RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01253
BRANCH OF SERVICE:  Army	BOARD DATE:  20140416
SEPARATION DATE:  20041104

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88N/Transportation Specialist) medically separated for a chronic low back pain (LBP) and chronic neck pain conditions.  The worsening symptoms did not improve adequately with conservative measures to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB).  The back and neck conditions, characterized as “chronic mechanic LBP and chronic neck pain”, 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 LBP and chronic neck pain” as unfitting, rated 10% and 10% respectively.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was medically discharged for a combat related injury and given a severance pay with no disability rating, or Purple Heart for that matter. I've had to apply for disability and was rated at 30% disabled some years after my discharge. I filed again a couple of years or so later and was rated at 80%. I've currently appealed a recent disability denial for secondary injuries and I'm awaiting the results of that.  I tried to reach out to my physician's about my PTSD, and they said that what I was experiencing was "normal" for someone that was subjected to what l had been to. They said that they noticed l had a tic and sent/fee'd me out to a Neurologist in Manhattan, Kansas. Nothing came about of this and the Army continued to remove me due to my mobility issues due to a back injury sustained in Iraq that was a direct result of a mortar attack.”

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 back and neck condition is addressed below; and, no additional conditions are 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.

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.

RATING COMPARISON:

Service IPEB – Dated 20041006	VA - (3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Chronic Low Back Strain	5237	10%	20050215	
Chronic Neck Pain	5237	10%	Chronic Neck Strain	5237	0%	20050215	
No Additional MEB/PEB Entries	Other x 6	20050215	
Combined:  20%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20050324 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic LBP Condition.  The first entry from the service medical record in evidence for the LBP condition was from 22 November 2003, for a complaint of LBP since 2001, bothering him most when lifting weights.  He was diagnosed with mechanical LBP and treated with nonsteroidal anti-inflammatory medication (NSAIDs).  On 28 November 2003, there was an internal medicine note documenting LBP since deployment, pain while sitting too long and that NSAIDs did not help.  Also documented in this note, was a remote weight lifting injury and a motor vehicle accident (MVA) just prior to deployment.  Physical examination revealed tender paraspinous muscles of the upper lumbar area, and normal range-of-motion (ROM).  The impression by the internal medicine physician was LBP with possible muscular spasms.  He continued on NSAIDs and the examiner added a muscle relaxant.  Lumbar spine and cervical spine X-rays on 27 February 2004 were unremarkable.  He was evaluated by the orthopedic clinic on 27 February 2004 and diagnosed with neck strain and mechanical LBP.  The orthopedist’s plan was for physical therapy, NSAIDs, and muscle relaxants.  On 27 May 2004, he was evaluated by primary care and the CI reported no improvement after 2 months of physical therapy.  The examiner discontinued the physical therapy and referred the CI for further testing and medications.  The CI was seen by orthopedics on 2 June 2004; the assessment was LBP and neck pain secondary to the MVA for a year.  A magnetic resonance imaging (MRI) study was ordered and the examiner wrote that the case would probably require a permanent level three profile (P3) and MEB.  The lumbar spine MRI was performed on 9 June 2004 and demonstrated no particular abnormality, vertebral body heights, alignment and disk spaces all seemed unremarkable; no focal herniation, no spinal stenosis was appreciated.  A follow-up by orthopedics after the MRI, on 17 March 2004, remarked the impression was chronic LBP and cervical spine pain, failed all conservative management and was not a surgical candidate; the plan was P3/MEB.  The MEB physical exam on 12 July 2004, 4 months prior to separation, noted decreased and painful thoracolumbar spine ROM flexion at approximately 45 degrees, and refused extension; measurements were estimated without use of a goniometer.

The narrative summary (NARSUM) on 9 September 2004, 2 months prior to separation notes the onset of spinal symptoms on 9 July 2003, when he was involved in a rear-end MVA.  He did not have any obvious or significant injuries at the time and did not seek medical care.  Two weeks later, he was medically evaluated and given a muscle relaxant medication, which improved his symptoms.  The NARSUM documented the CI deployed to Iraq for a 4-month period and was exposed to mortar fire, thrown to the ground and landed on his back, which significantly worsened his back pain.  He reported to sick call and was given NSAIDs and muscle relaxant, which helped somewhat.  The applicant stated he still had persistent back and neck pain, which interfered with activities and military duties.  Physical examination of the thoraco-lumbar spine was pain of the lower back centrally in the L4-5 region and paraspinal muscle region, no muscle spasm, no palpable bony step-off abnormality, no bony changes, normal muscle strength of the lower extremities, negative straight leg raise test, negative clonus, normal sensation, normal reflexes, normal vascular capillary refill and negative Waddell’s signs.  ROM cited from physical therapy measurement on 3 August 2004 3 months prior to separation, were flexion 52 degrees (normal 90), extension 14 degrees (normal 30).
At the VA Compensation and Pension (C&P) exam performed on 3 February 2005, 3 months after separation, the CI reported persistent LBP since an MVA in July 2003.  Pain was 3-7/10 in intensity, at least 3 times per week, described as burning; sharp, sticking, radiating upwards towards his sides, worsened by physical activity and pain could come by itself.  He used Flexeril (muscle relaxant) and Tylenol (pain reliever) to control his symptoms and could function with medications.  The note stated a physician had recommended bed rest.  The note states the CI’s function was limited, with inability to do anything while in pain.  He had lost at least a week of work from his job as a bank manager because of this problem.  Lower extremity motor and sensory function was normal; knee and ankle reflexes were +1 bilaterally.  Thoracolumbar spine examination revealed no evidence of radiating pain, muscle spasm or tenderness.  Straight leg raising test was negative bilaterally and no ankylosis was noted.  ROM was flexion with pain at 50 degrees onset of pain (normal 90), and extension was onset of pain at 20 degrees (normal 30).

