RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01059
BRANCH OF SERVICE:  Army	BOARD DATE:  20150224
SEPARATION DATE:  20070320

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O-3 (Aviation All-Source Intelligence Officer) medically separated for back and neck pain.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3/U3 profile and referred for an Medical Evaluation Board (MEB).  The initial MEB forwarded cervical pain status post-surgery and chronic lumbar pain to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB (IPEB) adjudicated neck pain and chronic low back pain (LBP) without neurological abnormality as unfitting, rated 10% and 0% respectfully with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB returned the case to the MEB for additional medical evidence regarding neuropathy.  A second MEB added neuropathy as a medically unacceptable condition.  A Reconsideration PEB adjudicated the neuropathy as not unfitting and reaffirmed the other findings and ratings.  The CI did not concur with the Reconsideration PEB findings.  The US Army Physical Disability Agency reviewed the entire case and affirmed the PEB’s findings and ratings.  The CI made no further appeals and was then medically separated.

CI CONTENTION:  “The Medical Evaluation Board did not fully consider the entirety of all conditions which rendered the solider member unfit for continued active military service, due to the fact that the soldier member's full medical condition was not presented to PEB.”

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:

Recon IPEB – Dated 20061201	VA* - (~3 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck Pain…	5243	10%	Cervical Disc Disease…	5243	30%	20061206	
Chronic Low Back Pain…	5299-5237	0%	Degenerative Changes Lumbar Spine	5237	10%	20061206	
Neuropathy	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20070702 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Neck Condition.  The first record in evidence for neck pain was recorded at a 5 April 2005 flight medicine appointment for LBP.  The CI had a normal range-of-motion (ROM), but was tender to touch.  A magnetic resonance imaging (MRI) 3 weeks later showed multi-level disc degenerative disease (DDD) with a herniated disc at C3-4.  This was confirmed on a repeat MRI on 6 January 2006 with some effacement of the spinal cord.  He was referred to neurosurgery.  At the initial evaluation on 23 March 2006, he demonstrated a normal neurological examination and ROM.  He had failed conservative therapy and then had surgery on 19 May 2006 with a discectomy and fusion of C3 and C4.  He was not recommended for retention on active duty or in the Guard and was then entered into the MEB process.

During the DD Form 2808, Report of Medical Examination, 2 months after surgery, the CI reported numbness and tingling due to the neck condition.  The examiner noted neck spasm with ROM (maneuvers).  The final neurosurgery follow-up was on 1 September 2006, 7 months prior to separation.  The CI reported improvement in his subjective sensory changes and pain.  It was recommended that he begin physical therapy and increase his activity level.  X-rays showed good position of the repair.  The MEB narrative summary (NARSUM) was dated 6 September 2006.  The CI reported pain with moving his head and neck and weakness in his left arm.  On examination, he was noted to be well muscled and to walk with his head rigid on his shoulders.  Rotation of his neck was reduced to both the left and right.  An addendum to the NARSUM was dated 26 September 2006.  The CI reported constant neck spasms.  On examination, he had weakness of wrist flexion (C8) and elbow extension (C7) and tenderness of the neck/upper shoulder muscles.  A second addendum dated 9 October 2006 also documented these findings.

The initial VA Compensation and Pension (C&P) examination was performed 4 months prior to separation and 6 months after surgery.  The CI had begun rehabilitation 3 months earlier.  He reported that the left arm pain had resolved, that the numbness and tingling were improved, but the neck pain persisted.  He also reported bilateral hand pain.  The ROM was reduced, but repetition caused no further limitation in motion.  The neurological examination was normal other than an area of reduced sensation on the outside of the right lower leg.  The examiner referenced electrodiagnostic (EDX) studies from 19 October 2006 (not otherwise in evidence) which showed bilateral carpal tunnel syndrome, which is a problem of a peripheral nerve.  The studies of the left arm and leg were otherwise normal; the CI declined evaluation of the right side.  A second VA C&P examination for the spine was accomplished 9 months after separation and 19 months after the surgery.  Incapacitation was not documented on this or the prior C&P examination.  The Board majority determined at this point the healing would be complete and the condition considered stable.  On examination, his gait and musculature were normal.  The neurological examination was abnormal with right sided sensory impairment of the ring and little fingers.  The ROM was reduced, but improved from earlier examinations which accomplished were after surgery.  The goniometric 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
~7 Mo. Pre-Sep	PT
~6 Mo. Pre-Sep	VA C&P
~3 Mo. Pre-Sep	VA C&P
~9 Mo. Post-Sep	
Flex (45 Normal)	30	25	15	35	
Combined (340)	125	150	90	230	
Comment	Three months post-op	Four months post-op	Six months post-op	19 months post-op Painful motion	
§4.71a Rating	20%	20%	30%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition at 10% using the code 5243, intervertebral disc syndrome.  The VA, citing the prior to separation C&P examination, rated the neck at 30% also using the code 5243.  The initial VA C&P examination was 6 months after surgery and only a few months after the beginning of physical therapy and rehabilitation.  The action officer opined that the limitations evident reflected both the incomplete healing at that time as well as residual stiffness from minimal activity in the post-operative period prior to the full benefit of rehabilitation.  The second C&P examination is the most remote from the surgery of the four examinations in evidence and is, therefore, determined to have the highest probative value.  While the other examinations support a higher rating, all are within months of the surgery and thought to represent expected limitations in the post-operative period.  The second C&P examination supports a 10% rating for loss of motion or painful motion.  No route to a higher rating was found.  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 neck condition.

