RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00665
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Unit Supply Specialist, medically for “chronic low back pain without neurologic abnormality” and “chronic neck pain secondary to facet hypertrophy,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends all PEB not unfitting conditions are attributed to the Gulf War.  The CI’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 Physical Evaluation Board (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 based upon a 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 - 20061012	VARD - 20070725	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain without Neurologic Abnormality	5237	10%	Chronic Lumbar Spine Strain, Degenerative Disc Disease
with Discogenic L5 Neuritis	5237-5243	20%	20070416	
Chronic Neck Pain…	5299-5242	10%	Chronic Cervical Spine Strain And Degenerative Disc Disease	5237-5243	30%	20070416	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20070416	
Post-Traumatic Stress Disorder	Not Unfitting	Posttraumatic Stress Disorder…	9411	30%	20070329	
Hypertension	Not Unfitting	Hypertension	7101	10%	20070416	
Elevated Serum Lipids	Not Unfitting	No VA Placement	
Pes Planus	Not Unfitting	Bilateral Pes Planus	5276	0%	20070416	
COMBINED RATING:  20%	COMBINED RATING FOR ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 1998 when he was treated for sciatica and low back pain.  He was later diagnosed with L4-5 and L5-S1 disc bulges confirmed with diagnostic imagining.  Despite conservative treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for an MEB.  The MEB forwarded “chronic low back pain” for PEB adjudication.  

At the MEB examination (recorded on a DD Form 2808) dated in January 2006, 12 months before separation, the CI reported low back pain.  The examination revealed tenderness and limited painful range of motion (ROM) with forward flexions of 90 degrees (normal 90) and combined ROM of 230 degrees (normal 240).  

The NARSUM, dated in July 2006, 7 months before separation, delineated the CI’s history of back pain and indicated the CI was taking daily narcotic pain medication.  The NARSUM referenced “official goniometry performed by Physical Therapy (PT).”  That PT examination in March 2006, 9 months before separation revealed painful ROM with forward flexion of 60 degrees and combined ROM of 180.  The CI received two electrodiagnostic studies proximal to the MEB process.  The May 2005 examination was normal and the June 2006 examination was positive for lumbar nerve root irritability at the L5-S1 level on the left side without any active radiculopathy.  During an MEB PT formal ROM evaluation in October 2006, 4 months before separation, the examination revealed painful ROM with forward flexion of 40 degrees and combined ROM of 135 degrees.   

At the VA Compensation and Pension (C&P) examination in April 2007, 3 months after separation, the CI reported his back was injured in 1992 when a wall locker struck his lower back.  The examination revealed spinal tenderness, muscles spasms that did not result in abnormal antalgic gait or spinal contour.  He had painful ROM with forward flexion of 40 degrees and combined ROM 110.  The CI did exhibit motor strength weakness in his bilateral upper and lower extremities, as well as impaired sensory testing.  The VA referenced the two EMG studies documented above.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating coded 5237 (lumbosacral strain), citing positive tenderness and ROM limited by pain.  This was likely application of AR 635-40, B29 (in effect at the time) which did not consider pain-limited joint motion a basis for rating and aligned with the Army board for Correction of Military Records (ABCMR’s) Advisory Opinion comment of “10 percent rating based on no demonstrable mechanical ROM limitation (See AR 635-40, para B-29e).”  

The VA assigned a 20% rating analogously coded 5299-5243 (intervertebral disc syndrome) based on the VA C&P examination 3 months after separation, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.  

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) documented by the two physical therapy MEB evaluations, and the VA examination proximate to separation.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to bilateral lower extremity radiculopathy.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a; and, there was no objective evidence of either motor or sensory deficits that would interfere with duty.  There was thus no evidence of significant functional impairment from the associated radiculopathy, and the Board could not support a recommendation for rating on this basis.  

After due deliberation, in consideration of all the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic low back pain condition, coded 5237.  

Chronic Neck Pain.  According to the STR and MEB NARSUM, the CI was diagnosed with cervicalgia, mild C6-7 facet arthropathy and disc bulge confirmed with diagnostic imagining.  Despite conservative treatment, the neck condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for an MEB.  The MEB forwarded cervicalgia for PEB adjudication.  

At the MEB examination (recorded on a DD Form 2808) dated January 2006, 12 months before separation, the CI reported low back pain.  The examination revealed ROM with forward flexion greater than 45 degrees (normal 45); however an exact combined ROM could not be totaled.  

The NARSUM, dated July 2006, 7 months before separation, delineated the CI’s history of neck pain and indicated the CI was taking daily narcotic pain medication.  The NARSUM referenced official goniometry performed by PT.  That PT examination in March 2006, 9 months before separation revealed painful ROM with flexion of 35 degrees and combined ROM of 180 degrees.
During an MEB PT examination in October 2006, 4 months before separation, the examination revealed painful ROM with flexion of 35 degrees and combined ROM of155 degrees.   

At the VA C&P examination in April 2007, 3 months after separation, the CI reported neck pain.  The examination revealed cervical spinal tenderness and an antalgic gait.  There was painful ROM with flexion of 10 degrees and combined ROM of 80 degrees.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating analogously coded 5299-5242 (degenerative arthritis of the spine), citing positive tenderness and ROM limited by pain.  This was likely application of AR 635-40, B29e (in effect at the time) which did not consider pain-limited joint motion a basis for rating and aligned with the ABCMR’s Advisory Opinion comment of “10 percent rating based on no demonstrable mechanical ROM limitation (See AR 635-40, para B-29e).”  The VA assigned a 30% rating analogously coded 5299-5243 (intervertebral disc syndrome) based on the VA C&P examination 3 months after separation, citing forward flexion of the cervical spine of 15 degrees or less.  

The Board noted the last two PT ROM evaluations charted above supported a 20% rating for limitation of combined ROM while the VA ROM values supported a 30% rating for forward flexion.  The Board determined that the two corroborating PT examinations had greater probative value because they reflected the totality of the record which supported a 20% cervical spine at separation.  The Board agreed that a 20% rating, but no higher, was justified for combined ROM not greater than 170 degrees reported on the goniometric PT examinations proximate to separation.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment for upper extremities which would provide for additional rating.  

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, coded 5299-5242.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obstructive sleep apnea (OSA), posttraumatic stress disorder (PTSD), hypertension, elevated serum lipids, and pes planus were not unfitting.  The OSA condition was profiled with restriction of “unable to deploy to austere environment” and adjudged to not meet retention standards.  OSA or excessive day time sleepiness was not mentioned in the commander’s statement.  PTSD, hypertension, elevated serum lipids, and pes planus were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  There was no performance based evidence from the record that these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 contended OSA, PTSD, hypertension, elevated serum lipids, and pes planus conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the neck condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the contended OSA, PTSD, hypertension, elevated serum lipids, and pes planus conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5237	20%	
Neck Pain	5299-5242	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131121, 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, AR2016001 0336 (PD201400665)

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 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