The goniometric 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)	MEB NARSUM~2 Mo. Pre-Sep
(20040909)	VA C&P ~3 Mo. Post-Sep
(20050215)	
Flexion (90 Normal)	50(52)	70 w/Pain from 50	
Extension (30)	15(14)	30 w/Pain from 20	
R Lat Flexion (30)	20(18)	30	
L Lat Flexion (30)	15	30	
R Rotation (30)	20	30	
L Rotation (30)	20(19)	30	
Combined (240)	140	190	
Comment	(actual) and rounded off for combined total	Pain at flex 50, 
Pain at extension 20.	
§4.71a Rating	20%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and the VA used VASRD diagnostic code 5237 (lumbosacral or cervical strain) for a 10% rating.  The Board considered the MEB NARSUM to be the most probative for a rating at the time of separation because it was the most proximate to the date of separation, and consistent with the onset of pain limitations from the VA C&P examination and the MEB physical examination.  The Board considered the evidence and found that the forward flexion of the thoracolumbar spine was greater than 30 degrees, but not greater than 60 degrees for a 20% rating.  There was no evidence of incapacitating episodes having a total duration of at least 2 weeks prior to separation, or any peripheral nerve involvement for a higher rating using alternate coding.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the LBP condition.

Chronic Neck Pain Condition.  The first entry in the service treatment record for neck pain was a 9 June 1999 primary care visit for neck pain and stiffness after moving his head quickly.  Physical examination revealed tender right sternocleidomastoid muscle and decreased ROM to the right side due to pain.  A cervical spine X-ray performed on 27 February 2004 for complaint of back pain since July 2003 was unremarkable.  At an orthopedic follow-up consultation on 17June 2004, the neck examination showed very limited rotation and the CI could not do chin to chest (full flexion).  The MEB physical exam on 12 July 2004, 4 months prior to separation, noted decreased and painful cervical spine ROM to approximately 15 degrees flexion and 15 degrees extension without a goniometer.

The 9 September 2004 NARSUM, dictated 2 months prior to separation, notes the CI had sharp neck pain radiating downward, constant pain 5/10 at rest and 8/10 during exacerbations.  Pain was exacerbated by running, twisting, riding in tactical vehicles, climbing into and on tactical vehicles, bending, pulling, lifting, all three Army Physical Fitness Test exercises, firing a weapon in anything but the standing position, wearing harness, rucksack, an LBV or a flack vest.  Pain was relieved by rest, heat, cold and muscle relaxant medication.  Physical examination of the cervical spine revealed that there was pain with resisted extension when trying to place his chin on his chest.  There was limited ROM secondary to discomfort, no palpable bony masses, no palpable bony step-off, no skin changes, no wryneck and no torticollis evident.  There was normal upper extremity ROM and strength.  ROM performed by physical therapy on 3 August 2004, were Flexion 30 degrees (normal 45), extension 21 degrees (normal 30).

At the VA C&P exam performed on 15 February 2005, 3 months after separation, the CI reported problems with neck pain as a result of a whiplash injury in an MVA.  The CI reported aching to sharp pain, at least two times per month, lasting for an hour, which came and went away by itself.  He could function with medications.  He used over the counter medications.  While having pain, function was limited due to inability to turn his head and while driving.  The CI reported he had not lost any time from work as a banker supervisor, a job he held since September 2004.  Physical examination revealed normal posture and gait.  Cervical spine examination revealed no evidence of radiating pain or muscle spasm, no tenderness, no position ankylosis, ROM was normal, flexion 45 degrees (normal 45), extension 45 (normal 45), not limited by pain, fatigue, weakness, lack of endurance, or incoordination, with ROM after repetitive use.

The goniometric 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.

Cervical ROM
(Degrees)	MEB ~2 Mo. Pre-Sep
(20040909) p.37	VA C&P ~3 Mo. Post-Sep
(20050215) p.110	
Flex (45 Normal)	(30)	45	
Extension (45)	20 (21)	45	
R Lat Flexion (45)	20 (22)	45	
L Lat Flexion (45)	25(23)	45	
R Rotation (80)	40(37)	80	
L Rotation (80)	40(37)	80	
Combined (340)	175	340	
Comment	(actual) and rounded off for combined total		
§4.71a Rating	20%	0%	

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and the VA used VASRD diagnostic code 5237 (lumbosacral or cervical strain) for a 10% rating by the PEB and a 0% rating by the VA.  The Board considered the MEB NARSUM to be the most probative of the examinations for a rating at the date of separation as already discussed above for the lumbar spine rating recommendation.  The Board found the exam was consistent with the history of variable, intermittent, neck pain described in the history and with the prior MEB physical examination, although no goniometer used and it documented the fact that there were significant limitations to cervical spine movement due to pain.  The Board deliberated upon the significant improvement of the ROM examination after separation and determined that it was consistent with the history of intermittent pain and that change in occupation, to a sedentary bank supervisor, could decrease the strain on his neck and more likely than not produced improvement.  The Board found evidence most proximal to the time of separation of forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, which met the higher 20% adjudication using the VASRD general rating formula for diseases and injuries of the spine.  The Board did not find evidence of neurological compromise, or periods of incapacitation prior to separation, for a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the neck pain condition.

BOARD FINDINGS:  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 LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the neck pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5237	20%	
Chronic Neck Pain	5237	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130910, 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 XXXXXXXXXXXXXXX, AR20140019502 (PD201301253)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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