RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
 
NAME:  XXXXXXXXXXXXXXXXXXX	   CASE:  PD-2014-01729
BRANCH OF SERVICE:  Army
DATE OF PLACEMENT ONTO TDRL:  20050210          DATE OF REMOVAL FROM TDRL:  20060911

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Motor Transport Operator, medically separated from the Temporary Disability Retired List (TDRL) for “chronic neck pain, C5-6” and “chronic low back pain” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  “Initially my disability rating awarded was 40%.  Right before separation, I was reassigned with a new rate of 20%.”

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 – 20050210/20060814	VARD - 20051220	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Chronic Neck Pain, C5-6 HNP	5243	20%	10%	Disc Protrusion C6-C7 and Narrowing of C5-C6 and C6-C7 Foramina Secondary to Osteophytes 	5242	20%	20%	
Chronic Low Back Pain	5299-5237	20%	10%	Bulging Disc at L5-S1	5242	20%	20%	
				Right L4-L5 Radiculopathy with Decreased Pinprick, Right Lower Extremity Associated with Bulging Disc at L5-S1 	8599-8520	10%	10%	
COMBINED RATING:  40% → 20%	COMBINED RATING FOR ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Chronic Neck Pain.  The record shows that on 21 March 2001, the CI fell from a scaffold about 10 feet from the ground.  He reported chest pain as well as an injury to the right shoulder and elbow and left hand.  X-rays of his neck were normal.  He subsequently reported low back pain (LBP).  He was seen multiple times over the first 2 weeks following his fall and released from active duty on 1 April 2001.  He then returned to his civilian job (maintenance) until 1 March 2002 when he stopped working.  There are no clinical records after an entry on 29 March 2001 until 10 April 2002 when a CT scan was accomplished for LBP (back analysis below).  One week later on 17 April 2002, an MRI of the cervical spine showed degenerative changes of the spine and disc protrusion (herniation) at C6-7.  The next visit in evidence is a VA primary care note dated 28 February 2003 for LBP after aggravating it at home.  At a disability evaluation on 25 April 2003, the CI reported constant neck, back, shoulder, and hip pain with radiation down the right arm and leg.  His grip was reduced on the right, but normal otherwise for the upper extremities.  Tenderness of the paraspinal cervical muscles was present.  The CI had normal range-of-motion (ROM) as charted below.  A functional assessment on 25 June 2003 noted that his symptoms were proportionate to his objective findings.  The CI was seen for pain management on a regular basis over the next year.  On 4 February 2004, a compression test of the cervical spine (Spurling test), which is indicative of nerve root compression, was negative.  In neurosurgery on 29 March 2004, he reported bilateral hand numbness lasting for several seconds.  He was noted to have tenderness of the cervical spine muscles.  An MRI on 28 April 2004 noted a herniated disc at C5-6 and C6-7 with the latter impinging the cord.  Stenosis of the canal and right foramen was present at the C6-7 level as well.  In neurosurgery on 17 May 2004 he was noted to have normal motor function with bilateral numbness.  Electrodiagnostic testing on 30 July 2004 showed bilateral carpal tunnel syndrome, a neuropathy of the median (peripheral) nerve without radiculopathy.

The first narrative summary (NARSUM) was dated 16 November 2004, 3 months prior to TDRL placement.  The CI reported that his neck pain was aggravated by reading, driving, and computer work and relieved by medications, rest, and physical therapy.  Bilateral cervical spasm was present on examination and a Spurling test was positive.  The ROM was reduced as charted below.  The CI was placed on TDRL effective 10 February 2005.  At the VA Compensation and Pension (C&P) examination performed on 20 August 2005, 6 months after TDRL placement, there was “exquisite” tenderness on palpation was well as spasm and guarding of the cervical area.  Repetitive motion was not possible due to pain.  His ROM was limited by pain and charted below.  

The CI was seen in neurology on 21 November 2005, 9 months after TDRL placement and 10 months prior to TDRL removal.  He was noted to have “give way” weakness, a sign of non-organic pathology, but not atrophy.  Sensation was reduced over the right ulnar aspect of the arm and forearm.  Reflexes were normal.  Spasm and tenderness were noted.  The ROM was reduced and is charted below.

The CI was then seen in occupational therapy (OT) on 17 January 2006, 7 months prior to TDRL separation, for ROM measurements which are charted below.  Pain with activity was reported.  A back examination in physical therapy that same day documented multiple maneuvers which were painful even though not expected to cause pain as well as signs indicative of poor effort.  The TDRL removal NARSUM was dated 18 January 2006.  The CI reported a poor response to treatment.  A significant variance was noted between the two examinations in multiple planes of motion.  A primary care note dated 6 June 2006 noted normal motor and sensory examinations.  A primary care note dated 2 February 2007, 5 months after TDRL removal, noted intact ROM for the musculo-skeletal system.  In physical therapy on 12 February 2008, he was noted to have normal ROM except rotation at 75% of normal.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the neck at 20%, coded 5243 (intervertebral disc syndrome), at TDRL placement.  The VA rated the neck at 20%, using the current code 5293 (intervertebral disc syndrome), in the rating decision dated 18 July 2002.  It did not reconsider the neck in the 21 September 2005 or 20 December 2005 rating decisions and continued the rating at 20%, but changed the code to 5242 (degenerative arthritis of the spine) on the latter decision.  The Board considered the evidence and found no route to a higher rating at TDRL placement.  The Board then considered the evidence at TDRL removal.  The PEB rated the neck at 10%, coded 5242 (degenerative arthritis of the spine), noting under the back that 4 of 5 maneuvers not expected to be painful caused pain.  The Board noted the variance in the measurements between the TDRL removal NARSUM and the OT examination the day prior and the indications on various examinations that the CI was not giving full effort.  In addition, 4/5 maneuvers not expected to be painful, were at the back examination in OT.  Several examinations following separation and done for clinical purposes rather than for rating evaluations were normal or near normal. The Board considered the totality of evidence and determined that the disability at TDRL removal best fit the 10% level of impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB adjudication for the neck condition at TDRL placement or TDRL removal.  The evidence does not support the presence of an unfitting radiculopathy.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

Chronic Low Back Pain.  The CI reported that he injured his back at the same fall on 21 March 2001.  After reporting LBP and radiation of pain to both legs, he underwent a CT scan on 10 April 2002 which showed a herniated disc at L5S1 without cord or nerve root impingement.  He was treated for pain several times the next 2 years.  On 25 April 2003, he underwent a disability evaluation by a neurologist.  On examination, he had an abnormal gait from pain avoidance (antalgic) with reduced strength in both legs, but without atrophy.  The paraspinal muscles were tender, but without spasm.  A functional assessment on 25 June 2003 noted that his symptoms were proportionate to his physical findings.  In neurosurgery on 29 March 2004, he reported the use of Canadian crutches (forearm crutches) for 2 weeks and walked “fairly well” with these.  Forward flexion was limited to 50 degrees.  A repeat MRI on the lumbar spine on 28 April 2004 was normal on initial review; a subsequent VA review on 19 May 2004 showed degenerative disc disease at L2-3, L3-4, and L5-S1 without nerve impingement.  The MEB examination on 21 September 2004 noted a normal neurological examination.  Electrodiagnostic studies on 1 October 2004 showed right L4 and L5 irritability and bilateral S1 irritability.  At the NARSUM, the CI reported no improvement from treatment.  On examination, the ROM was based on the MEB examination 2 months before.  The CI was placed on TDRL effective 10 February 2005.  At the VA C&P examination performed 6 months after TDRL placement, the CI reported the use of Canadian crutches and a back brace.  On examination, the lumbar paraspinal muscles were tender with guarding and spasm present.  Motion was painful and limited as charted below.  Repetition was not possible due to pain.  Another disability evaluation, also by a neurologist, was accomplished on 21 November 2005.  He had a mild limp and used Canadian crutches (essential).  He did have “give way” weakness of the right hand and thigh.  The lumbar paraspinal muscles were tender and spasm was present.  The ROM was limited as charted below.

A primary care note on 9 January 2006 documented “no gross motor and sensory deficit.”  At a physical therapy evaluation on 17 January 2006 the CI had limited and painful motion as charted below.  His gait was normal without the use of crutches and he was able to go up and down stairs without support (rails).  Four maneuvers not expected to cause pain were positive.  Cogwheeling was present.  The measured motor function was noted to be inconsistent with both the unassisted gait and the ability to climb and descend stairs unassisted (not using the hand rails).  The TDRL removal NARSUM was the next day on 18 January 2006.  The CI reported that he could not walk over 50 meters without stopping secondary to pain.  A primary care note on 6 June 2006 noted limited ROM without further detail.  It was also noted that there was no gross motor or sensory deficit.  On 2 February 2007, a primary care note recorded that the ROM was intact with weakness and numbness in all four extremities.  Post-separation examinations showed reduced flexion consistent with examinations prior to TDRL removal.  

The Board directed its attention to its rating recommendation based on the above evidence.  Again, both the PEB and VA rated the back at 20% at TDRL placement, coded 5299-5237 (analogous to lumbosacral strain) and 5242.  At TRDL removal, the PEB rated the back at 10% while the VA retained the 20% rating.  Neither changed the code.  The VA also rated the CI for a right L4-5 radiculopathy 10% at TDRL placement and removal, coded 8599-8520 (analogous to paralysis of the sciatic nerve).  

The Board considered the evidence and found no route to a rating higher than the 20% adjudicated for the back at TDRL placement.  It then considered the TDRL removal rating.  As already addressed in the discussion of the neck, the Board found multiple entries in the record which call into question the probative value of the ROM measurements.  However, unlike the neck, the ROM values for the back, both before and after TDRL removal, consistently support a 20% rating at TDRL removal.  Finally, the Board considered if an unfitting radiculopathy was present at separation.  The PEB specifically noted that there was not a neurological abnormality at TDRL placement and removal.  Review of the record shows that while not all neurological examinations were normal, there was inconsistency between reported impairment and physical findings and also findings consistent with non-organic pathology.  The evidence does not support the presence of an unfitting radiculopathy at TDRL placement or removal.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a no change in the PEB adjudication at TDRL placement and that the back be rated at 20% at TDRL removal.

BOARD FINDINGS:  In the matter of the neck and back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication at TDRL placement and also not change for the neck at TDRL removal.  In the matter of the back condition, the Board unanimously recommends a permanent disability rating of 20%, coded 5242 IAW VASRD §4.71a.  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:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Chronic Neck Pain	5242	20%	10%	
Chronic Low Back Pain	5242	20%	20%	
COMBINED	40%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160007315, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,

XXXXXXXXXXXXXXXXXXX
Deputy Assistant  Secretary of the Army

Enclosure