RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00767
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040302

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty O-3 (Signal Officer) medically separated for neck and low back pain.  The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent U3, L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic neck pain secondary to degenerative disc disease and status post C6-7 fusion” and “low back pain,” conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other medically acceptable conditions (left shoulder and arm pain secondary to neck pain and right knee pain) for PEB adjudication.  The Informal PEB adjudicated “chronic neck pain and restricted cervical range of motion” as unfitting rated 20% and “chronic low back pain without neural compression” as unfitting rated 0% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  Her conditions continue to worsen and negatively impact her daily activities.  Her 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 20031117	VA* - (~2 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain and Restricted Cervical Range of Motion	5241	20%	S/P Stabilization Procedure with C6-7 Fusion for Jumped Facet and Degenerative Disc Disease at C4-5	5235	30%	20040108	
Chronic Low Back Pain without Neural Compression	5237	0%	T11-12 Disc Herniation	5235	40%		
Left Shoulder and Arm Pain Secondary to Neck Pain	Not Unfitting 
	Tendonitis, Left Shoulder	5201-5024	10%		
Other x 1 (Not In Scope)	Other x 7 	
RATING:  20%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20040413 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Neck Pain Condition.  The service treatment record (STR) documents that the CI sustained injuries in a fall during air assault training.  The 5 February 1997 emergency department encounter documented the CI fell in the air assault obstacle course.  She fell 10 feet on her buttocks and complained of back and neck pain.  With sitting up, she got pain and tingling down left arm.  The CI denied loss of consciousness, incontinence of bowel or bladder, or weakness.  She was offered hospital admission but refused and was discharged with a hard cervical collar and pain medications (Tylox).  The CI removed the cervical collar and awoke with neck pain.  She had associated left arm numbness, radiating into the first three fingers of her left hand, and returned to the hospital.  The 6 February 1997 cervical spine CT showed a left C7 superior articular facet fracture, a left C6-7 jumped facet, a right C6-7 subluxed (incomplete or partial dislocation) facet, and a congenital (inborn) anomaly of incomplete segmentation of C5 and C6.  On 7 February 1997, the CI was transferred to a University Hospital and placed in traction to attempt to reduce her jumped facet.  She had no neurologic deficits with the exception of slight weakness of the left upper extremity and possibly some change in sensation at the level of C7.  On 11 February 1997, the CI underwent an open reduction of left C6-7 jumped facet with posterior cervical fusion with lateral mass plates.  The 23 October 2002 cervical spine MRI showed post-operative changes and was non-diagnostic at C4 through T1 secondary hardware artifact.  At the 11 April 2003 neurosurgery evaluation, motor and sensory function was intact.  The impression listed chronic posterior neck pain status post cervical fusion at C6-7.  At the 3 June 2003 PT encounter the CI reported improved mobility and flexibility but complained of persistent, fairly constant 3-4/10 neck pain.  She no longer complained of pain to the right scapular region.  The exam showed tight and tender C3-5 (R>L) and cervical paraspinals/levator scapulae (L>R).  Bilateral middle and lower trapezius muscles were weak (4-/5).  Active range-of-motion (AROM) was slightly decreased in bilateral side bending and rotation (L>R).  The 11 July 2003 cervical spine X-ray showed C5-C7 cervical fusion and intact surgical hardware (posterior cervical plating C6-C7).  The 18 September 2003 cervical spine range-of-motion (ROM) values by physical therapy (PT) for the MEB are listed in the chart.  The 9 October 2003 cervical spine X-ray in flexion and extension showed post-surgical changes and stable flexion and extension with normal alignment.  

The narrative summary (NARSUM) by neurosurgery, 5 months before separation, recounted the history and interventions to date.  Left upper extremity symptoms improved following her 1997 C6-7 surgery, but she had residual left shoulder pain that radiated to the left arm.  The CI complained of chronic neck pain with radiation to the left shoulder and down the posterior aspect of her left arm to the triceps and elbow.  The CI complained of headaches from her neck pain and neck pain was increased with wearing Kevlar.  She reported difficulty with activities secondary to her neck pain and left upper extremity symptoms.  She was taking an NSAID (Mobic [meloxicam]).  The physical exam revealed a well-healed posterior cervical spine incision with mild tenderness at the inferior aspect.  Cervical ROM was decreased with lateral rotation, flexion, and extension.  She had decreased sensation in the left C6-7 distribution.  Upper extremity strength (5/5) and reflexes (2+) were normal bilaterally.  The NARSUM cited the 18 September 2003 PT ROMs.  The diagnoses listed chronic neck pain secondary to degenerative disc disease and status post C6-7 fusion for jumped facet and left shoulder and arm pain secondary to neck pathology.  The neurosurgeon opined that the conditions were stable and chronic, unlikely to improve, and not expected to return to normal function.  

The General medical Compensation and Pension (C&P) exam, 2 months before separation, recounted the history and interventions to date.  The CI complained of chronic, daily neck pain and tightness.  She reported flare-ups occurring 2-3 times a week with ROM decreased by greater than 50%.  The CI denied radicular (irritation or injury of a nerve root) symptoms and had not used the neck brace recently.  The C&P exam documented a history of right arm weakness since the injury.  She was taking an NSAID (Feldene [piroxicam]).  Daily activities were limited by anything that required her to move her neck normally.  The physical exam revealed a nontender, 8 cm. posterior neck scar.  Cervical spine ROMs, performed with discomfort, are listed in the chart.  Repetitive ROM testing increased the pain without decreasing the ROM.  Upper extremity strength was right 5-/5 and left 5/5.  Upper extremity reflexes (2+) and sensation were normal bilaterally.  The diagnoses listed jumped facet C6-7 status post stabilization procedure with C6-7 fusion and right arm weakness secondary to C-spine injury.

The ROM evaluations which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

DOS 20040302
Cervical ROM
(Degrees)	MEB ~6 Mo. Pre-Sep	VA C&P ~2 Mo. Pre-Sep	
Flex (45 Normal)	20	10	
Combined (340)	150	45	
§4.71a Rating	20%	30%	

The Board directed attention to its rating recommendation based on the above evidence.  The informal PEB, 4 months before separation, rated the neck condition at 20% (VA code 5241; spinal fusion).  The PEB cited chronic pain and restricted ROM status post C6-C7 stabilization procedure with fusion.  The VA rating decision (VARD), one month after separation, rated the neck condition at 30% (5235; vertebral fracture or dislocation).  The VARD cited the C6-7 stabilization procedure, ROM, pain on motion, and increased pain on repetitive motion.  The PT ROM values in the MEB exam, 6 months before separation, were consistent with a 20% rating based upon the General Rating Formula for Diseases and Injuries of the Spine.  The ROM values in the C&P exam, 2 months before separation, were consistent with a 30% rating.  The Board agreed the most proximate source of comprehensive evidence on which to base the permanent rating recommendation is the C&P exam.  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 neck condition (5241).

Low Back Pain Condition.  The STR documents that the CI sustained injuries in a fall during air assault training.  The 5 February 1997 emergency department encounter documented the CI fell in the air assault obstacle course.  She fell 10 feet on her buttocks and complained of back and neck pain.  The 16 September 2003 lumbar spine MRI showed anterior disc herniation at T11-12 with acute kyphosis (posterior spine curvature) at the T11-12 disc.  There were no vertebral body abnormalities or spinal canal stenosis (narrowing).  The 18 September 2003 lumbosacral spine ROMs by PT for the MEB are listed in the chart.  The NARSUM recounted the history and interventions to date.  The CI complained of chronic, sharp, lower lumbar pain without radiation into the lower extremities.  Her chronic low back pain had increased over the previous year.  It interfered with activities and she was unable to do sit-ups or lift significant weight.  Low back pain increased with lying flat.  She was taking an NSAID (Mobic [meloxicam]).  The physical exam revealed no dysfunction with gait or coordination.  There was no tenderness of the lumbar spine.  Straight leg raising tests (assess sciatic nerve root compression by a herniated disc) were negative and there was no evidence of Waddells signs (psychogenic, or nonorganic, manifestations of pain).  Lower extremity strength (5/5) and reflexes (2+) were normal bilaterally and she was otherwise neurologically intact.  The NARSUM cited the 18 September 2003 PT ROMs.  The diagnoses listed low back pain.  The general medical C&P exam recounted the history and interventions to date.  The CI complained of low back pain occurring three to four times a week.  She reported flare-ups occurring once a month with ROM decreased by greater than 50%.  The pain was sharp, right-sided, and without radicular symptoms.  She had not needed any assistive device and had not had any incapacitating episodes.  She was taking an NSAID (Feldene [piroxicam]).  The physical exam revealed a normal gait.  There was no abnormal spine curvature, spine tenderness, or paraspinal muscular spasms.  Thoracolumbar spine ROMs, obtained without hip involvement, are listed in the chart.  Repetitive ROM testing increased the pain without decreasing the ROM.  Lower extremity reflexes (2+) and sensation were normal bilaterally.  The diagnoses listed T11-T12 disc herniation, documented by MRI, with chronic low back pain.  

The ROM evaluations which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

DOS 20040302
Thoracolumbar ROM
(Degrees)	MEB ~6 Mo. Pre-Sep	VA C&P ~2 Mo. Pre-Sep	
Flexion (90 Normal)	90	30	
Combined (240)	#	115	
Comment	Lumbosacral	Thoracolumbar	
§4.71a Rating	0%	40%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition at 0% (VA code 5237; lumbosacral strain).  The PEB cited chronic pain, full ROM, T11-T12 disc herniation without neural compression, and no spine deformity, radiculopathy, spasm, or altered gait.  The VARD rated the low back condition at 40% (5235; vertebral fracture or dislocation).  The VARD cited pain with flare-ups, ROM, increased pain with repetitive ROM, T11-T12 disc herniation, a normal neurologic exam, and no spasm.  The PT ROM values in the MEB exam were consistent with a 0% rating based upon the general rating formula for diseases and injuries of the spine.  The ROM values in the C&P exam were consistent with a 40% rating.  Other routes to a rating higher than the PEB’s 0% were considered, but there was no evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45; and no evidence of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  The Board agreed a 10% rating was supported based on functional loss (§4.40) or painful motion (§4.59).  The Board agreed the most proximate source of comprehensive evidence on which to base the permanent rating recommendation is the C&P exam performed 2 months before separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the neck condition (5237).

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left shoulder and arm pain condition 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.

Contended Left Shoulder and Arm Pain Condition.  The STR documents that the CI experienced neck, shoulder, and back pain secondary to a fall during air assault training.  A 24 September 2003 left shoulder X-ray was unremarkable.  At the 24 September 2003 MEB consultation by orthopedic surgery, the CI complained of shoulder pain since her neck injury and subsequent C-spine fusion in 1997.  She reported left arm tingling sensations and pain located at the trapezius muscle since the injury.  The CI denied difficulty with overhead activities and was able to perform her job and all activities of daily living.  The focused left shoulder physical exam revealed no deformity or atrophy and strength (5/5) was normal globally.  The trapezius muscle was tender but the anterior and posterior shoulder and acromioclavicular joint were not tender.  Her ROM was from 0 to approximately 140 degrees on forward flexion and abduction without pain on passive motion.  Bilateral external rotation was to 40 degrees and internal rotation was to the back to T6.  Provocative diagnostic tests were negative.  The diagnosis listed left shoulder pain secondary to C-spine and neck pathology.  The examiner reported the CI was able to do her duties functionally with her left shoulder and her condition met retention criteria.  At the general medical C&P exam the CI complained of left trapezius pain that made overhead work difficult.  She denied any flare-ups and did not need any assistive device.  There was no history of direct trauma to the left shoulder.  Left shoulder ROMs, performed with discomfort, were flexion to 120, extension to 20, abduction to 120, external rotation to 90, and internal rotation to 90 degrees.  Repetitive ROM testing increased the discomfort without decreasing the ROM.  The diagnosis listed left shoulder tendinitis.  While the left shoulder and arm pain condition was implicated in the commander’s statement, it was not profiled, met retention standards by the MEB, and was considered to be not unfitting by the PEB.  The contended condition was reviewed and considered by the Board.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  The Board determined that the preponderance of evidence indicated that this condition was not unfitting for continued military service.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determinations for the left shoulder and arm pain condition and so no additional disability ratings 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 neck pain condition, the Board unanimously recommends a disability rating of 30%, coded 5241 IAW VASRD §4.71a.  In the matter of the low back pain condition, the Board unanimously recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended left shoulder and arm pain condition, 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.  

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 her prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Neck Pain and Restricted Cervical Range of Motion	5241	30%	
Chronic Low Back Pain W/O Neural Compression, With Full Range of Motion	5237	40%	
COMBINED	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140130, 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 XXXXXXXXXXXXXXXXXXXXXXX, AR20160002387 (PD201400767)

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 60% 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 60% 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