RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301325
BRANCH OF SERVICE:  Army	BOARD DATE:  20140304
SEPARATION DATE:  20040902

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (98C/Signals Intelligence Analyst) medically separated for low back and neck conditions.  The CI began developing neck and back pain with no associated trauma or injury sometime in 2001.  He was treated conservatively and when evaluated by orthopedics he was found to have C1-2 instability.  He underwent a C1-2 fusion in November 2002.  He was treated by the pain clinic but continued to experience pain.  His conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He listed depression on his Medical Evaluation Board (MEB) history form and a psychiatric addendum was completed on 5 November 2003.  He was issued a permanent P2U3L3S2 profile and referred for an MEB.  The chronic neck and low back conditions, characterized as “chronic neck pain (moderate/constant) status post [s/p] fusion C1-2” and “chronic low back pain (slight/intermittent) with subjective left lower extremity radiculopathy” 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 neck pain status post C1-2 fusion” and chronic low back pain” both “without neurologic abnormality” as unfitting, rated 20% and 0%, citing AR 635-40.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Total and permanent service connected disabilities per VA findings.” 

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.  In addition, the CI was notified by the Army that his case may be eligible for review of the military disability evaluation of any mental health (MH) condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose MH diagnoses were changed or eliminated during that process.  Since the CI responded to this mailing, it is presumed that he has elected review by the PDBR for the MH condition although he did not specifically contend for it on the DD Form 294.  In accordance with Secretary of Defense directive for a comprehensive review of the MH diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of the unfitting MH diagnoses in accordance with the VA Schedule for Rating Disabilities (VASRD) §4.129 and §4.130.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  The rating for the unfitting chronic neck and low back conditions and any MH conditions are addressed below; 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.

RATING COMPARISON:

Service IPEB – Dated 20040623	VA - (3 mos. and 11 mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain S/P C1-2 Fusion	5241	20%	Spinal Fusion, C1-2	5242	10%	20041228	
Chronic Low Back Pain	5299-5237	0%	Lumbar Strain Associated with Spinal Fusion, C1-2	5237	*20%	20050811	
No Additional MEB/PEB Entries	Other x 2	20050811	
Combined:  20%	Combined:  50%	
Derived from the Original VA Rating Decision (VARD) dated 20050708 (back deferred) and VARD dated 20050927 (based on C&P Spine Exam dated 20050811 which was within one year of separation and included the low back condition rating.

ANALYSIS SUMMARY:

Chronic Neck Condition.  Available treatment records document that the CI had gradual onset of neck pain.  In November 2002, he was diagnosed with an unstable os odontoideum (incomplete formation of one of the bones in the neck that helps stabilize rotational movement of the neck) and underwent cervical fusion of C1- C2 to protect his spinal cord.  In 2003, post-operative X-rays and magnetic resonance imaging (MRI) studies demonstrated cervical spine fusion at C1-C2 with marked restriction of flexion motion), but no evidence of instability.  The CI continued to report neck pain, episodes of tingling sensations in both arms left greater than right and weakness.  An electromyogram performed on 2 July 2003 demonstrated a mild left ulnar nerve neuropathy, but no evidence of a left motor radiculopathy.  An occupational therapy evaluation on 13 November 2003 evidenced left forearm atrophy, a 42% decreased grip strength in the left hand and normal sensation in the hands.  The therapist opined that the CI’s function limitations primarily stemmed from chronic pain and no formal therapy was indicated.  The narrative summary (NARSUM) performed 8 months prior to separation noted the CI continued to “have chronic daily pain, worsening with activity, clearly worsening with overhead activities or wearing Kevlar.  He has a difficult time doing activities with his arms over his head including grooming, putting on a shirt, etc.”  The NARSUM examination demonstrated decreased cervical range-of-motion (ROM) without focal neck tenderness to palpation.  At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported dull aching neck pain and popping as though there was bone on bone contact.  He reported pain flare ups that last a couple of hours which resolved with heat.  The physical examination was significant for neck tenderness to palpation and decreased ROM.

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~8 Mo. 
Pre-Sep
(20040116) 	VA C&P ~4 Mo. Post-Sep
(20041228) 	
Flex (45 Normal)	35	40	
Extension (45)	30	30	
R Lat Flexion (45)	35	30	
L Lat Flexion (45)	25	30	
R Rotation (80)	15	15	
L Rotation (80)	20	15	
Combined (340)	160	160	
Comment	No tenderness	Tenderness to palpation	
§4.71a Rating	20%	20%	

The Board directs attention to its rating recommendation based on the above evidence. the PEB adjudicated the chronic neck pain s/p C1-2 fusion condition as unfitting with a disability rating of 20% coded 5241, spinal fusion.  The VA rated the chronic neck pain s/p C1-2 fusion condition 10% coded 5242, degenerative arthritis of the spine.  The Board considered whether criteria for a higher than 20% rating criteria had been met.  There was no evidence of ankylosis or forward flexion of 15 degrees or less for a 30% disability rating under the general rating for diseases and injuries of the spine.  The Board also considered whether criteria for a higher than 20% rating had been met under VASRD code 5243, intervertebral disc disease.  There was no evidence of acute pain due to intervertebral disc diseased that required bed rest prescribed by or treatment by a physician.  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 chronic neck pain s/p C1-2 fusion condition.  The Board therefore recommends no change to the disability rating previously assigned.

