RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01590
BRANCH OF SERVICE:  Army	Date of seperation: 20080827

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3, Infantryman, medically separated for C4-C5 and C5-C6 disc bulges without neurologic deficits and chronic back pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “intervertebral disc degeneration cervical” and “lumbago,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (borderline hypertension, hyperlipidemia, patellofemoral pain syndrome) for PEB adjudication.  The Informal PEB adjudicated “for C4-C5 and C5-C6 disc bulges without neurologic deficits” and  “chronic back pain” as unfitting, rated 10% and 10%, with application of the Department of Defense Instruction (DoDI) 1332.39 and 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: “I have more conditions caused by my service than were on my initial med board.  As well I feel my rating was low.”   His 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 20080513	VA* - (~27 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
C4-C5 and C5-C6 Disc Bulges without Neurologic Deficits	5299-5242	10%	Cervical strain	5237	10%	20100510	
Chronic Back Pain	5299-5237	10%	Degenerative Joint Disease Thoracic Spine with Lumbar Strain (claimed as thoracolumbar condition and lumbago)	5242	10%	 20100510	
Borderline Hypertension	Not Unfitting	Hypertension	7101	NSC	20100510	
Hyperlipidemia	Not Unfitting	Not Addressed	
Patellofemoral Pain Syndrome	Not Unfitting	Patellofemoral Pain Syndrome, Left Knee	5260	NSC	20100510	
		Patellofemoral Pain Syndrome Right Knee	5260	NSC	20100510	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 3	
RATING:  20%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20100915 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

C4-C5 and C5-C6 Disc Bulges without Neurologic Deficits Condition.  A radiology report dated 17 October 2007 ordered for non-radiating neck pain showed decreased cervical lordosis most likely secondary to muscular spasm.  X-rays of the cervical soft tissue on 28 October 2007 revealed anatomic alignment without a fracture, although the C7 vertebra was not visualized.  Again there was straightening of the cervical spine and the pre-vertebral soft tissues were within normal limits; the odontoid view was normal; and there were no significant degenerative changes noted.  An MRI dated 16 November 2007 noted the cervical exam was a bit limited, but there was evidence of neurocompressive disease with mild disk bulges at C4-5 and C5-6, which may have displaced the spinal cord slightly to the posterior extent of the bony spinal canal without evidence of syrinx (a fluid filled cavity in the spinal cord), hemorrhage, mass, edema, or atrophy.  Range-of-motion (ROM) measurements performed by a physical therapist in April 2008 revealed flexion 54 degrees without pain, extension 30 degrees, left lateral bending 48 degrees, right lateral bending 38 degrees, left rotation 70 degrees, and right rotation 73 degrees.  There was no change in any of the aforementioned ROMs after three repetitions and pain ranged from 1-2/10 (10 being the worst pain) for all of the ROMs except flexion and right rotation, which were without pain.  

The MEB narrative summary (NARSUM) dated 10 April 2008 noted the CI experienced an insidious onset of lumbothoracic back pain (see below) while deployed in late April/early May 2007 after  a couple of weeks of daily foot patrols, which was followed by severe neck pain about 4 to 6 weeks later.  There was no history of direct trauma due to combat or a non-battle injury, although the CI had minor private vehicle accidents in March 2005 and October 2007 as well as exposure to an IED, although there were no reported injuries to either the HMMWV crew or the CI.  He reported pain between the shoulder blades extending to the base of the neck ranging from 2-9/10 in severity.  The CI failed to improve with quarters, medication including narcotics and amitriptyline (for nerve pain), and physical therapy.  As a result he was transferred out of the theater of operations where only rest and time seemed to relieve the pain.  He could not tolerate Army physical training and normal MOS duties.  On examination there was a mildly kyphotic posture, which was corrected with effort, and no direct cervical paraspinal tenderness, but there was tenderness on palpation of the upper trapezius and upper thoracic paraspinal region on both the left and right from T1 to about T3.  The cervical ROM measurements were forward flexion 55 degrees (chin to chest), extension 30 degrees, lateral flexion to the left and right 45 degrees each, and lateral rotation left and right 60 degrees each.  The neurological examination was unremarkable and his balance, gait, and stance were normal.  The diagnosis of cervical intervertebral disc degeneration was made.
A permanent U3 profile was issued in conjunction with an L3 profile (discussed below) in December 2007 with limitations of all military functional activities except wearing a protective mask and all chemical defense equipment as well as no physical fitness testing and no wearing individual body armor, a load bearing vest, or a rucksack.  The commander’s statement dated 8 January 2008 indicated the CI was an excellent soldier, but the risks posed by his back problems, which developed when he was deployed, and the physical demands required by his MOS, precluded him from functioning as an infantryman.  At the MEB examination dated 10 January 2008, the CI reported on a DD Form 2807-1 upper back pain close to the neck and shoulder blades.  The MEB physical examiner noted on a Form DD Form 2808 dated 5 February 2008 diffuse paracervical muscle tenderness to palpation and the ROMs were limited by pain with decreased flexion, lateral flexion, extension and rotation.  Additionally, there was paraspinal tenderness to pressure from T1 to T6.

