RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-00937
BRANCH OF SERVICE:  Army	BOARD DATE:  20140513
Separation Date:  20020403

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (75B/Personnel Administration) medically separated for chronic pain, low back, mechanical, right shoulder and neck.  The conditions 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 profile and referred for a Medical Evaluation Board (MEB).  The back, shoulder and neck conditions, characterized as “chronic mechanical low back pain(LBP)/facet syndrome; chronic right rotator cuff tendonopathy, and neck pain secondary to a C6-C7 herniated nucleus pulposus” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB forwarded no other conditions to the PEB.  The Informal PEB adjudicated chronic pain, low back, mechanical, right shoulder, due to rotator cuff tendonopathy and neck, due to C6-7 herniated nucleus pulposus (HNP) as unfitting and rated 10% with application of US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION: “I am having more problems out of my feet” [sic]

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 chronic pain, low back, mechanical, right shoulder and neck conditions are addressed below.  The contended feet condition was not identified by the MEB or PEB; and, thus is not within the DoDI 6040.44 defined purview of the Board.  This, and 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 contended feet conditions continue to burden her.  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 VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

RATING COMPARISON:

Service IPEB – Dated 20020124	VA* – 3 weeks Pre-Separation	
Condition	Code	Rating	Condition	Code	Rating	C&P Exam	
Chronic Pain: Mechanical Low Back; Right Shoulder; and Neck	5099-5003	10%	Right Shoulder Tendonitis	5299-5203	10%	20020311	
			Herniated Nucleus Pulposus 	5299-5293	10%	20020311	
			Lower Back Strain With Disc Bulge	5295-5293	10%	20020311	
Other x 0 (Not in Scope)	Other x8	
Rating:  10%	Combined:  60%	
*Derived from VA Rating Decision (VARD) dated 20020506 (most proximate to date of separation 20020403)

ANALYSIS SUMMARY:  The PEB combined the chronic pain, low back, mechanical, right shoulder, due to rotator cuff tendonopathy and neck, due to C6-7 HNP conditions under a single disability rating, coded analogously to 5003 arthritis, degenerative (hypertrophic or osteoarthritis) code.  This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation.  The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW 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 “reasonably justified” as separately unfitting.

Chronic Mechanical Low Back Pain, Right Shoulder Pain and Neck Pain Conditions.  The Board first considered if the chronic LBP, right shoulder pain, and neck pain, conditions, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above.  Prior to entry into the Disability Evaluation System, the CI had multiple temporary profiles that document her low back and neck pain conditions caused duty limitations, while no profiles implicated the right shoulder in any duty limitation.  There are numerous service treatment record (STR) notes that document evaluation and treatment of her neck and back pain both separately and individually.  There is only one STR note that mentions a right shoulder condition and no STR notes document treatment for any right shoulder condition.  The commander’s statement documented that the restrictions listed in her profile affected her ability to deploy to field training exercises and perform in her MOS and did not mention any specific condition.  The well-established principle for fitness determinations is that they are performance-based.  The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of the right shoulder condition with the performance of duties at the time of separation.  After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the right shoulder condition was integral to the CI’s inability to perform her MOS and accordingly cannot recommend a separate rating for it.  Additionally, Board consensus was that the chronic LBP and chronic neck pain conditions, as isolated conditions, would have rendered the CI incapable of continued service within her MOS and therefore each is separately unfitting and merits a separate rating.

Chronic Low Back Pain Condition.  The CI developed atraumatic LBP which presented as a dull ache with periodic exacerbations while in Germany in 1998.  The pain was sharp three to four times a week, and lasted two to three hours.  She was given a non-steroidal anti-inflammatory drug (NSAID) and a muscle relaxant and advised no pushups, sit-ups or lifting.  She was again seen in family practice in 2000 for recurrent LBP which was worse with prolonged standing.  The pain continued despite physical therapy (PT) and steroid injections.  The physical exam findings were point tenderness in T2-T5.  The CI continued to be followed by family practice for the chronic LBP throughout 2000 and 2001 without any improvement.  PT was ordered and she underwent four visits without any decrease in LBP.  A thoracic spine magnetic resonance imaging (MRI) was normal.  The neurosurgeon noted that a normal motor and sensory exam.  The CI was given a permanent U3 profile for upper back and neck pain with additional restrictions listed.  A lumbar spine MRI performed showed a mild disc bulge at L5-S1.  The MEB narrative summary (NARSUM) exam approximately 4 months prior to separation documented that the CI had worsening of the throbbing LBP which was located in the center of the back and there were one to two days per week where did not have LBP.  She also reported constant slight pain that radiated down the left leg, with numbness of the entire leg and weakness.  The MEB NARSUM physical exam findings are summarized below.

The VA Compensation and Pension (C&P) exam approximately 3 weeks prior to separation indicated that the CI had constant LBP that was 8/10 with 10 being the worst to 10/10 three to four times per week with prolonged walking, standing and sometimes with normal daily activities.  The pain would last 2 to 24 hours with poor results from a prescription NSAID.  The VA C&P physical exam findings are also summarized below.

There were two range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board considered; as summarized in the chart below:

Thoracolumbar ROM (Degrees)	MEB  4 Mo. Pre-Sep	VA C&P  3.5 weeks Pre-Sep	
Flexion (90 Normal)	75	80	
Combined (240)	225	230	
Comment	Pos. painful motion; decreased sensation left lower extremity; Normal strength; Pos. facet compression test on right	Pos. painful motion & Tenderness to palpation; Pos. straight leg raise on left; Normal gait	
§4.71a Rating	10%	10%	
5295	10%	10%	
5292	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The 2002 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The earlier criteria were subject to the rater’s opinion regarding degree of severity, as opposed to the more objective current standards with quantifiable rating thresholds grounded in ROM measurements.  The 2002 criteria relevant for consideration in the Board’s recommendation are cited in context below. 

5292 Spine, limitation of motion of, lumbar
Severe ......................................................	40
Moderate ................................................	20
Slight ........................................................	10

5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion .....................................	40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing' position ....................................	20
With characteristic pain on motion ........	10

The PEB coded the chronic pain, low back, mechanical condition as 5099 analogous to 5003 and rated at 10% with application of the USAPDA pain policy.  The VA coded the lower back strain with disc bulge as 5295 (lumbosacral strain) with 5293 (intervertebral disc syndrome) and rated at 10%, mild-with characteristic pain on motion.  Both exams accomplished proximate to separation documented a “slight” limitation of lumbar spine motion.  The Board considered the coding of 5295 and a 10% rating-with characteristic pain on motion versus a 20% rating-with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; however, no examination documented muscle spasm or loss of lateral spine motion.  The Board agreed that the evidence above more closely aligned with application of code 5292 (limitation of lumbar spine motion), because there was no identified injury to account for a muscle strain.  There is no reasonable coding or rating scheme that would result in a rating greater rating than 10%.  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 chronic mechanical LBP condition coded 5295.

Neck Pain Condition.  The CI developed neck pain and underwent treatment in Germany which consisted of trigger point steroidal injections and PT in 1998; however, her pain continued.  She was seen by PT on 30 August 2000 for cervical radiculitis.  The cervical spine X-ray showed anterior osteophytes at C5-6 and a loss of lordosis.  The cervical spine MRI demonstrated disc herniation at C6-7 in the right paracentral area with mild displacement of the thecal sac and a very small disc herniation at C5-6 in the left paracentral area.  The CI was seen by PT for cervical radiculitis and did not respond to cervical traction.  An electromyogram (EMG) performed on 1 May 2001 was normal.  The neurosurgeon noted bilateral upper extremity pain in the C7 distribution and axial neck pain.  The MEB NARSUM exam documented a dull deep ache pain in the neck.  The MEB NARSUM physical exam findings are summarized in the chart below.

The VA C&P exam documented that the pain was constant 10/10, aggravated by prolonged sitting or turning her head quickly.  The VA C&P physical exam findings are also summarized in the chart below.

There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board considered; as summarized in the chart below.

Cervical ROM (Degrees)	MEB 4 Mo. Pre-Sep	VA C&P 3.5 weeks Pre-Sep	
Flex (45 Normal)	40	35	
Combined (340)	270	300	
Comment	Decreased sensation right arm; Normal strength except right shoulder external rotation; neg. cervical compression test	Pos. Tenderness to palpation posterior neck; Pos. painful motion	
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the chronic pain neck due to C6-7 HNP as 5099 analogous to 5003 and rated at 10% with application of the USAPDA pain policy.  The VA coded the HNP condition as 5299 analogous to 5293 rated at 10% - Mild.  The two codes most applicable codes from the VASRD in effect at the time of separation are copied below for the reader’s convenience:

5290 Spine, limitation of motion of, cervical:
Severe ........................................................................................	30
Moderate ..................................................................................	20
Slight .........................................................................................	10

5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief ...	60
Severe; recurring attacks, with intermittent relief…………………	40
Moderate; recurring attacks .....................................................	20
Mild ...........................................................................................	10
Postoperative, cured .................................................................	  0

While the CI did complain of radicular symptoms related to her neck pain, her EMG and nerve condition study were normal, there was no documented muscle spasm or absent reflexes.  Under code 5293 her neck pain condition would be appropriately rated 10% as applied by the VA.  Both exams accomplished proximate to separation documented pain limited motion with a “slight” limitation in motion.  There is no reasonable coding rating scheme that would result in a rating greater than 10%.  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 chronic neck pain condition coded 5290.

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 the USAPDA pain policy for rating the chronic pain, low back, mechanical, right shoulder, due to rotator cuff tendonopathy and neck, due to C6-7 HNP conditions was operant in this case and the condition was adjudicated independently of that policy by the Board.  As discussed above, the PEB bundled the three conditions and the Board adjudicated each condition separately.  In the matter of the chronic mechanical LBP condition, the Board, on a split 2:1 vote, recommends that it was separately unfitting and recommends a disability rating of 10%, coded 5292 IAW VASRD §4.71a.  The single voter for dissent did not elect to submit a minority opinion.  In the matter of the neck pain condition, the Board unanimously agrees that it was separately unfitting and unanimously recommends a disability rating of 10%, coded 5290 IAW VASRD §4.71a.  In the matter of the right shoulder pain condition, the Board, by a vote of 2:1, recommends that it was not separately unfitting and therefore, cannot recommend it for additional disability rating.  The minority voter did not elect to submit a minority opinion.  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 her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Mechanical Low Back Pain	5292	10%	
Neck Pain, due to C6-7 Herniated Nucleus Pulposus	5290	10%	
Right Shoulder Pain, Due To Rotator Cuff Tendonopathy	Not Unfitting	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130606, 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, AR20140020814 (PD2010300937)

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