RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00480
BRANCH OF SERVICE:  Army	BOARD DATE:  20150318
SEPARATION DATE:  20070316

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Indirect Fire Infantry) medically separated for chronic neck pain and chronic low back pain (LBP).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3U3L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic neck pain and chronic LBP conditions, characterized as “cervical spondylosis status post anterior discectomy and fusion” and “lumbar spondylosis, L5-S1” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (obstructive sleep apnea) for PEB adjudication.  The Informal PEB adjudicated “chronic neck pain status post C5-6 anterior discectomy and fusion; without neurologic deficit” and “chronic low back pain secondary to degenerative disc disease; without neurologic deficit” as unfitting, rated 10% and 10% respectively with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining medically unacceptable condition was determined to be not unfitting by the PEB.  The CI appealed to the Formal PEB (FPEB), which affirmed the PEB findings and ratings.

CI CONTENTION:  “Neck: Severity underrated. Low Back: Severity underrated. Sleep apnea: Should’ve been on PEB (leadership lied about regulation) Due to taxes and other Factors, I reserve the right to Keep my disability with VA if I deem more beneficial”

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:

Service FPEB – Dated 20070207	VA - (7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain Status Post C5-6 Anterior Discectomy and Fusion; Without Neurologic Deficit	5241	10%	Degenerative Disc Disease, Cervical Spine, Status Post C5,
C6 Anterior Diskectomy With Allograft Fusion And
Instrumentation	5237	10%	20070711	
Chronic Low Back Pain Secondary To Degenerative Disc Disease; Without
Neurologic Deficit	5299-5242	10%	Degenerative Disc Disease, Lumbar Spine	5237	10%	20070711	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20070711	
Other x 0 (Not In Scope)	Other x 9	
Combined:  20%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20071012 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertion that the “Sleep apnea: Should’ve been on PEB (leadership lied about regulation).”  It is noted for the record that the Board has no jurisdiction to investigate or render an opinion in reference to the aforementioned allegation, but it may be addressed by the Board for Correction of Military/Naval Records and/or the United States judiciary system.  However, as noted above, the sleep apnea is in the scope of review and will be addressed by this Board.

Chronic Neck Pain Condition.  The CI had a 3-month history of neck pain with occasional radiation to the left shoulder with minimal response to a muscle relaxant in April 2006.  An MRI, performed on 10 April 2006, revealed at C5-6 a broad based disc protrusion with frank effacement and pancaking of the spinal cord and severe left foraminal (a nerve passageway) stenosis; and at C4-5 there was a minimal broad based disc protrusion.  A neurosurgical consultation noted the CI’s neck pain began when he extended his neck while swimming.  Because the CI had refractory neck and left arm pain, surgery consisting of a C5-C6 anterior cervical discectomy and fusion was performed on 28 April 2006.  Orthopedic evaluation on 8 August 2006 indicated the CI’s cervical spine had a normal appearance with a healing surgical incision, was not tender, and had no pain on motion.  A repeat MRI dated 30 October 2006 was performed for continued left arm paresthesias and pain mainly near the C6-C7 spinous processes extending down the scapula.  The findings revealed at C5-C6 a prior anterior metallic fusion and a left paracentral protrusion mostly spondylotic (arthritic) abutting or near abutting the cord.  There were also at C4-C5 and C6-C7 protrusions nearly abutting the cord.  Follow-up with neurosurgery on 16 January 2007 revealed the CI reported constant gnawing/dull pain and cramping neck pain, which he rated 3-6/10 in severity and was made worse after head turning and position changes.  His gait and station were normal and the remainder of the examination was unremarkable.  A repeat MRI dated 29 January 2007 revealed a reversal of normal cervical lordotic curvature and at C5-C6, a prior metallic fusion, and a left paracentral bony protrusion abutting or nearly abutting the cord with subtle myelomalacia (softening of the spinal cord) and minimal cord atrophic changes.  At C4-C5 and C6-C7 there was minimal disk protrusion and no frank neural encroachment.  Electrodiagnostic studies were performed on 4 May 2007 for cervical radiculopathy. The findings were consistent with a chronic C5, C6 and possibly C7 radiculopathy.

At the MEB examination dated 7 August 2006 the CI reported some numbness from a slipped disc in the neck.  The MEB physical examiner noted a 10 cm horizontal scar of the anterior neck and decreased range-of-motion (ROM) of extension and flexion of the neck with no motor or sensory deficits.  The MEB narrative summary (NARSUM) dated 15 August 2006 indicated the CI had some neck pain while undergoing therapy for his lower back.  He had a well healed surgical scar of the anterior (front) neck.  Motor evaluation of his upper extremities was 5/5 and sensation was intact to light touch.  Reflexes were normal at the elbows and there was no Hoffman’s sign (evidence of an upper motor neuron disease).  The CI had tenderness to palpation at his cervical spine with mild paraspinal spasm.  The final diagnosis was cervical spondylosis status post anterior discectomy and fusion.  The commander’s statement dated 7 August 2006 indicated the CI was treated for a neck injury.  His MOS required heavy lifting and wearing protective gear that was strenuous at times; however, he could not lift more than 30 pounds.  A permanent U3 profile was issued on 5 December 2006 for chronic neck pain, but the limitations of military functional activities and physical training testing were also related to the CI’s chronic LBP discussed below.

At the VA Compensation and Pension (C&P) examination dated 11 July 2007, performed 4 months after separation, the right hand dominant CI stated that in March 2005 while he was home on convalescent leave, he was swimming and developed spontaneous neck and right upper extremity pain.  He was initially treated conservatively and underwent surgery in April 2006 as noted above.  An MRI on 29 January 2007 revealed a C5/6 fusion with mild central cord stenosis; and C4/5 mild right foraminal narrowing with subtle myelomalacia (softening of the spinal cord).  He complained of 4-7/10 mechanical neck pain and denied any episodes of flare-up pain, but did experience left C6 radicular pain and paresthesias.  The examiner noted the CI walked freely without an antalgic gait and used no cane, brace, splint or other orthopedic assistive device.  There was no tenderness of cervical spinous processes, but there was some tenderness of the right upper trapezius muscle.  Sensation was intact to light touch and motor strength was 5/5 for the upper extremities bilaterally.  Reflexes were physiologic and symmetric.  The Spurling sign (to assess nerve root pain) was negative bilaterally.  There was a well healed transverse right sided 6 cm anterior cervical fusion incision scar present, which was barely visible, well healed, nontender without signs of inflammation, infection, depression or keloid formation.

The 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)	
PT ~ 9 Mo. Pre-Sep
	PT ~ 2 Mo. Pre-Sep
	VA C&P ~ 4 Mo. Post-Sep
	
Flex (45 Normal)	35(30,30,35)	20	30	
Extension (45)	15(15,17,18)	15	45	
Combined (340)	225	205	305	
Comment	Pain limited flexion and extension; localized tenderness	Pain and spasm on flexion; palpable tenderness bilateral upper trapezius-mild; bilateral sub occipital spasm-mild to moderate	*Post repetitive motion; pain on the extremes of motion; DeLuca negative	
§4.71a Rating	10%	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB assigned a rating of 10% using code 5241 (Spinal fusion) for chronic neck pain status post C5-6 anterior discectomy and fusion.  The VA assigned a 10% rating using code 5237 (Cervical strain) for cervical spine degenerative disc disease (DDD) status after surgery.  Based on both the MEB and VA examinations proximate to separation the CI warrants a 20% rating based on the cervical flexion of 30 degrees and a reversal of the cervical lordotic curve noted on an MRI.  The VA rating of 10% might have been applied based a flexion measurement greater than 30 degrees.  However, the VASRD for a 20% rating clearly states: “forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees.”  Additionally, the VA calculation of the combined cervical ROM at 215 degrees is not in concert with the arithmetic total of its measured ROMs; however either measurement would rate 10%, but is overcome by the rating based on 30 degrees of flexion at 20%.  The Board considered whether an additional rating could be recommended under a peripheral nerve code for the associated cervical radiculopathy at separation.  Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine conditions.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no apparent functional implications, although the CI did have left elbow and bilateral wrist nerve entrapments beyond the scope of review; and, the motor impairment was either intermittent or relatively minor and cannot be linked to significant functional consequence.  Thus, there is thus no significant evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; and, the Board cannot support a recommendation for an additional disability rating 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 20% for the chronic neck pain condition.

Chronic Low Back Pain Condition.  The CI indicated his lower back symptoms began while carrying his pistol belt and M16 with flak jacket as an MP 2 months after he was on active duty in March 2003, although a note dated 14 April 2005 indicated his LBP had been ongoing for 12 years.  An MRI in December 2004 revealed Scheuermann’s (congenital kyphosis-bending forward) disease of the lower dorsal spine and an unremarkable lumbar examination.  A lumbar X-ray series was normal in June 2005.  The CI had physical therapy, spinal manipulation and six epidural steroid injections in his lumbar area from June 2005 through January 2006.  An MRI performed on 10 April 2006 for LBP and a right sided radiculopathy and occasional left sided radiculopathy revealed a diffuse disc bulge at L4-5, mild central canal narrowing, mild facet arthropathy (arthritic-type changes), and mild congenital narrowing of the lumbar spine.  Orthopedic evaluation on 8 August 2006 noted a negative straight leg raising test (to determine nerve root irritation) and no sensory abnormalities.  Motor function, strength, and reflexes were normal.  A functional capacity evaluation was performed on 30 March 2006, but the CI elected not to perform activities because he feared symptom exacerbation later that day or the day after.  The commander’s statement dated 7 August 2006 indicated the CI was treated for a lower back injury.  His duties required heavy lifting and were very strenuous, but he was limited from lifting no more than 30 pounds.  At the MEB examination dated 7 August 2006, the CI reported arthritis in the spine and chronic LBP.  The MEB NARSUM dated 15 August 2006 noted the CI was originally evaluated in 2004 for his LBP, which started in March 2003, and for which the CI had non-operative management.  Examination revealed straight leg raise testing caused LBP bilaterally.  Motor strength was normal; sensation was intact to light touch; and lower extremity reflexes were normal.  He had tenderness to palpation at his lumbar spine with mild paraspinal spasm.  The examiner’s final diagnosis was lumbar spondylosis, L5-S1.  A permanent U3 profile was issued on 5 December 2006 for chronic back, but the limitations of military functional activities and physical training testing also related to the CI’s chronic neck pain discussed above.

At the VA C&P examination dated 11 July 2007, the CI reported no acute injury, but experienced mechanical back pain in March 2003 while on active duty.  Over the prior year he experienced daily 4/10 LBP and was treated conservatively.  Flare-ups occurred with increased physical activity; and he complained that his left leg would “fall asleep.”  He stated he had some problems with stool incontinence and soiling of his underwear following defecation, but denied other symptoms of the cauda equina syndrome (saddle anesthesia, weakness of the legs, gait disturbance, and absence of ankle reflexes).  Examination revealed a normal spinal curvature.  There was no spinous process tenderness, although there was some tenderness of the right sided lumbar paravertebral musculature without spasm; and there was no sacroiliac joint or sciatic notch tenderness.  Neurologic examination was unremarkable; and perirectal sensation to light touch was intact and rectal sphincter tone was normal.

The 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)	
PT ~ 9 Mo. Pre-Sep
	PT ~ 2 Mo. Pre-Sep
	VA C&P ~ 4 Mo. Post-Sep
	
Flexion (90 Normal)	85(85,85,85)	80	80/90*	
Extension (30)	25(30,30,25)	30	30	
Combined (240)	220	210	235	
Comment	Muscle tension limited ROM	Lower lumbar musculature mildly painful; no evident gait deviation.	*At the end of three repetitions; pain on the extremes of motion; DeLuca negative	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB assigned a rating of 10% using code 5299-5242 (Degenerative arthritis of the spine) for chronic low back pain secondary to DDD.  The VA assigned a rating of 10% using code 5237 (Lumbosacral strain) for DDD of the lumbar spine.  The Board must establish a functional impairment linked to fitness in order to recommend a separate rating for a radiculopathy associated with unfitting spine conditions; a threshold clearly not reached by the evidence in this case.  Therefore, the Board concluded that a lumbar radiculopathy could not be recommended for additional disability rating.  The Board then sought a route to a higher rating, but was unable to find one in view of the measured ROMs rating no more than 10% and in the absence of incapacitating episodes.  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 LBP condition.

Contended PEB Condition-Sleep Apnea.  The Board’s main charge is to assess the fairness of the PEB’s determination that sleep apnea was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The sleep apnea condition was profiled with the caveats that the CI “needs access to electricity to use CPAP machine every night. Should not drive government vehicles when sleepy.”  The commander’s statement indicated the CI was being treated for sleep apnea, but his performance limitations were more closely related to his neck and back pain, but the sleep apnea was judged to fail retention standards by the MEB.  However, an MEB addendum dated 17 November 2006 indicated that since continuous positive airway pressure was instituted, the CI reported control of the symptoms of snoring, witnessed apneas, and daytime sleepiness, which were the source of his referral; and a Memorandum for the President, PEB indicated that the sleep apnea impairment for social/industrial capacity was mild.  An after separation VA C&P examination on 11 July 2007, the CI did not complain of any daytime sleepiness, did not fall asleep at work or while driving, but did have some difficulty sleeping because of his cervical spine pain unrelated to sleep apnea.  The aforementioned details were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the sleep apnea significantly interfered with satisfactory duty performance; and it would not by itself prevent deployment as long as there was a reliable source of electricity, which has been the case in deployed environments.  However, the Board noted that the CI’s neck and back conditions either separately or taken together would preclude deployment thereby making the issue of deployment related to sleep apnea moot.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the sleep apnea contended condition, and so no additional disability rating is 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.  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, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the chronic LBP condition the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication.  In the matter of the contended sleep apnea condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Neck Pain	5241	20%	
Low Back Pain	5299-5242	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131225, 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 XXXXXXXXXXXXXXXXXXXX, AR20150013221 (PD201400480)

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] [Reserve retirement].

	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