RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	      CASE:  PD-2014-00612	
BRANCH OF SERVICE:  Army  	      SEPARATION DATE:  20071114

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E-4, Infantryman, medically separated for “chronic thoracolumbar pain without neurologic abnormality” and “chronic neck pain without neurologic deficit”, rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI elaborated no specific contention in his application.  

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 - 20070906	VARD - 20080619  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracolumbar Pain w/o Neurologic Abnormality	5299-5237	10%	Lumbosacral Strain	5237	0%	20080606	
Neck Pain w/o Neurologic Deficit	5299-5237	10%	Cervical Strain	5237	10%	20080606	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:   

Back Pain and Neck Pain.  In January 2005, while deployed overseas, this CI was injured by an improvised explosive device (IED).  After that incident, he was having back pain and neck pain.  The pain was treated with medication (Ibuprofen), and the CI was able to complete the deployment.  On return, he received chiropractic manipulation and physical therapy (PT).  However, in spite of all treatment efforts, his pain persisted and a Medical Evaluation Board (MEB) was initiated.  The MEB narrative summary (NARSUM) was dated 21 August 2007.  The CI reported that his pain was worse in the morning, and improved with movement and stretching.  He had pain with any physical exertion, and this limited his ability to function in a military setting.  At the MEB physical examination (PE), gait and stance showed normal heel and toe walking, with no antalgic gait.  There was tenderness to palpation (TTP) of the cervical spine and thoracic spine.  Abnormal lordosis was noted, with spasm.  Straight leg raise (SLR) was negative, and neurologic exam was normal.

The CI was medically separated on 14 November 2007.  Eleven weeks later, on 31 January 2008, he had a VA Compensation and Pension (C&P) examination.  He reported that his back pain was constant, and was worse at night.  Prolonged sitting or standing would exacerbate the pain.  The back pain did not radiate.  He also reported neck pain and neck stiffness.  Sometimes it was hard to position his neck to get comfortable.  On PE, he was in no apparent distress and gait was normal.  A specific PE of the back and spine was not recorded at that examination.  X-rays of the cervical and lumbosacral spine were normal.  For diagnoses, the examiner wrote “Chronic lumbosacral strain, residual of injury,” and “Chronic cervical strain, residual of injury.”  In June 2008, spinal ROM was measured and recorded.  

The Board carefully reviewed all available information, and directed attention to its rating recommendation based on the evidence.  With regard to the ROM measurements described above, the July 2007 measurements were just 4 months before separation.  Thoracolumbar forward flexion was only 45 degrees. IAW the VA Schedule for Rating Disabilities (VASRD) §4.71a, General Rating Formula for Diseases and Injuries of the Spine, a 20% disability rating is warranted when thoracolumbar forward flexion is greater than 30 degrees, but not greater than 60 degrees.  The Board also noted that the August 2007 NARSUM examination was just 3 months before separation.  At that exam, the examining physician wrote:  “Abnormal lordosis noted with spasm.”  IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, a 20% disability rating is warranted when there is muscle spasm severe enough to result in abnormal spinal contour.  Therefore, based on the evidence, the Board determined that a 20% rating was appropriate.  The Board tried to find a path to a higher rating.  There was no path to a higher rating, because the record did not show sufficient evidence of a seriously disabling back condition or spinal abnormality which would justify a higher rating.    

The Board also considered the matter of lumbar radiculopathy.  After review of all the information in the record, there was insufficient evidence of a clinically significant lumbar radiculopathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting lumbar 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 recommends a 20% disability rating for the chronic thoracolumbar pain.  

The Board noted that both measurements of cervical ROM showed a combined ROM greater than 170 degrees, but not greater than 335 degrees.  IAW the VASRD §4.71a, a 10% disability rating is warranted when combined cervical ROM is greater than 170 degrees, but not greater than 335 degrees.  Therefore, the Board determined that a 10% disability rating was appropriate.  There was no path to a higher rating, since the record did not show sufficient evidence of a seriously disabling neck condition or spinal abnormality which would justify a higher rating. 

The Board also considered the matter of cervical radiculopathy.  After review of all the information in the record, there was insufficient evidence of a clinically significant cervical radiculopathy 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 of the Chronic neck pain condition.  

BOARD FINDINGS:  In the matter of the chronic thoracolumbar pain, without neurologic abnormality, and IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 20%.  In the matter of the chronic neck pain, without neurologic deficit, 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.  The Board, therefore, recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic thoracolumbar pain, without neurologic abnormality	5299-5237	20%	
Chronic neck pain, without neurologic deficit	5299-5237	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140114, 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, AR20160005544 (PD201400612)

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 re-characterize 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