RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXX	CASE: PD-2014-00279
BRANCH OF SERVICE:  Army	BOARD DATE:  20150722
SEPARATION DATE: 20051015

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Military Police) medically separated for chronic low back pain (LBP) and chronic cervical pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The neck and lower back conditions characterized as “neck pain with disc bulging at C6-C7” and “low back pain with disc bulging at L3 through S1” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition of “mild persistent asthma” for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain” and “chronic cervical pain” as unfitting, rated 10% and 10%, with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining asthma condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The VA rated me higher with other problems.  Chronic Cervical Strain VA rated 20%.  Chronic low Back pain/Lumbar degenerative VA rated 40%”.  His 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 20050823	VA - ~11 Months Post-Separation  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Lumbar Degenerative Disc Disease	5010-5242	40%	20060913	
Chronic Cervical Pain	5299-5237	10%	Chronic Cervical Strain	5237	20%	20060913	
Mild Persistent Asthma	Not Unfitting	Nocturnal Asthma Associated With Phrenic Nerve Paralysis	6602	10%	20060913	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 8	
RATING:  20%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20061017 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  

Lumbar Degenerative Disc Disease (DDD).  In April 2002, the service treatment record (STR) documented an initial report of LBP after exercise and a second report was documented in September 2003 after a motor vehicle accident (MVA).  Several physical therapy (PT) entries in September 2004 (13 months prior to separation) documented intermittent abnormal gait or painful motion.  The CI failed management with medications, chiropractic manipulation, PT and traction, rehabilitative medicine, electrotherapy, and epidural steroid injections.  Radiographic studies in September 2004 and July 2005 demonstrated L3-L4, L4-L5 and L5-S1 DDD with no evidence of nerve root impingement.  Range-of-motion (ROM) measurements from consultation with rehabilitation medicine (10 months prior to separation) documented a thoracolumbar forward flexion of the 85-90 degrees (normal 90; compensable at 85), extension 20 degrees (normal 30), with “slight increase in lower back pain.”  There was absence of muscular atrophy and muscle spasm.  Gait was normal without use of assistive devices.  Neurosurgical consultation in March 2005 (7 months prior to separation) documented mild DDD of the lumbar spine without compression of the spinal cord or nerve roots.  The MEB’s DD Form 2808, Report of Medical Examination (dated 22 July 2005, 3 months prior to separation), documented decreased ROM with “pain in any direction…no spasm noted.”  The commander’s performance statement annotated functional limitations, attributed to his back condition, which prevented him from “sitting, standing, or bending for prolonged periods of time, [and from performing the] actions required of [military police]….”

The narrative summary (NARSUM) exam was performed on 27 July 2005 (3 months prior to separation).  The CI reported that his “neck pain [was] much more severe than his lower back pain.”  Both neck and back pains prevented him from “sitting for more than 15-20 minutes, standing for more than 30 minutes” and that he could not do “too much walking.”  The NARSUM examiner documented active lumbar forward flexion of 60 degrees (normal 60 for isolated lumbar flexion) annotating painful motion at 50 degrees; and extension of 30 degrees (normal 25), annotating “spinal spasms.”  The gait was “slow” and sensory, motor and reflex testing were all normal.

At the VA C&P exam dated 13 September 2006, approximately 11 months after separation, the CI reported three episodes of back pain in the last year that had required approximately “1 week of bed rest for each episode.”  The VARD further provided the following thoracolumbar exam:  “normal low back contour, moderate muscle spasm,…flexion of 30 degrees,…and extension of 10 degrees with moderate pain…an increase in spasticity without further loss of forward flexion.”  The examiner further documented radiating pain on straight leg raise, altered sensation of the right leg (S1 distribution) and normal reflexes and muscle bulk (no atrophy) bilaterally.  Painful motion was elicited on the treadmill and repetitive lifting “increased difficulties with his low back,…[resulting in] increased spasticity without further loss of flexion…and normal…gait mechanics.”  Radiographs confirmed DDD of the L5-S1 lumbar spine.  The examiner diagnosed “lumbar DDD with mild right lower extremity lumbar radiculopathy and secondary moderate mechanical low back [pain]”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the low back condition as unfitting, and gave a rating of 10% coded 5299-5237 (lumbosacral strain), and further stated lack of neurologic deficit with ROM limited by pain.  The VA rated the lumbar DDD and moderate mechanical LBP at 40% coded analogously as 5010-5242 (arthritis due to trauma- degenerative arthritis of the spine).  The VA additionally granted a 10% rating for a right lower extremity radiculopathy, coded 8520 (sciatic nerve paralysis, mild).  In the interpretation of these somewhat incomparable examinations and determining the probative value of the prior to vs. after separation exams, the Board noted that the rehabilitative medicine thoracolumbar measurements and the NARSUM lumbar measurements were consistent with the diagnostic and clinical pathology in evidence, all rendering impaired ROM.  There was not a reasonable accounting for the progressively and significantly impaired ROM seen in the interval between separation and the after separation VA examination.  Therefore, based on all the evidence and associated conclusions just elaborated, members agreed that preponderant probative value should be assigned to the pre-separation evaluation with the associated mild impairment in ROM documented.

