RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00842
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090114

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Food Service Operations, medically separated by the Informal Physical Evaluation Board for “degenerative arthritis, cervical spine” and “degenerative arthritis, thoracolumbar spine” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  He was given a higher rating for his conditions by the VA.  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 – 20080918	VARD – 20090610 and 20090803	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis, Cervical Spine	5242	10%	Cervical Spine	5237	10%	20090527	
Degenerative Arthritis, Thoracolumbar Spine	5242	10%	Lumbosacral Spine	5237	20%	20090527	
Irritable Bowel Syndrome	Not Unfitting	Irritable Bowel Syndrome	7319	0%	20090527	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Degenerative Arthritis, Cervical Spine.  According to service treatment records (STR) and the MEB narrative summary (NARSUM), the CI’s neck condition began in September 2004.  The CI denied any specific injury or trauma.  Radiographic studies showed uncovertebral hypertrophy (bone spur - degenerative changes).  There was no surgical indication.  Despite treatment, the CI’s neck condition could not be adequately rehabilitated to meet the physical requirements of his military specialty and so he was referred for a Medical Evaluation Board (MEB).

At the MEB examination (recorded on DD Forms 2807 and 2808) dated April 2008, 10 months prior to separation, the CI reported neck pain aggravated by wearing Kevlar and numbness in his arms if he sat, stood, or laid down too long.  Physical exam showed no tenderness or spasms, with normal motor strength in the bilateral upper extremities.  Reflexes were normal.  There was pain limited range-of-motion (ROM) as noted in the chart above.  At the time of the physical therapy clinic appointment for MEB ROM testing on 21 April 2008, the CI reported neck and back pain with prolonged standing, sitting, running, jumping, walking, twisting, bending or lifting and that during flare ups he was unable to work.  He also reported tingling in his arms at night.  On examination, the CI had decreased ROM and painful motion as indicated in the chart above.  The MEB NARSUM exam on 21 April 2009 (9 months prior to separation) noted complaints of neck and back pain with prolonged sitting, standing, lifting, walking and cooking.  Physical exam showed no spasm or tenderness, and normal sensation and strength testing.  

At the VA Compensation and Pension (C&P) examination on 27 May 2009, performed 4 months after separation, the examiner recorded intermittent pain with remission.  On examination the CI was noted to have normal peripheral nerve testing.  There was limited ROM without pain as noted in the chart above.  At the VA Compensation and Pension (C&P) examination on 14 July 2009, 6 months after separation, the examiner recorded daily severe neck pain radiating into the mid back and head.  Physical exam showed no abnormal spinal curvature, spasm, guarding, tenderness, painful motion, or limitation of motion as indicated in the chart above.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5242 code (degenerative arthritis of the spine), citing limitation of combined motion.  The VA also assigned a 10% rating using the 5237 code (cervical strain) for limitation of forward flexion.  The first post-separation VA exam ROMs were incomplete (missing left and right rotations), and combined ROM could not be precisely computed for rating.  The Board adjudged that the combined ROM was almost certainly greater than 170 degrees (greater than 25 degrees combined rotations) as every other exam documented at least 40 degrees for each rotation).  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion greater than 30 degrees but not greater than 40 degrees or combined ROM greater than 170 degrees but not greater than 335 degrees reported on the physical therapy and VA exams.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  

There was no associated radiculopathy for separate peripheral nerve rating.  Although the CI experienced radiating pain and episodic paresthesias (numbness and/or tingling), there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  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 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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the neck condition.  

Degenerative Arthritis, Thoracolumbar Spine.  According to STR and the MEB NARSUM, the CI’s back condition began in September 2004.  The CI denied any specific injury or trauma.  Radiographic studies showed degenerative disc disease.  There was no surgical indication.  Despite treatment, the CI’s back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty.
At the MEB examination (recorded on DD Forms 2807 and 2808) dated 1 April 2008, 9 months prior to separation, the CI reported back pain that radiated to the mid and upper back with occasional spasms and stiffness associated with sitting, standing, or lying down for prolonged periods.  Physical exam showed positive tenderness, no spasms, and normal motor strength in the bilateral lower extremities.  Testing for radicular signs was negative.  There was decreased ROM due to pain in all planes as noted in the chart above.  At the time of the physical therapy clinic appointment for MEB ROM testing on 21 April 2008, the CI reported neck and back pain with prolonged standing, sitting, running, jumping, walking, twisting, bending or lifting and that during flare-ups he is unable to work.  He also reported tingling in his legs at night.  On examination the CI had decreased extension and painful motion.  The MEB NARSUM exam on 21 April 2009 (9 months prior to separation) noted complaints of neck and back pain with prolonged sitting, standing, lifting, walking and cooking.  Physical exam showed no spasm or tenderness, and normal sensation and good muscle strength.  Most of the clinical treatment notes from the year prior to separation documented muscle spasm without evidence of abnormal gait or spinal contour, and with ROMs noted as either “decreased” or “full.”  

At the VA Compensation and Pension (C&P) examination on 27 May 2009, 4 months after separation, the examiner recorded intermittent pain with remission.  On examination the CI was noted to have normal peripheral nerve testing.  Testing for radicular signs was negative.  There was limited flexion and extension with pain.  At the VA Compensation and Pension (C&P) examination on 14 July 2009, 6 months after separation, the examiner recorded daily back pain radiating into the legs.  Physical exam showed normal motor strength, no abnormal gait or spinal curvature and no spasm or guarding.  There was normal reflex and sensory testing and testing for radicular signs was negative.  There was positive tenderness, painful motion, and limitation of motion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5242 code (degenerative arthritis of the spine), citing limitation of combined motion.  The VA assigned a 20% rating using the 5237 code (lumbosacral strain) for limitation of forward flexion based on the first post-separation VA exam.  There is a disparity between examinations with implications for the Board's rating recommendation.  The Board deliberated the probative value of these conflicting evaluations, and carefully reviewed the entire file for corroborating evidence.  All of the evidence prior to separation approximated the disability level noted at the PT examination (10%), with most notes indicating muscle spasm without abnormal gait or spinal contour.  The first post-separation VA exam, although closer to the date of separation was the single exam proximate to separation that indicated more limited ROMs, and was followed by a later VA exam that more closely aligned with the exams in the STR.  The Board consensus was that the Service exams had the highest probative value for rating at separation.  The Board agreed that a 10% rating, but no higher, was justified for limitation of combined ROM greater than 120 degrees but not greater than 235 degrees as reported on the physical therapy exam and the 14 July 2008 VA exam.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  

There was no associated radiculopathy for separate peripheral nerve rating.  Although the CI experienced radiating pain and episodic paresthesias, there was no objective evidence of a radiculopathy or functional impairment with a direct impact on fitness.  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 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 majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that irritable bowel syndrome (IBS) was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The IBS condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  IBS 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.  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 contended IBS condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the neck condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the back condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  In the matter of the contended irritable bowel syndrome condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the Board’s scope of review for consideration.  
The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140220, 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, AR20160003594 (PD201400842)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA