RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00366
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated, National Guard, E5, Combat Engineer, medically separated by Informal Physical Evaluation Board (PEB) for “chronic neck pain following cervical fusion” and “chronic subjective low back pain,” rated 10% and 10% respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI’s application elaborated no specific contention.  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 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 Veterans Affairs Schedule for Rating Disabilities (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:  

SERVICE PEB –20041220	VARD - 20020227	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain Following Cervical Fusion Times Two	5241	10%	Degenerative Disc Disease, Cervical Spine	5293-5290	20%	20010305	
Chronic Subjective Low Back Pain Due to Degenerative Disc Disease	5299-5242	10%	Degenerative Disc Disease, LS Spine	5293-5292	10%	20010305	
Cervical Myelopathy	Not Unfitting	No VA Placement	
COMBINED RATING:  20%	COMBINDED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Neck Pain Following Cervical Fusion.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a history of C5-6 anterior cervical discectomy with fusion (ACDF) in 1998.  In June of 2000, he was involved in a motor vehicle accident (MVA), injuring his C3-4 vertebrae.  In November of 2000, he underwent another ACDF surgery to mitigate the effects from this injury.  The surgery had complications which required a subsequent re-fusion of the vertebrae within days of this procedure.  Magnetic Resonance Imaging (MRI) in October 2004 reported changes in the CI’s C4-5 disc with some desiccation as well as posterior protrusion.  In addition, there was a slight increased signal (possible sign of nerve cell loss) in the cord at this level.  Despite further treatment, the CI’s neck condition could not be adequately rehabilitated to meet the physical requirements of his military specialty and was referred for an MEB.  

At the MEB examination (recorded on DD Form 2808) dated November 2004, 2 months prior to separation, the CI reported persistent pain and paresthesia (burning, tingling) with right greater than left upper extremity pain.  Physical exam showed the CI’s neck was tender to palpation at the C7 vertebra.  Sensation to light touch was symmetric and intact and strength was 5/5 (normal) to all muscle groups in bilateral upper and lower extremities.  The CI’s deep tendon reflexes were +2 for his upper extremities and +3 for his lower extremities (normal).  He had a positive Hoffman on the right side (abnormal reflex in the hand-possible sign of nerve regeneration or cord compression).  

At the VA Compensation and Pension (C&P) examination on 5 March 2001, performed 4 years before separation as well as 3 months after the CI’s second ACDF surgery, the CI had reported his post-surgical recovery status including pain in his neck with restricted motion.  Multiple radiographic views of the CI’s cervical spine revealed a solid interbody fusion of C5-6 vertebrae along with marked narrowing of C3-4 with an anterior graft in place.  The examiner specifically remarked an inability to assess the status of the CI’s fusion at C3-4 given the early stage of the exam’s occurrence postoperatively.  The views did show mild narrowing of the C4-5 disc with small osteophytes anteriorly.  Physical exam showed a well healed anterior scar on the CI’s neck with no tenderness or crepitation with motion.  Neurologically, deep tendon reflexes were active and equal in tested muscle groups and there was no motor weakness or sensory loss in the upper or lower extremities.  The CI could walk on his heels and toes without difficulty and squat and rise from the squatting position without assistance.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under VASRD code 5241 (spinal fusion), citing limited cervical ROM limited by pain with localized tenderness and no neurologic abnormality.  The VA assigned a 20% rating using an analogous VASRD code 5293-5290 (cervical spine, limitation of motion) based on the VA C&P examination 4 years before separation, citing a moderate limitation of motion of the CI’s cervical spine under the older VA spine rules.  Those VASRD criteria had been changed in September 2002 and 2003, and were no longer in effect at the time of the CI’s separation.  The Board agreed that a 30% rating, but no higher, was justified for limitation of flexion (forward flexion of the cervical spine 15 degrees or less) as objectively reported on both the MEB and VA exams, although the MEB exam was assigned higher probative value given its significantly closer proximity to date of separation as well as the VA exam’s near proximity to the CI’s second ACDF.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  In addition, there was no associated radiculopathy for a separate peripheral nerve rating.  Although the CI experienced radiating pain and paresthesia (cervical myelopathy), there was no objective evidence of a radiculopathy (fixed neurologic deficit) or functional impairment with a direct impact on fitness.  While the CI may have experienced radiating pain from the neck condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There is no evidence in this case that there was radiculopathy with associated functional impairments separately functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the chronic neck pain condition, coded 5241.  

Chronic Subjective Low Back Pain.  The history concerning the CI’s low back pain centered around the June 2000 MVA mentioned above.  At the MEB examination dated 4 November 2004, 2 months prior to separation, the CI reported symptoms of right leg weakness, “which were precipitated by tingling sensation in his leg ….”  He reported no loss of bowel or bladder control.  He had epidural steroid injections which provided some relief from his baseline pain reported to be 5 out of 10.  Radiographic studies in March 2001 noted mild narrowing involving the L5-S1 vertebrae interspace.  An MRI (referred to but undated in the evidence) showed degenerative disc disease with desiccation at this level.  Exam documented a normal gait with negative testing for radicular symptoms.  Motor, sensory and reflex testing was normal.  There was painful and limited ROMs of forward flexion to 75 degrees (normal 90) and combined ROM of 115 degrees (normal 240).  The VA C&P exam noted abnormal spine imaging and slightly limited ROM of the lumbosacral spine (not thoracolumbar spine).  Motor, sensory and reflex exams were normal.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the analogous 5299-5242 code (degenerative arthritis of the spine), citing thoracolumbar range of motion limited by pain, without neurologic abnormality.  The VA also assigned a 10% rating using the analogous 5293-5292 code (lumbar spine, limitation of motion) based on the VA C&P examination citing slightly limited motion of the lumbar spine; under the older VASRD spine criteria.  The Board assigned significantly higher probative value to the MEB exam versus the remote VA exam.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (combined ROM of the thoracolumbar spine not greater than 120 degrees) reported on the MEB examination, 2 months prior to separation.  

There was no documentation of incapacitating episodes which would support a higher rating under that formula.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairments such as weakness with a direct impact on fitness that were separately functionally impairing for duty.  The Board therefore concluded that additional disability rating was not justified on this basis.  

In the matter of the low back pain condition, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  

BOARD FINDINGS:  In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 30%, coded 5241 IAW VASRD §4.71a.  In the matter of the chronic subjective low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  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 prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5241	30%	
Chronic Subjective Low Back Pain	5242	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140102, 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 XXXXXXXXXXXXXXXXXX, AR20160005438 (PD201400366)

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 deceased individual named in the subject line above to re-characterize 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:

Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA