopedic consult performed by the CI’s treating specialist on 12 March 2002, approximately 11 months prior to separation, the CI reported chronic lumbar pain.  The exam showed TTP of the right lumbar paraspinal area, with normal lower extremity strength, sensation, and reflexes bilaterally, without noted muscle spasm.  At the C&P exam, approximately 3 months prior to separation, the CI reported constant pain in the lower back that was worsened by activity and described as moderate.  The CI also reported right-sided muscle spasms of the lower back approximately once per week which lasted for a few days, but denied any radiation or neurological symptoms.

The VA exam noted painful motion of the L-spine and TTP of the lower L-spine and paravertebral muscles, but no muscle spasm was noted.  The straight leg test was reported as positive on the right at 25 degrees and pain was increased with right foot dorsiflexion, but the examiner noted “there is no radiculopathy at the time of the exam.”  Lumbar ROM was reduced with flexion of 60 degrees (normal 90), and bilateral rotation of 20 (normal 45).  The examiner noted that DeLuca criteria of pain, fatigue and lack of endurance affected the ROM of the L-spine, pain providing the major functional impact, but no repetitive ROM values were documented.

The Board directs attention to its rating recommendations based on the above evidence.  The PEB bundled the neck and LBP and rated as one unfitting condition as 5099-5003 at 20% and stated “Rated for pain moderate/constant.”  The VA rated the neck pain condition as 5291-5290 (analogous to limitation of motion, thoracic and cervical) at 10% and the LBP condition separately as 5295 (lumbosacral strain) at 10%.  The Board must provide disability ratings in accordance with the VASRD rating guidelines in effect on the date of separation and the Board did so.  The applicable coding options for this case are excerpted below.  The Board first considered if the neck and LBP conditions, having been de-coupled from the combined PEB adjudication, remained each in itself unfitting.  STRs indicated each condition required medical treatment, including at times injections and quarters.  The permanent profile, as well as temporary profiles beginning in September 2001, listed the neck pain and LBP conditions.  The commander’s statement in March 2002 implicated both the neck and back pain and noted the current profile (9 November 2001 – neck and LBP) precluded the CI’s worldwide deploy ability as a combat medic.  The Board agreed the evidence in the record supported both the neck pain and low back pain conditions were separately unfitting conditions and separate ratings are recommended.

The Board first deliberated the rating of the chronic neck pain condition based on the above evidence.  Notes in the STR show that the CI improved in the second half of 2001, with her neck and upper back pain becoming intermittent.  The notes in the STR indicate treatment for neck or upper back spasms twice in the year prior to separation.  Both the MEB and the C&P exams indicated mildly reduced cervical ROM with TTP, but without muscle spasm, motor, sensation or reflex abnormalities.  At the C&P exam, the CI reported constant neck pain, but described it as mild.  The Board deliberated the cervical spine rating codes available in February 2003 which included 5293 (intervertebral disc syndrome) and 5290 (limitation of cervical motion).  The CI was sent to quarters following acute treatment for neck pain twice in the 12 months prior to separation.  The Board opined that even providing the benefit of the doubt to the CI and considering quarters following acute medical treatment as equivalent to “bed rest,” the two documented instances of quarters for 24 hours each in 12 months would not meet the 10% disability rating of incapacitating episodes of “at least one week…during the past 12 months” as specified in 5293.  Next the Board considered rating as 5290 for cervical ROM.  The CI’s cervical ROM was full or nearly full throughout the STR including at acute visits for pain and/or muscle spasm and at both the MEB and C&P exams the cervical ROM was mildly reduced without noted muscle spasm.  The Board agreed that this met the 10% disability rating IAW VASRD §4.71a.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 10% for the neck pain condition.

The Board next directed attention to its rating recommendation for the LBP condition based on the above evidence.  The Board considered that records indicated the CI had increased LBP associated with muscle spasms and without radiculopathy in the year prior to separation.  The Board considered rating analogous to 5293 (intervertebral disc syndrome) based on incapacitating episodes, specified as “requires bed rest prescribed by a physician and treatment by a physician.”  The CI was prescribed quarters three times for 24 hours each for LBP in the year prior to separation.  The Board concluded that even providing the benefit of the doubt to the CI and considering quarters to be equivalent to bed rest, this did not meet the 10% disability rating of 5293 specified as “with incapacitating episodes of at least one week…in the last 12 months.”  The Board agreed that the CI’s mechanical LBP condition met the 10% disability rating coding as either 5292 (limitation of lumbar motion) or as 5295 (lumbosacral strain) and reviewed further to see if a higher evaluation was achievable.  The Board noted that at the C&P exam ROM was lumbar flexion of 60 degrees, bilateral limited rotation and normal bilateral lateral flexion, but PT measured ROM at the MEB exam was normal, except for mildly decreased extension of 20 (normal 30);.  Lumbar muscle spasm was not noted at either the MEB or C&P examination.  Additional rating for DeLuca Criteria was considered by the Board, but was not supported by the record.  The Board concluded that the higher disability evaluation of 20% coded as either 5295 or 5292 was not achieved.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board recommends a disability rating of 10% for the LBP condition.  The Board having unbundled the neck pain and LBP conditions found that the separate disability ratings recommended provided no benefit to the member.  Therefore, 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 neck and LBP 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.  As discussed above, PEB reliance on USAPDA pain policy for rating the neck and LBP was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the neck and LBP 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, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Neck Pain and Low Back Pain	5099-5003	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120621, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB									

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

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130014791 (PD201300078)

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