RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01753
BRANCH OF SERVICE:  Army	BOARD DATE:  20140812
SEPARATION DATE:  20041111

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CW3/W-O3 (152D, OH-58 Helicopter Pilot) medically separated for chronic neck and low back pain (LBP).  These 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 P3/U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The neck and low back conditions, characterized as “chronic low back pain” and “cervical spondylosis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “Chronic subjective low back pain, status post L3-4 fusion,” and “Chronic subjective neck pain with cervical spinal stenosis” as unfitting, rated 10% and 10% respectively, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI rebutted this finding, requesting the PEB include VASRD codes 5293 and 5295.  The PEB responded that “Diagnosis codes 5293 and 5295 are no longer valid. They were superseded on 25 September 2003 by VASRD change 33. Your case was properly rated in accordance with policy and regulations using correct valid codes.”  The CI made no appeals and was medically separated.

CI CONTENTION:  “Condition was never fully corrected.  Physical therapy increased pain level.  Quality of life continues to deteriorate as symptoms advance with age.  I continuously seek treatment to relieve symptoms, (i.e. physical therapy, chiropractic, acupuncture) and I am able to find very little, if any relief from the low-back pain associated with the failed laminectomy/fusion.  I maintained a FFD Flight Duty Medical Evaluation after surgery and even through the MED process.  My tour of combat duty in support of Operation Iraqi Freedom was cut short due to symptoms of degenerative disc disease affecting my cervical spine and no surgical correction was applied due to the apparent lack of success in correcting my lumbar spine 3 years earlier.  I made every effort to continue to serve on active duty and was denied an MOS reclassification, or any other duty for which I was fully trained and qualified to perform with limited physical ability.  Since my MEB, thousands of wounded service members have been retained on active duty with physical conditions and limitations much more complex than mine. I feel that my rating was unjust due to the fact that my efforts to demonstrate that I was still a valuable asset to the US Army were met with a lack of support and that if my medical condition was so serious to disqualify me from service, I should have been rated at a level to justify medical retirement. I served over 17 years in total, with over 15 on active duty. I earned an honorable retirement.”

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 low back conditions are addressed below.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – dated 20040824	VA – (4 mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Low Back Pain	5241	10%	Degenerative Disk Disease and Osteoarthritis, Lumbar Spine	5010-5243	10%	20050308	
Chronic Subjective Neck Pain	5238	10%	Degenerative Disk Disease and Osteoarthritis, Cervical Spine	5010-5243	10%	20050308	
Other x 0 (Not in Scope) 	Other x 6 (Not in Scope)	20050308	
Combined:  20%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20050622 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his conditions continue to burden him, and the significant impact they have had on his quality of life.  It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate members for future severity or potential complications of conditions.  That role and authority is granted to the Department of Veterans Affairs (DVA).  The Board uses DVA evidence, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  The Board also acknowledges the CI’s contention that certain improprieties may have occurred during the DES processing of his case.  It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in regard to this matter.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of DES fitness and rating determinations, based on severity at separation.

Low Back Pain (LBP).  This CI has had a long history of LBP.  In January 2001, he had surgery on his lumbar spine.  After surgery he condition improved.  However, his back symptoms returned and an MEB was initiated.  The MEB physical examination was in June 2004.  On exam of the lower back, straight leg raise (SLR) was negative.  Neurological exam of the lower extremities was normal.  Range-of-motion (ROM) was measured and is summarized in the chart below.  The CI was separated from service on 11 November 2004.  Four months later, he had a VA Compensation and Pension (C&P) exam of his lower back.  There were no complaints of radiating pain on movement.  Muscle spasm was absent, and SLR was negative bilaterally.  Neurological exam of the lower extremities was normal.  The ROM evaluations which the Board weighed in arriving at its rating recommendation, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	MEB ~ 5 mos. Pre-Sep
(20040609)	VA C&P ~ 4 mos. Post-Sep
(20050308)	
Flexion (90 Normal)	65	90	
Extension (30)	15	30	
R Lat Flexion (30)	25	25	
L Lat Flexion (30)	20	25	
R Rotation (30)	55	20	
L Rotation (30)	50 	20	
Combined (240)	185	210	
§4.71a Rating	10%	10%	

The Board carefully reviewed all available evidence, and directs attention to its rating recommendation.  The Army PEB and the VA chose different coding options for the LBP condition, but both assigned a disability rating of 10%.  At the June 2004 MEB exam, forward flexion was 65 degrees and combined thoracolumbar ROM was 185 degrees.  At the March 2005 C&P exam, combined thoracolumbar ROM was 210 degrees.  IAW VASRD §4.71a, a 10% rating is warranted when thoracolumbar forward flexion is greater than 60 degrees, but not greater than 85 degrees.  Also, a 10% rating is warranted when combined thoracolumbar ROM is greater than 120 degrees but not greater than 235 degrees.  After a thorough review of the evidence, the Board determined that a disability rating of 10% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the LBP condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling spine condition which would justify a rating higher than 10%.

The Board also considered the matter of thoracolumbar peripheral neuropathy.  After review of all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting thoracolumbar radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the LBP condition.  IAW VASRD §4.71a, the LBP condition meets criteria for a 10% rating due to thoracolumbar forward flexion greater than 60 degrees, but not greater than 85 degrees; and combined thoracolumbar ROM greater than 120 degrees but not greater than 235 degrees.

Neck Pain Condition.  In July 2003, the CI started having neck pain that would radiate to the right upper extremity.  A nerve conduction study was consistent with right cervical radiculopathy.  At the June 2004 MEB exam, cervical ROM was measured, and is summarized in the chart below.  At the March 2005 C&P examination of his neck, there was no evidence of radiating pain on movement.  There was no muscle spasm or tenderness.  The cervical ROM evaluations which the Board weighed in arriving at its rating recommendation, are summarized in the chart below.

Cervical ROM
(Degrees)	MEB ~5 mos. Pre-Sep
(20040609)	VA C&P ~4 mos. Post-Sep
(20050308)	
Flex (45 Normal)	40	45	
Extension (45)	55	45	
R Lat Flexion (45)	15	35	
L Lat Flexion (45)	30	35	
R Rotation (80)	75	80	
L Rotation (80)	65	80	
Combined (340)	270	320	
§4.71a Rating	10%	10%	

Once again, the Board carefully reviewed all available evidence.  The Army PEB and the VA chose different coding options for the neck pain condition, but both assigned a disability rating of 10%.  At the June 2004 MEB exam, forward flexion was 40 degrees and combined cervical ROM was 270 degrees.  At the March 2005 C&P exam, combined cervical ROM was 320 degrees.  IAW VASRD §4.71a, a 10% rating is warranted when cervical forward flexion is greater than 30 degrees, but not greater than 40 degrees.  Also, a 10% rating is warranted when combined cervical ROM is greater than 170 degrees but not greater than 335 degrees.  After a thorough review of the evidence, the Board determined that a disability rating of 10% was appropriate.  The Board attempted to find a path to a higher rating, using other codes which could be applied to the neck condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling cervical spine condition which would justify a rating higher than 10%.  The Board also considered the matter of cervical peripheral neuropathy.  After review of all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting cervical radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the neck condition.  IAW VASRD §4.71a, the neck condition meets criteria for a 10% rating due to cervical forward flexion greater than 30 degrees, but not greater than 40 degrees; and combined cervical ROM greater than 170 degrees but not greater than 335 degrees.

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 LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the neck pain 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130930, 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 XXXXXXXXXXXXXXXXX, AR20150002598 (PD201301753)

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						 
CF: 
(  ) DoD PDBR
(  ) DVA