Back Condition. A primary care memorandum for record dated 21 September 2004 documented that the CI had injured his back the previous April.  He was seen in physical therapy on 6 January 2005 and noted to have some decrease in ROM, but a normal neurological examination.  An MRI, a week later was normal other than an incidental finding of no clinical significance.  A bone scan on 1 March 2005 was normal as well.  At a follow-up appointment in primary care on 5 April 2005, the ROM and motor examinations were normal.  A repeat MRI on 16 August 2006 showed lumbarization of the first sacral vertebra (a congenital normal variant), but was otherwise unremarkable with minimal DDD.  A neurosurgical review (below) noted mild scoliosis, but otherwise a normal study.  At the MEB examination, the CI reported a 2-year history of LBP.  The examiner recorded no specific findings for the back.  The final neurosurgery follow-up on 1 September 2006, recorded the presence of scoliosis (an abnormal curvature of the spine) which the CI stated had been previously present.  The NARSUM noted spasm and loss of lumbar curvature on examination.  The addendum dated 26 September 2006 documented decreased ROM of the back in all planes with pain as well as decreased strength in hip flexion and extension.  He kept his back rigid and walked in short steps.  The second addendum reiterated these findings.  At the initial VA C&P examination, the CI that he needed to stay in bed for a day one or two times a month secondary to the back pain.  The gait and posture were normal.  He was able to dress and undress, but appeared to be uncomfortable.  The ROM (below) was reduced, but repetition caused no further limitation in motion.  The neurological examination was normal other than an area of reduced sensation on the outside of the right lower leg.  However, the EDX studies of the left leg, from 19 October 2006, were normal.  A second VA C&P examination for the spine was accomplished 9 months after separation.  Incapacitation was not documented on this or the prior C&P examination.  The CI reported the use of a walker when his back was in spasm and also a cane.  He also endorsed abnormal sensations of the left leg.  On examination, his gait and musculature were normal.  The neurological examination was normal other than right sided sensory impairment of the ring and little fingers.  The ROM was reduced in side bend and rotation (below).  The goniometric 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 ~7 Mo. Pre-Sep	VA C&P ~4 Mo. Pre-Sep	VA C&P ~9 Mo. Post-Sep	
Flexion (90 Normal)	85	90	90	
Combined (240)	185	190	220	
Comment	--	--	Nml gait; Motion pain free	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the back condition as 5299-5237 (lumbosacral strain) and rated it 0%.  The VA also used the 5237 code, but rated the back at 10%.  The examination remote from the neck surgery showed a normal gait and no spasm.  Scoliosis was present on MRI, but was apparently a baseline finding.  The limitation in motion supports no more than a 10% rating.  The Board considered the findings, but found no route to a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the back condition coded 5237.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended neuropathy condition 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 neuropathy was not profiled or implicated in the commander’s statement.  The initial MEB did not address a neuropathy; however, the second determined that it did not meet retention standards.  The second VA C&P examination recorded a normal neurological examination except for impairment of sensation of the right 4th and 5th fingers which was not previously recorded.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that a neuropathy 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 neuropathy 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 neck condition and IAW VASRD §4.71a, the Board, by a majority vote recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  In the matter of the back condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended neuropathy conditions, 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.  The Board received additional documentation provided from the CI.  The Board determined that the new information did not change the Board’s recommendation.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Neck Pain, Status Post C3-4 Discectomy …	5243	10%	
Chronic Low Back Pain	5237	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140225, 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 XXXXXXXXXXXXXXXXX, AR20150018792 (PD201401059)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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:

CF: 
(  ) DoD PDBR
(  ) DVA

MINORITY OPINION:  Based on VASRD §4.3 (Reasonable doubt), the minority finds the CI’s neck pain condition at the time of separation supports a 30% rating versus the majority vote 10% recommendation for non-recharacterization.

There were three cervical ROM measurements taken prior to the CI’s separation; all conducted IAW §4.46 (accurate measurement).

Cervical ROM
(Degrees)	PT
~7 Mo. Pre-Sep	PT
~6 Mo. Pre-Sep	VA C&P
~3 Mo. Pre-Sep	VA C&P
~9 Mo. Post-Sep	
Flex (45 Normal)	30 =20%	25 =20%	15 = 30%	35	
Combined (340)	125	150	90	230	
Comment	Three months post-op	Four months post-op	Six months post-op	19 months post-op Painful motion	
§4.71a Rating	20%	20%	30%	10%	

The first two flexion measurements (30 and 25 degrees) listed above support a 20% cervical spine rating, while the third flexion measurement yielded 15 degrees which supports a 30% rating IAW the General Spine Rating Formula.

The minority opinion concedes that the CI was experiencing post-operative cervical healing; however, it is speculative to conclude that the CI’s 30% cervical neck disability at 3 months prior to separation had improved to a 20%, 10% or 0% level at the time of separation.  There were no other examinations prior to separation to make an objective rating distinction other than issuing a 30% rating.

Consequently, the minority places the highest probative value on the first C&P exam conducted 3 months prior to separation that utilizes objective-§4.46 (Accurate measurement) ROM evidence to support a 30% rating at the time of separation.  The second C&P exam, which supports a 10% cervical rating, was conducted 9 months after separation which may or may not (speculation) be indicative of the CI’s condition at the time of separation.

RECOMMENDATION:  The Board minority, 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 her prior medical separation:

CONDITION	VASRD CODE	RATING	
Neck Pain, Status Post C3-4 Discectomy …	5243	30%	
Chronic Low Back Pain	5237	10%	
RATING	40%