RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD1300161
BRANCH OF SERVICE:  Army	BOARD DATE:  20140220
Separation Date:  20070618

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Chief Warrant Officer 2 (CW2, 140A/Command & Control Systems Technician) medically separated for a neck and back condition.  The CI’s neck and back pain began in 1998.  The neck and back conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The neck and back conditions, characterized as “cervical spondylosis” and “lumbar spondylosis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic neck pain due to Degenerative Disc Disease (DDD)” and “chronic back pain due to DDD” as unfitting, rated 10% and 0% respectively, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes:  “Degenerative Disc Disease, Cervical Spine/Degenerative Disc Disease, Lumbar Spine/Residual, TBI/Obstructive Sleep Apnea/PTSD; I had been suffering from severe symptoms of PTSD beginning in my deployment in OIF l.  It took several difficult years for me to accept it and seek professional help.  I have been on medication since approximately 2008 to help me deal with the symptoms and continue some type of normal lifestyle to include employment. PTSD was not addressed in my pre-screening because I always answered NO to those questions.  It was not until I hit rock bottom about a year later, that I was willing to seek professional help.  I had moved out and divorced my spouse, struggled with alcoholism and a severe inability to control my anger and emotions.  At times I contemplated suicide although I never actually acted on it.”

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 neck and back conditions are addressed below.  The contended traumatic brain injury, obstructive sleep apnea, and posttraumatic stress disorder (PTSD) conditions are 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 his service-connected condition continues to burden him; 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 (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:  

Service IPEB – Dated 20070518	VA - (4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5299-5242	10%	DDD, Cervical Spine	5010-5237*	10%	20071029	
Chronic Back Pain	5299-5242	0%	DDD, Lumbar Spine	5010-5237*	10%	20071029	
No Additional MEB/PEB Entries	Other x 0	20071029	
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20071126 (most proximate to date of separation [DOS]).  *VARD of 20100908 changed codes to 5243. 

ANALYSIS SUMMARY:

Chronic Neck Pain Condition.  The CI developed a gradual onset of atraumatic neck pain in 1998.  The CI was seen while in Theater for worsening of his low back pain (LBP); however the examiner also noted muscle tightness in his neck.  A cervical spine magnetic resonance imaging (MRI) exam demonstrated DDD and bony spurs at C5-6, 6-7 and C7-T1 with right sided disc protrusion at C5-6 which appears to slightly displace the nerve root.  The CI was given a permanent U3L3 profile for cervical and lumbar DDD with specific restrictions of no Kevlar, no LBE, no Interceptor Body Armor (IBA), no side straddle hops and no flutter kicks.  The commander’s statement noted that the CI’s profile prevented him from performing his MOS duties.  There was a bubble inclinometer measurement of flexion and extension performed by physical therapy (PT) on 16 March 2007, 3 months prior to separation.  They were recorded as flexion 15 degrees (unknown normal range) and extension 21 degrees (unknown normal range) with pain.  Additionally, there was no specification if dual or single method inclinometer measurements were used, and the placement of the inclinometer, or normal values.  The MEB narrative summary (NARSUM) exam on 23 April 2007, approximately 2 months prior to separation, documented cervical spondylosis and the examiner rated the pain according to the American Medical Association (AMA) pain scale at mild to moderate and frequent to constant.  Examination showed spasm of neck, and tenderness, normal 5/5 strength and sensation of the upper extremities, normal reflexes.  The VA Compensation and Pension (C&P) exam on 29 October 2007, approximately 4 months after separation, indicated that the CI continued to have daily dull achy back pain which became sharp with movement and the pain intensity was 5 out of 10 with 10 being the worst.  The applicant had not suffered periods of incapacitation as a result of his neck or back pain, did not wear a neck or back brace.  He was unemployed, and able to perform all the usual activities of daily living without assistance.  Physical examination revealed normal gait and posture, normal position of head, normal curvature of spine.  Range-of-motion (ROM) with goniometer in degrees was flexion 40 degrees (normal 45) with mild discomfort, extension 45 degrees (normal 45), without discomfort; left and right lateral 40 degrees (normal 45), with mild discomfort, left and right lateral rotation was 70 degrees (normal 80) with mild discomfort.  Painful motion was noted without acute spasm, weakness or tenderness.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the chronic neck pain condition as 5299 (analogous to) - 5242 (degenerative arthritis of the spine) rated at 10%.  The VA coded the DDD, cervical spine condition as 5010 (arthritis, due to trauma), substantiated by X-ray findings with to 5237 (lumbosacral or cervical strain) rated at 10%.  The general rating formula for diseases and injuries of the spine considers the CI’s pain symptoms with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.  The PT evaluation performed approximately a month prior to the MEB NARSUM and approximately 3 months prior to separation demonstrated all ROM limited by pain and performed a ROM examination using a bubble inclinometer.  However, the examiner did not specify the placement of the device or whether a dual inclinometer method was used.  Flexion was reported to be 15 degrees which was not consistent with the subsequent VA C&P examination (flexion 40 degrees, combined 305 degrees).  The Board considered the physical therapy ROM performed prior to separation but noted it was performed by a methodology that did not conform to the VASRD rating formula, which is based on a goniometric measurement of cervical motion from the vertical plane.  The results were not consistent with the conforming VA examination and were not consistent with the known pathology.  Therefore, the Board concluded the VA C&P examination performed 4 months after separation was the most probative and reflective of the disability at the time of separation.  The Board then considered the general rating formula for diseased and injuries of the spine for rating the condition under the codes used by the PEB and the VA.  There was evidence of forward flexion greater than 30 degrees but not greater than 40 degrees (measured at 40 degrees with goniometer), for a rating of 10%.  Without evidence of incapacitating episodes, abnormal gait, weakness of the extremities, severe muscle spasm, there was no route to a higher rating under alternate codes.