At the remote VA Compensation and Pension (C&P) examination dated 10 May 2010, performed 27 months after separation, which had little to no probative value, the CI reported developing the neck pain condition when deployed.  On examination there was no evidence of radiating pain on movement, muscle spasm, guarding, weakness, loss of tone, or atrophy of the limbs.  There was tenderness in the cervical area.  The ROM measurements were normal and pain began at 30 degrees only for flexion and extension.  The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.

The Board directed its attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating using code 5299-5242 (Degenerative arthritis of the spine) for C4-5 and C5-6 bulges without neurologic defects.  The VA assigned a 10% rating using code 5237 (Cervical strain).  The Board sought a route to a higher rating, but was unable to find one in the absence of ankylosis, muscle spasm or guarding resulting in an abnormal gait or abnormal spinal contour, further diminished ROMs, or incapacitation. The Board then considered whether an additional Service rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  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 cervical pain condition based on C4-C5 and C5-C6 disc bulges without neurologic deficits.  

Chronic Back Pain Condition.  A note in the service treatment record (STR) dated 9 January 2004 indicated the CI had back pain for 3 years and he took ibuprofen (a nonsteroidal anti-inflammatory drug (NSAID)) when it bothered him during mornings and evenings.  X-rays of the lumbar spine dated 17 October 2007 ordered for non-radiating low back pain demonstrated a normal lumbar spine series.  An MRI dated 16 November 2007 demonstrated some mild flattening of the anterior surface of the thecal sac of L4-L5 giving a borderline, low normal 10 mm AP (anterior to posterior) dimension, but no central stenosis, foraminal stenosis, or significant degenerative changes.  A physical therapist noted the CI’s pain was 4/10 with no weight loss, fevers, malaise, dizziness, muscle weakness, muscle fatigue, bowel/bladder symptoms, erectile dysfunction, or visual disturbances.  ROM measurements were flexion 85 degrees, extension 17 degrees, left lateral bending 32 degrees, right lateral bending 31 degrees, left rotation 54 degrees and right rotation 32 degrees.  There was no change after three repetitions for any of the measurements, but there was between 4-6/10 pain during the ROMs.

A permanent L3 profile was issued in July 2007 with the same limitations as the cervical pain condition (above) including running.  The commander’s statement dated 8 January 2008 noted the CI developed lower back pain when deployed, which precluded him from performing the duties of his MOS.  At the MEB examination dated 10 January 2008 the CI reported constant sharp lower back pain on DD Form 2807-1.  The MEB physical examiner noted on DD Form 2808 dated 5 February 2008 paraspinal tenderness to pressure from L1 to S1.  The ROM was limited by pain with decreased flexion, extension, lateral flexion and rotation.  Straight leg testing (to determine nerve root irritation) was negative.  Motor strength was normal as were the reflexes and gait.  

The MEB narrative summary (NARSUM) dated 10 April 2008 noted the lower back pain occurred primarily when burdened by individual body armor or running, but the CI reported no limitations in walking, driving, or light office duties.  On examination there was tenderness on palpation of the lumbar paraspinal region and overlying bilateral sacroiliac joints.  There was no muscle spasm, swelling, induration, erythema, warmth, and no palpable defect or focal bony tenderness.  However, the CI did report pain bilaterally at the sacroiliac joints.  ROM measurements were flexion 75 degrees (able to reach top of feet), extension 15 degrees, right and left lateral flexion 30 degrees each, and right and left rotation 45 degrees each.

At the VA Compensation and Pension (C&P) examination dated 10 May 2010, performed 27 months after separation, the CI reported weakness of the spine and leg, obstipation, and erectile dysfunction, but no bladder problems.  Treatment consisted of Percocet (oxycodone, a narcotic and acetaminophen, a pain reliever).  His overall functional impairments included limited lifting and bending.  Examination revealed no evidence of radiating pain on movement, muscle spasm, or guarding.  There was lumbar tenderness with normal musculature and muscle tone.  Straight leg raise (to determine nerve root irritation) was negative and there was no ankylosis.  ROM measurements were normal except flexion was 80 degrees with pain beginning at 60 degrees.  The joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetition.      

The Board directed its attention to its rating recommendation based on the above evidence.   The PEB assigned a 10% rating using code 5299-5237 (lumbosacral strain) for chronic back pain. The VA assigned a 10% rating using code 5242 (degenerative arthritis of the spine) for degenerative joint disease of the thoracic spine with lumbar strain.  The Board sought a route to a higher rating, but was unable to do so in the absence of ankylosis, diminished ROMs, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitation.  The Board then considered whether an additional Service rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy could not be recommended for additional disability rating.  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 condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that hypertension, hyperlipidemia, and patellofemoral pain syndrome conditions were 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 hypertension, hyperlipidemia, and patellofemoral pain syndrome conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  The aforementioned was reviewed and considered by the Board.   There was no performance based evidence from the record that any of the conditions 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 any of the contended conditions and so no additional disability ratings are 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 (C4-C5 and C5-C6 disc bulges without neurological deficits) condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hypertension, hyperlipidemia, and patellofemoral pain syndrome 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.  

RECOMMENDATION:  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 20141590, 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, AR20160003213 (PD201401590)

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