The Board next considered if there was documentation of evidence in support of a higher rating.  The STR documented minimal ROM impairment which was clinically incongruent with the degree of “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour,” as required under VASRD §4.71a to achieve a higher rating.  There was no documentation of thoracolumbar flexion less than 60 degrees, ankylosis, incapacitating episodes, or physician prescribed bed rest.  Members agreed, therefore, that there was insufficient evidence in support of a higher rating recommendation.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the low back condition was appropriately recommended in this case.

Lumbar Radiculopathy.  Members considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA after separation, for the associated sciatic radiculopathy.  Functional impairment linked to fitness is required to support a recommendation for addition of a peripheral nerve rating to disability in spine cases.  The Board’s threshold for such recommendations exceeds the VASRD reasonable doubt standard for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of the radiculopathy with the performance of duties at the time of separation.  The motor impairment documented at the time of the NARSUM exam was relatively minor and could not be linked to significant functional consequence.  It was not profiled, identified by the MEB, nor forwarded to the PEB for adjudication.  After due deliberation, and in consideration of the totality of the evidence, the Board concluded that there was insufficient support for recommending an additional disability rating for the right sciatic neuropathy.

Chronic Cervical Pain.  The first entry for neck pain was after an MVA which happened 2 years pre-separation.  The CI reported that since his car accident, he had “constant and severe pain,” and that turning the neck resulted in “a shocking feeling from the neck down” and that the muscles seemed to “swell up.”  The examiner documented “severe” tenderness to palpation over the cervical and shoulder muscles.  At a rehabilitative medicine evaluation (10 months prior to separation), the examiner documented “normal ROM, and strength in the upper …extremities bilaterally including hand grasp,” with normal sensation and reflexes, and without notable muscle spasm.  Radiographic imaging in December 2004 and July 2005 documented “disc bulging at C5-6, C6-7, and C7-T1 without evidence of disc space narrowing...or [nerve impingement].”  At a neurosurgical consultation (7 months prior to separation), the CI reported “neck spasms…and electric shock” sensations that have not responded to therapy.  The examiner documented normal motor and sensory examination with “mild” DDD of the C-spine and diagnosed “cervical strain” without nerve root compression.  The MEB’s DD Form 2808 documented “decreased ROM with pain in any direction.  No spasm noted.”  The NARSUM exam was performed on 27 July 2005 (3 months prior to separation).  The CI reported his neck pain was “much more severe” than his back pain.  The NARSUM examiner documented a flexion of 20 degrees (normal 45), and extension of 40 degrees (normal 45), both with painful motion.  There were also right paracervical muscle spasms, with normal muscle strength, sensory, and reflex exams and negative testing for radicular pain.

At the VA C&P exam the CI reported “dull constant pain and increased sharp pain with upper extremity material handling”; he denied any episodes of incapacitating neck pain.  The VA C&P exam documented moderate muscle spasm and normal contour; and flexion of 30 degrees, extension of 20 degrees, “all with moderate pain.”  There was also normal motor function and normal radiographs.  The examiner provided a diagnosis of “chronic cervical strain with loss of ROM without evidence of significant radiculopathy.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition at 10% coded analogously 5299-5237 (cervical strain), and further stated lack of neurologic deficit with ROM limited by pain.  The VA rated the neck condition at 20% coded as 5237 (cervical strain) for cervical flexion of 30 degrees.  There was STR evidence of cervical spine flexion of 20 degrees, painful motion, muscle spasm and DDD to warrant a 20% rating.  There was no evidence of flexion less than 15 degrees, or ankylosis and no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes which would support an additional or a higher rating.  The post-separation C&P exam documented similar findings.  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 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 low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the neck condition, by majority vote, the Board 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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Lumbar Degenerative Disc Disease	5299-5237	10%	
Cervical Strain 	5237	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140107, 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 XXXXXXXXXXXXXXXXXXXXXXXX, AR20160000188 (PD201400279)

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA