RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00238
BRANCH OF SERVICE:  AIR FORCE	 SEPARATION DATE:  20030801

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Air National Guard E-5, Security Forces Journeyman, medically separated for chronic neck and low back pain.  These conditions could not be adequately rehabilitated to meet the physical requirements of her Air Force Specialty (AFS).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “lumbar degenerative disc disease at L5-S1” and “cervical spondylosis and cervical radiculopathy” were forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic neck pain, with disc protrusion C5-6” and “chronic low back pain, degenerative disc changes L5-S1” as unfitting, rated 10% and 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  “Her conditions continue to worsen and negatively impact her daily activities.  Her complete submission is at Exhibit A.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON 

IPEB - Dated 20060921	VA* - (~17 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5243	10%	Residuals, Cervical Injury	5237	NSC	20050111	
Chronic Low Back Pain	5242	10%	Degenerative Disc Disease	5003	10%	20050111	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 	
RATING:  20%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20050509 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:    

Chronic Neck Pain Condition.  Among the earliest notes in the service treatment record was an MRI report dated 17 September 2004, which was requested for cervical pain and radiculopathy. It showed right-sided disc protrusion at C5-6, which was likely to impinge on the ventral nerve root of C6; at C6-7 there was a minimal non-impinging disc annulus bulge.  A spinal evaluation on 1 November 2004 indicated the CI had right-sided neck pain and right shoulder pain.  She denied any arm weakness or clumsiness and had some headaches associated with the neck pain.  On examination she had difficulty bending her neck due to stiffness and had a negative Spurling’s test (to determine cervical root irritation).  Upper extremity strength, sensation and reflexes were normal.  Epidural steroid injections (ESI) or nerve root blocks were suggested; physical therapy was to continue along with a trial of cervical traction.  On 24 November 2004 the CI had a right-sided interlaminar C7-T1 ESI.  On 29 November 2004, shoulder pain persisted and there was full cervical range-of-motion (ROM) with pain on extension.  

The narrative summary (NARSUM) dated 21 September 2004 indicated the CI complained of constant neck pain.  She attributed her symptoms to training in the military for the prior 6 years and described an accident in October 2002 when she almost fell out of a Humvee and suffered a right shoulder and arm injury.  The neck and back pain began simultaneously.  She described a “spot” in the right upper back, which was constantly painful and the neck pain was worse than the back pain.  Forward flexion ROM was reduced with the chin two fingerbreadths off the chest and rotation of the chin was limited to two fingerbreadths off either shoulder.  Forward flexion produced right interscapular pain, mild right paraspinal muscle and trapezius muscle tenderness.  A cervical MRI scan showed disc protrusion at C5-6 on the right.  The examiner’s impression was chronic neck pain probably secondary to C5-6 disc protrusion without evidence on examination of myelopathy or radiculopathy

At the VA Compensation and Pension (C&P) examination dated 11 January 2005 performed 17 months after separation from active duty and 24 months prior to separation from the National Guard, the CI reported her pain level to be 7-9/10.  She had a normal gait and normal stance and was able to get on and off the table without difficulty.  Examination of the neck revealed a relatively normal ROMs of the cervical spine with flexion to 45 degrees, extension 45 degrees, lateral flexion to 45 degrees bilaterally, and right and left rotation 80 degrees bilaterally.  TENS (transcutaneous electrical nerve stimulation) treatments did not help her neck pain, but trigger point injections of the trapezius and rhomboid region were offered on 20 May 2005.  

In March 2006, she was able to flex her chin to the chest, extend to 60 degrees, flex to the left 30/45 degrees, flex to the right 45/45 degrees, and rotated both left and right to 60/80 degrees.  A VA Ambulatory/Outpatient Care note dated 3 April 2006 indicated the CI’s neck pain was 6/10 in severity (10 being the worst pain), which radiated from the right neck to the right shoulder and at the level of the scapular spine.  She had a cervical injection on 9 January 2006 and had relief for about 2 weeks.  Additionally, she took gabapentin (for nerve pain) and diclofenac (a nonsteroidal anti-inflammatory drug (NSAID).  On examination, she had a slight decrease of lateral rotation of the neck with a pulling sensation on the right; otherwise she appeared to have full ROMs of the neck and full ROMs of the upper extremities with normal strength.  A revised temporary P4 profile was issued on 6 April 2006, which indicated the CI was not world-wide qualified.  The commander’s statement dated 23 October 2006 indicated that the CI was a positive influence, but she was obviously in discomfort most of the time.  While her grit was inspiring, the commander noted “there has never been a time when I felt she could perform the work in the CBRNE (chemical, biological, radiation, nuclear, and high yield explosives) ground crew ensemble, while wearing the PASGT (Personnel Armor System for Ground Troops) helmet, or sitting at a desk for long periods of time.  She has always asked to do more, but despite several approaches to treatment, I do not believe her condition allows her to function at a high level.”  On 31 October 2006, at a Physical Medicine and Rehabilitation (PM&R) visit cervical spine flexion was approximately 50 degrees, extension 40 degrees, lateral flexion 20 degrees and rotation 30 degrees.  In November 2006, physical therapy cervical ROM measurements were:  forward bending 12 degrees, back bending (extension) 28 degrees, left lateral side bending 9 degrees, right lateral side bending 21 degrees, left rotation 32 degrees, and right rotation 38 degrees.  In May 2007, the CI was noted to be using the TENS unit with some help and was undergoing a psychological pain support group, which also helped her.  On examination she had tenderness on the cervical paraspinals and trapezius without muscle spasm.  The ROM measurements were approximately 50 degrees of flexion, 40 degrees of extension, lateral flexion 20 degrees, and rotation 30 degrees.  An MRI in April 2007 showed a slight interval progression of degenerative changes at C5-C6.  Post-separation frequent physical therapy treatment sessions were carried out to include cervical traction that afforded some relief in 2008.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5243 (Intervertebral disc syndrome).  The VA assigned a NSC using code 5237 (cervical strain) for residuals, cervical injury.  The Board sought a route to a higher rating; however in the absence of ankylosis, muscle spasm or guarding, or incapacitation, the Board was unable to find any route to a higher rating.  However, the Board did note a physical therapy examination in November 2006 where the ROM measurements were disparate from ROM measurements just 1 day before.  Subsequent measurements also were of concern related to the equipment used for the measurements, whether the measurements reflected measurements only to the inception of pain, or whether there was an effort dependent variation between exams.  The Board then considered whether an additional rating could be recommended under a peripheral nerve code.  A functional impairment linked to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spine conditions.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed 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,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  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 condition.

Chronic Low Back Pain Condition.  The CI had an onset of lower back pain and left radicular symptoms that began in approximately September 2003.  An MRI dated 9 December 2003 was otherwise normal with the exception of some narrowing of the L5-S1 disc space.  Another MRI dated 19 December 2003 was performed for a significant left S-1 neuralgia over the prior 2 years, which was worse with pain, numbness, and weakness compared to the right leg.  There were mild degenerative changes at L5-S1 with a small annular tear and disc desiccation without any significant central canal, lateral recess, or foraminal (passageway through which nerves pass from the spinal cord outside the vertebral column) compromise.  At an examination dated 30 December 2003 the CI had a full range-of-motion (ROM) and tenderness to palpation at L5-S1.  Physical therapy was instituted in February 2004.  She had been on numerous medications including Bextra (valdecoxib, a nonsteroidal anti-inflammatory drug (NSAID)), Flexeril (cyclobenzaprine, a muscle relaxant), Tylenol #3 (acetaminophen, a pain reliever and codeine, a narcotic), Naprosyn (naproxen, an NSAID), and Robaxin, (methocarbamol, a muscle relaxant), which only gave brief improvement.  Physical therapy was instituted in February 2004 and she noticed 60% improvement of the lower back pain, but she continued to have left posterior thigh pain; however, her foot numbness improved.  She continued to complain of sharp and aching sensations in in her lower back and increased pain, particularly with running and going up hills.  A revised temporary L3 profile was issued for lower back pain on 1 June 2004, which was later revised (see below).  Examination on 28 June 2004 revealed her gait and station were normal and she was able to heel walk and toe walk without any difficulty.  Lumbar flexion was full and there was tenderness to palpation in the bilateral PSIS (posterior superior iliac spine) region as well as hypermobility at the bilateral SI (sacroiliac) joints.  Strength of the bilateral lower extremities was normal and neurologic evaluation was unremarkable.  The CI underwent an ESI on 2 July 2004 and noticed 100% resolution of her low back pain and leg pain, although she continued to feel some leg tightness.   

The narrative summary (NARSUM) (also entitled case history) dated 21 September 2004 noted neck and back pain began simultaneously and was related to an accident in October 2002 and was exacerbated in July 2003.  On examination she forward flexed her back to 80 degrees, which produced left posterior thigh pain, while extension and rotation were to 20 degrees and were not painful.  The neurological evaluation was unremarkable and the CI was determined not to be a surgical candidate.  Physical therapy and anti-inflammatory medication was to be continued and a lumbar diskogram or lumbar epidural injections for control of back pain were recommended.

A lumbar spine MRI dated 21 September 2004 revealed mild disc degenerative change at L5-S1. Nortriptyline (an antidepressant also used for nerve pain) was instituted for radicular symptoms on the left side.  TENS treatments helped the back pain.  The CI had full lumbar ROMs with some pain on lateral torsion and electrodiagnostic studies of the left lower extremity were normal in August 2005.  Tramadol (an opioid-like narcotic) and Flexeril were added to the medication regiment in September 2005.  An MRI in October 2005 showed a small midline annular tear at L5-S1 level without canal or foraminal compromise.  In March 2006, the CI’s ROM measurements were forward flexion to 90 degrees, extension to 30/30 degrees, tilt to the left 20/30 degrees and to the right 30/30 degrees, and rotation right and left only to 15/30 degrees.  There was no evidence of specific neurologic involvement either by neurologic evaluation or by any tests.  A lumbar medial branch injection for back pain was performed in April or July 2006 with subjective subsequent worsening of the pain.  A revised temporary P4 profile was issued on 6 April 2006 for her “medical condition,” and the commander’s statement was not specific relating to the lower back condition, but the commander did not believe the CI’s condition allowed her to function at a high level.  

At the VA Compensation and Pension (C&P) examination dated 11 January 2005, the CI reported walking caused her to have low back pain and some referral of the pain to her right leg.  Examination of the lumbosacral spine revealed her flexion was normal at 90 degrees; lateral flexion, extension, and rotation of her lower back were normal at 30 degrees.  By April 2006 the low back pain was rated at 4/10 and was described as aching and pinching with pins and needles down her left ankle.  She was able to flex at the waist and get her fingertips to the low part of the shins.  On 31 October 2006, lumbar spine ROM measurements were approximately 40 degrees flexion, extension 10 degrees, and lateral flexion 20 degrees with tenderness on palpation of the paraspinals.  In a physical therapy note dated 1 November 2006 truncal ROM measurements were reported to be:  forward bending 36 degrees, back bending 10 degrees, left lateral side bending 17 degrees, right lateral side bending 21 degrees, left rotation 17 degrees and right rotation 12 degrees.  All motions were limited by pain.  In February 2007 the CI received a left-sided medial branch block at three levels and a left sided SNRB (selective nerve root block) at S1.  In March 2007 electrodiagnostic studies of upper and lower extremities revealed no evidence of a cervical or lumbosacral radiculopathy.  In May 2007 the CI was noted to be using the TENS unit with some help and was participating in a psychological pain support group, which helped her.  On examination she had no tenderness on the lumbar spine.  ROM measurements were approximately 40 degrees of flexion, 10 degrees of extension, and 20 degrees of lateral flexion with negative straight leg raise and a normal gait.  An MRI in April 2007 showed minimal degenerative changes at T7-T8 on the left and no significant interval change within the lumbar spine.  
The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5242 (Degenerative arthritis of the spine) for chronic low back pain, degenerative disc changes L5-S1.  The VA assigned a 10% rating using code 5003 (degenerative arthritis) for degenerative disc disease, L5-S1; however, the VA examination was 24 months pre-separation.  The Board sought a route to a higher rating, but was unable to do so in the absence of ankylosis, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitation.  However, the Board noted the flexion to approximately 40 degrees in October 2006 and again in May 2007, but discussed its inconsistency from other measurements over the preceding 2 years.  Nevertheless, the Board understood that the CI had been treated with multiple medications and ESI’s, which had afforded sufficient relief to the CI such that when having taken the medications the pain was less than when not having taken the medications.  The Board also discussed that the 40 degrees flexion was an approximation and measurements of rotation were not taken; therefore, accuracy for use in rating is less than ideal, although ROM measurements are within the purview of the PM&R specialty.  Furthermore, there was no credible evidence such as an intercurrent injury, surgery, illness, or pregnancy to explain the decrement of the ROMs.  The Board then considered whether an additional rating could be recommended under a peripheral nerve code.  A functional impairment linked to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spine conditions.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed 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,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  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 low back pain condition.

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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic lower back pain condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  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 20140103, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion

The CI’s chronic low back pain condition at the time of separation from the National Guard (NG) clearly warrants a 20% rating.  Part of the difficulty in assessing an appropriate rating for this CI is that the service treatment record provided little to no credible medical history or examinations during the hiatus from active duty separation to National Guard separation except for the physical therapy and PM&R evaluations.  What was notoriously lacking was information and documentation that either accounted for the decrement in flexion and the other ROMs, provided a statement that nothing of significance transpired in that interval, or asserted that the decrement was based on the natural course of the disease.  Furthermore, the Board had very limited information about the type of work the CI did between the separations, whether she was injured, and if so, to what degree, and whether she sought and/or was under profession care for the back condition.  Nevertheless, the CI did see both a physical therapist and PM&R prior to separation; and although the PM&R examiner’s approximation of 40 degrees flexion is inconsistent with VASRD requirements to use a goniometer for measurements in order to determine a rating, a physical therapy measurement of flexion to 36 degrees as well as the remainder of the ROMs within 1 day of the PM&R measurement is reasonably close and sufficiently accurate to provide a rating, thereby affording support for the PM&R specialist’s approximation of 40 degrees.  Furthermore, the PM&R specialist’s final measurement post NG separation of approximately 40 degrees is consistent with his prior flexion determination; and, therefore has the imprimatur of credibility.  The Board’s duty is to determine a rating most proximate to separation or to 12 months beyond for VA examinations.  To afford the CI the benefit of VASRD §4.3 (reasonable doubt), a 20% rating is not only reasonable, but it is appropriate and in concert with the DoDI 6040.44 guidance to be “fair and equitable.”

Therefore, the minority member recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Neck Pain 	5243	10%	
Chronic Low Back Pain	5242	20%	
RATING	30%	

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-00238.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Attachment:
Record of Proceedings