Chronic Back Pain Condition:  The CI developed atraumatic LBP in 1998.  He was seen for an intermittent popping sensation to the midline spine at L3-4.  A lumbar spine X-ray performed in January 2003 was normal.  The CI continued with back pain and intermittent tingling which radiated intermittently to the perineum; however, there was no radicular pain, nor incontinence.  An MRI showed DDD/dessication at L4-5 and posterior central disc protrusion, and mild to moderate bilateral facet joint hypertrophy at L4-5 causing slight symmetrical narrowing of both neural foramen.  A repeat lumbar spine MRI in August 2004 reported unchanged findings.  In September 2005, the CI was evaluated by PT for the LBP and was given a transcutaneous electrical nerve stimulation (TENS) unit for electrical stimulation therapy.  The medical examiner evaluated the CI for a low back flare and prescribed a non-steroidal anti-inflammatory drug (NSAID) and a muscle relaxant.  In May 2006, the CI was seen in the Medical Clinic for a week of constant dull lumbar pain in the morning and at night.  A physical exam finding was an antalgic gait with tripoding.  He was advised to continue the NSAID, muscle relaxant, analgesic and physical therapy (PT).  The CI was seen while in Theater for worsening of his LBP while wearing gear.  Physical exam findings were tenderness to palpation, at spinous process at L4 abnormal spine motion and muscle spasms.  The examiner diagnosed muscle spasm and lumbar DDD L4-5 and changed the muscle relaxant and administered an NSAID injection.  A lumbar spine MRI showed significant right lateral disc protrusion at L5-S1 with right sided foraminal narrowing on possible right sided L5 foraminal nerve root encroachment, small focal right paracentral disc protrusion at L4-5 but no clear effect on the nerve root.  The CI was given a permanent U3L3 Profile for cervical and lumbar DDD with specific restrictions of no Kevlar, no LBE, no IBA, no side straddle hops and no flutter kicks.  The commander’s statement noted that the CI’s profile prevented him from performing his MOS duties.  The PT note on 16 March 2007, 3 months prior to separation recorded bubble inclinometer ROM without specification of the method used, or normal values, at flexion 21 degrees, and extension 9 degrees with pain.  The MEB NARSUM exam on 23 April 2007, approximately 2 months prior to separation, documented that the CI’s LBP symptoms had slowly worsened and that he had undergone rest, activity modification, anti-inflammatory drugs, and PT and pain medications without any improvement.  The examiner rated the pain according to the AMA pain scale at mild to moderate and frequent to constant without radicular symptoms.  Physical examination revealed muscle spasm and back tenderness, negative straight leg rise, normal 5/5 lower extremity strength, normal sensation, normal deep tendon reflexes.  The VA C&P exam 4 months after separation indicated that the CI continued to have daily dull achy back pain which became sharp with movement and the pain intensity was 7 out of 10 with 10 being the worst.  Physical examination revealed normal posture and gait, normal curvature of the spine, normal symmetry and appearance, painful motion without acute spasm, weakness, or tenderness.  ROM of the thoracolumbar spine showed flexion of 80 degrees (normal 90), with moderate discomfort; extension of 30 degrees (normal 30), with moderate discomfort, left and right lateral flexion of 25 degrees (normal 30) with moderated discomfort, and left and right lateral rotation of 30 degrees (normal 30), without discomfort.  There was evidence of painful motion, without spasm, weakness, or tenderness.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the chronic back pain condition as 5299 analogous to 5242 Degenerative arthritis of the spine and rated at 0%.  The VA coded the DDD, lumbar spine condition as 5010 arthritis, due to trauma, substantiated by X-ray findings with to 5237 lumbosacral or cervical strain and rated at 10%.  The general rating formula for diseases and injuries of the spine considers the CI’s pain symptoms “With or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  The MEB used ROM’s from the PT evaluation performed approximately a month prior to the MEB NARSUM and approximately 3 months prior to separation.  As discussed above, the PT evaluation was performed with a bubble inclinometer and the VA C&P examination with a goniometer, which complies with VASRD standards for rating the thoracolumbar spine.  The results were not consistent with the conforming VA examination, and were not consistent with the known pathology.  Therefore, the Board concluded the VA C&P examination performed 4 months after separation was the most probative and reflective of the disability at the time of separation.  The Board then considered the general rating formula for diseased and injuries of the spine for rating the condition under the codes used by the PEB and the VA.  There was evidence of forward flexion greater than 60 degrees but not greater than 85 degrees (measured at 80 degrees with goniometer), for a rating of 10%.  Without evidence of incapacitating episodes, abnormal gait, weakness of the extremities, severe muscle spasm, there was no route to a higher rating under alternate codes.

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 chronic neck pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5242 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Neck Pain	5299-5242	10%	
Chronic Back Pain	5299-5242	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 2130409, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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, AR20140013237 (PD201300161)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA