RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-01574	
BRANCH OF SERVICE:  Army 	 SEPARATION DATE:  20070412  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E4, Mortuary Affairs Specialist, medically separated for neck and back pain, rated 10% each with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends that his condition is bad.  The 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 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 –20070302	VARD - 20060905	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5243 	10%	Muscle Spasm at C5-C6…	5243	NSC	20050824	
Chronic Back Pain…	5299-5237	10%	DJD…Thoracolumbar…Spine…	5099-5021	NSC		
Other x 1 (Not In Scope)	Other x 4	
Combined:  20%	Combined:  NSC	

ANALYSIS SUMMARY:

Chronic Neck Pain Condition.  According to the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began in June 2002 when he fell against stairs while activated for annual training, though medical records indicated cervical disc herniation and complaints of neck pain as early as 1999.  Radiographic studies in 2002 showed a large cervical disc herniation with spinal canal stenosis (narrowing) with slight compression and deformity of the spinal cord.  A surgical option was discussed, but declined by the CI.  Repeat imaging studies in December 2005 showed posterior disc protrusions at C5-6 and C6-7, but without neuroforaminal impingement.

The MEB NARSUM examination on 6 July 2006 (9 months prior to separation) noted complaints of neck pain with tingling and numbness of the upper extremities.  Pain was reported by the CI as 6/10 (10 being the highest), with flare-ups to 8/10.  He could not lift more than 15 pounds or stand for more than 15 minutes, although the source of this limitation (cervical or lumbar) was not specified.  Neck pain was exacerbated by driving or reading and relieved by rest and pain medications.  Examination showed use of a cane to walk, but the reason for the cane was not cited.  Neurologic findings were normal.  The examiner rendered a diagnosis of chronic neck pain with radiculopathy.  Physical Medicine & Rehabilitation (PM&R) examination on 19 September 2006 (7 months prior to separation) showed a “limping gait on occasion.”  Upper extremity muscle strength was normal and electrodiagnostic studies performed that day showed no evidence of acute or chronic radiculopathy.  A PM&R examination on 21 December 2006 (4 months prior to separation) noted the CI was wearing a cervical collar.  There were two signs of possible non-physiologic pain.  Guarding was present but did not cause an abnormal gait or spinal contour.  Spasm was absent.  A NARSUM addendum dated 13 February 2007 indicated there had been no significant changes since the earlier examination (NARSUM dated 6 July 2006).

The Board directed attention to its rating recommendation based on the above evidence.  The VA determined the cervical spine condition was not service connected (NSC) because it existed prior to the active duty period of the injury.  The PEB assigned a 10% rating under the 5243 code (intervertebral disc syndrome), citing ROM limited by pain with localized tenderness.  Board consensus was that a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees) and for combined ROM (not greater than 170 degrees) reported on the MEB, NARSUM, and PM&R examinaitons.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula.

The Board finally deliberated if additional disability rating was justified for peripheral nerve impairment in this case.  The CI reported numbness and tingling of the upper extremities, and the NARSUM examiner rendered a diagnosis of radiculopathy.  However, the NARSUM’s neurologic findings were normal, and electrodiagnostic studies showed no radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  The Board concluded that functional impairment attributable to peripheral nerve impairment was not in evidence, and therefore cannot recommend additional rating for it.  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, coded 5243.
Chronic Back Pain.  According to the MEB NARSUM, the CI’s back condition began in June 2002 in the same incident that led to his neck condition, though records reveal complaints and treatment for low back pain as early as 1996.  Radiographic studies in January 2006 revealed mild narrowing of the spinal canal at the lower lumbar spine due to a disk bulge, but there was no disk herniation.  Despite treatment, the CI’s low back condition could not be adequately rehabilitated to meet the physical requirements of his military specialty, so he was referred for an MEB.

The MEB physical examination (recorded on DD Forms 2807 and 2808) 14 months prior to separation recorded paravertebral muscle tenderness.  There was evidence of possible nerve root irritation, but the affected side was not specified.  The examiner diagnosed chronic low back pain.  The NARSUM examination 9 months prior to separation noted complaints of pain rated 6/10, with flare-ups to 8/10 3-4 times per week.  Pain was exacerbated by sitting or standing and relieved by rest and pain medications.  He reportedly could not lift more than 15 pounds or stand for more than 15 minutes.  The CI was using a cane; however the purpose of the cane was not described.  Evidence of possible nerve root irritation was noted, although the affected side was not specified.  The examiner diagnosed chronic low back pain with radiculopathy.  At a PM&R evaluation 7 months prior to separation the CI reported low back pain with “irritability” to the left leg and increased pain after standing for more than 1/2-hour.  Examination showed a “limping gait on occasion” but spasm or guarding was not mentioned.  Electrodiagnostic studies performed the following day showed no evidence of acute or chronic radiculopathy.  At a PM&R follow-up examination 3 months prior to separation the CI reported low back pain that was worse while walking.  Examination showed the CI to be “ambulating well.”  While guarding was present, the examiner indicated that it did not cause an abnormal gait or spinal contour.  Spasm was absent.  There were four signs of possible non-physiologic pain.  A NARSUM addendum dated 13 February 2007 indicated there had been no significant changes since the earlier examination (NARSUM dated 6 July 2006).

The Board directed attention to its rating recommendation based on the above evidence.  The VA determined the lumbar spine condition was not service connected (NSC) because it existed prior to the active duty period of the injury.  The PEB assigned a 10% rating under the 5299-5237 code (analogous to lumbosacral strain), citing motion limited by pain with localized tenderness.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees); or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the MEB, NARSUM, and PM&R exams.  In considering other pathways to a higher rating, it was noted that while use of a cane was reported at the NARSUM exam and an “occasional limping gait” was present on a PM&R exam (19 September 2006), these findings were not directly linked to spasm or guarding.  Because the final PM&R exam (25 January 2007) clearly specified that guarding was not a cause of abnormal gait or spinal contour, the Board concluded that this was not a sufficient basis for a 20% rating (i.e. for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis).  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula.

The Board finally deliberated if additional disability rating was justified for peripheral nerve impairment in this case.  Although the NARSUM examiner rendered a diagnosis of radiculopathy, MRI was negative for neuroforaminal impingement and electrodiagnostic studies showed no radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  Although the CI may have experienced radiating pain to the lower extremities, this is subsumed under the general spine rating criteria, which specifically states ‘with or without symptoms such as pain (whether or not it radiates)’.  The Board concluded that functional impairment attributable to peripheral nerve impairment was not in evidence, and therefore cannot recommend additional rating for it.  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 chronic back pain.

BOARD FINDINGS:  In the matter of the chronic neck pain, the Board by a majority vote recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  The minority voter recommended no change to the assigned rating and did not elect to submit a minority opinion.  In the matter of the chronic back pain 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 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 his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Neck Pain	5243	20%	
Chronic Back Pain	5299-5237	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140402, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160006756 (PD201401574)

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 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 day suspense date:

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