Chronic Low Back Condition.  Available treatment records evidence a history of intermittent lower back pain which was first documented August 2000.  At that time the examiner noted marked scoliosis with flattening of the forward to backwards spinal curvature of the lumbar spine (lordotic curve).  A treatment note dated 10 June 2003 documented persistent lower back pain with new onset left foot numbness.  The physical examination was normal except for tenderness to palpation throughout the neck, thoracic and lumbar spine.  Radiographic evaluation dated 13 August 2003 demonstrated moderate lumbar scoliosis curved to the left.  An electromyogram study dated 3 November 2003 was normal with no evidence of radiculopathy.  The CI was treated with pain medications and chiropractic care.  The NARSUM notes the CI reported daily pain made worse prolonged sitting, standing, or aggressive aerobic activity.  The examiner documented no focal tenderness to palpation and decreased lumbar ROM.  At the VA Compensation and Pension (C&P) examination performed 11 months after separation, the CI reported lower back pain made worse with prolonged sitting and bending over.  The examiner noted left lumbar muscle spasm, “vague tenderness to palpation”, decreased lumbar ROM, and a normal gait.  The goniometric range-of-motion (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 ~8 Mo. Pre-Sep
(20040116) 	VA C&P ~11 Mo. Post-Sep
(20050811) 	
Flexion (90 Normal)	70	50	
Extension (30)	10	10	
R Lat Flexion (30)	25	20	
L Lat Flexion (30)	25	20	
R Rotation (30)	30	25	
L Rotation (30)	30	25	
Combined (240)	190	150	
Comment	No tenderness	+ spasm, tenderness	
§4.71a Rating	10% 	10% 	

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the lower back pain condition with cited application of AR 635-40 as unfitting with a 0% disability rating, coded 5299-5237, analogous to lumbosacral strain. The PEB’s 0% rating was supported by the USAPDA pain policy, but was not consistent with the VASRD §4.71a general rating formula for the spine.  The VA rated the lower back pain condition 20% coded 5237.  There is a disparity between the NARSUM and VA examinations with implications for the Board's rating recommendation.  The VA examination documented increased limitation of ROM, “vague” tenderness to palpation, and muscle spasms.  The Board deliberated the probative value of these conflicting evaluations, and carefully reviewed the entire file for corroborating evidence from the period preceding separation.  The corroborating evidence prior to and most proximate to separation was most consistent with the NARSUM examination; therefore, the Board placed lower probative value on the VA examination. 

The Board considered the scoliosis as EPTS, but aggravated by Service.  The Board determined that the multiple treatment notes documenting lumbar tenderness not resulting in abnormal gait or abnormal spinal contour was consistent with the 10% VASRD §4.71a general rating formula for the spine criteria.  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 lower back condition.  

Mental Health Review.  At the MEB evaluation, the CI reported symptoms of severe depression and worry about his future.  He also reported trouble sleeping. The NARSUM noted a past medical history of insomnia.  He was referred to psychiatry for evaluation of his depression symptoms and insomnia.  At the psychiatric evaluation the CI reported insomnia as his primary complaint.  He reported a 7-month history of difficulty falling asleep due to his back and neck pain.  His mental status examination (MSE) was normal except for his “tired of all this” mood.  An Axis I diagnosis was not rendered and the examiner opined that from a psychiatric standpoint the CI met retention standards.  The depression symptoms and insomnia were profiled during the DES process as S2, but were not implicated in the commander’s statement and not judged to fail retention standards.  At the VA C&P exam performed on 25 August 2005, 11 months after separation, the CI reported the he was attending college online and doing very well.  He reported a good relationship with his wife and kids.  He reported that he was treated for bipolar disorder after discharge from the military, but had not taken medications since February-March 2005.  He continued to report sleep disturbance.  The MSE was normal.  An Axis I diagnosis was not rendered and a Global Assessment of Functioning score of 70 (some mild symptoms [mild insomnia] or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships) was assigned.  All available evidence was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the depression symptoms and insomnia conditions significantly interfered with satisfactory duty performance.  There were no service MH records.  The NARSUM and VA examiners did not render an Axis I diagnosis.

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the military DES.  Although there was an S2 profile for depression and insomnia, there was no diagnosis of depression rendered by an MH or other medical professional.  The evidence of the available records shows that prior to and at the time of processing through the DES there was no MH diagnosis rendered; therefore, no MH diagnoses were changed to the CI’s possible disadvantage, the CI did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project, and all Board members agreed that the preponderance of evidence did not support an unfit determination for an MH disorder.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that in the absence of a mental health diagnosis there was insufficient cause to recommend a fitness determination for any MH condition and no additional disability ratings are recommended.

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 regulatory guidance contained in AR 635-40, paragraph B-24f (restricting the maximum rating for pain, regardless of how many separate anatomical sites, to 20%) for rating the chronic lower back pain without neurologic abnormalities condition was operant in this case and the condition was adjudicated independently of that policy/guidance memorandum by the Board.  In the matter of the chronic neck pain s/p C1-C2 fusion condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic lower back pain without neurologic abnormalities condition, the Board unanimously recommends a disability rating of  10%, coded 5237 IAW VASRD §4.71a.  In the matter of the MH condition, the Board cannot recommend an additional disability rating.  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 Neck Pain 	5241	20%	
Chronic Low Back Pain	5237	10%	
COMBINED (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130911, 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 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20140008169 (PD201301325)

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 30% 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 30% 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