RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01879
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061103

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Infantry, medically separated for “chronic neck pain” and “chronic low back pain”, rated 10% and 10%, respectively, with a combined  disability rating of 20%.

CI CONTENTION:  “Please consider all conditions.” The CI’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 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 based upon a 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 –20060731	VARD - 20070725	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5241	10%	Intervertebral Disc Syndrome…	5241	20%	20070430	
Chronic Low Back Pain with Radiculitis…no Radiculopathy…	5237	10%	Radiculitis, Lumbar Spine…	5237	10%		
			Sensory Deficit…Right Thigh…	8520	10%		
Chronic Bilateral Finger Numbness and Paresthesias	Not Unfitting	Sensory Deficit…Left…	8515	10%		
		Sensory Deficit…Right…	8515	10%		
Adjustment Disorder, Chronic		Post-Traumatic Stress Disorder (Claimed as Adjustment Disorder, Anxiety, Depression, and Insomnia) 	9411	30%		
Anxiety						
Depression						
Insomnia…						
Kidney Stone		Recurrent Nephrolithiasis	7508	20%		
Combined RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Neck Pain S/P C5-C7 Spinal Fusion for HNP (Herniated Nucleus Pulposus) Condition and Chronic Bilateral Finger Numbness and Paresthesias Condition.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI initially injured his neck in a soccer game in April 2001.  He had a herniated nucleus pulposus (HNP) and underwent cervical spine surgery (C5-6 anterior cervical discectomy and fusion - ACDF) in December 2001.  He re-injured his neck in November 2004 when he fell while on patrol in Afghanistan.  His upper extremity radicular symptoms increased and he underwent a revision cervical surgery (fusion C5-7 with C6 corpectomy for non-union at C5-6) on 29 September 2005.  

NARSUM examination demonstrated C-spine range of motion (ROM) average of three measurements 30 degrees flexion (normal 45 degrees), extension 30 degrees (normal 45 degrees), light touch intact and 5/5 strength in shoulder and arm muscles.  There was pain with Spurling’s but no radicular reproduction of symptoms, normal posture and gait.  X-rays showed healed fusion with no instability.  

Despite treatment, the cervical spine condition could not be adequately rehabilitated to meet physical requirements of the CI’s military specialty and the CI was referred for a MEB.  The MEB forwarded “chronic bilateral finger numbness and paresthesias” and “chronic neck pain” for PEB adjudication.  

The MEB NARSUM examination on 31 March 2006 (7 months prior to separation) noted complaints of bilateral ulnar-sided finger numbness and paresthesias which occurred approximately once per week lasting 2-3 minutes (left greater than right).  The CI also complained of mild neck pain described as sharp and pinching.  The CI reported that he had had no real radicular symptoms since his last surgery with the exception of his left sided radicular symptoms that occurred 2 times and lasted only a few seconds each time.  He denied any bowel or bladder symptoms or any lower extremity problems.  Physical examination showed a well healed wound.  He had forward flexion of the cervical spine of 30 degrees with pain on range of motion (ROM) at the extremes.  There was no tenderness to palpation.  There was pain with the Spurling’s test (test done to check for radicular symptoms), but he had no reproduction of radicular symptoms.  His upper extremity strength was normal (5/5) and light touch sensation was intact and there was no tenderness to palpation w/ROM not neuro.  He had 1+ symmetric reflexes in upper and lower extremities.  The examiner did not recommend further surgical treatment.  

At the VA Compensation and Pension (C&P) examination on 30 April 2007, performed 6 months after separation, the CI reported daily stiffness and constant pain at the base and mid-neck area for 5 years.  He reported that the pain traveled up into the head causing headaches and down into the shoulders.  The pain was sharp and described as 7/10 and aggravated by physical activity and stress.  His pain started at 2-3/10 in the morning with stiffness and aching and would rise to 7/10 by the end of the day.  He reported times when he had to have complete bedrest when the pain was severe.  He was taking morphine for extreme pain, MS Contin for severe pain and Flexeril, Tylenol and Excedrin as needed.  He also stated that his spine condition did not cause incapacitation.  Physical examination showed no evidence of radiating pain on movement, but tenderness at the base of the neck extending out to the upper back and shoulders.  There was no ankyloses of the cervical spine on examination.  Pain was the major impact on function after repetition.  Cervical spine ROM measurements performed by the examiner, 30 April 2007 were flexion 40 degrees (normal 45) and combined cervical spine ROM of 210 degrees (normal 340) after repetitive movement.  After repetition the joint function was additionally limited by pain by 15 degrees for a flexion of 25 degrees (positive DuLuca findings).  

There was no additional limitation from fatigue, weakness, lack of endurance or incoordination.  On examination, upper extremity strength, sensation and reflexes were normal.  Provocative maneuvers for signs of radiculopathy or radiating pain due to spinal nerve root involvement were negative.  The examiner was silent regarding muscle spasms, gait and spinal contour.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic neck pain condition 10% rating under the 5241 code (spinal fusion), citing limitation of motion due to pain.  The PEB also adjudicated “Chronic Bilateral Finger Numbness and Paresthesias” as not unfitting.  The VA assigned a 20% rating using the 5241 code (spinal fusion) for limitation of motion, and additionally rated the sensory deficits of the right and left upper extremities at 10% each using the 8515 code (median nerve).  

In assigning probative value to examinations in evidence, the Board noted that the MEB measurements (7 months pre-separation) were fairly consistent with the C&P examination with the exception of the forward flexion measurement (6 months post-separation).  Both examinations were detailed examinations and while the C&P examination was 1 month closer to separation the MEB examination was pre-separation and the Board found that it was the best representation of the CI’s neck condition at separation.  Therefore, based on all evidence and associated conclusions just elaborated, Board consensus was that preponderant probative value should be assigned to the MEB physical therapy ROM examination.  

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees) reported on the MEB examination (or after repetition on the VA examination). 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 based on incapacitating episodes due to intervertebral disc syndrome.  

In addressing the contended bilateral finger numbness and paresthesias, there was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  The Board finally deliberated if additional disability was justified for peripheral nerve impairment.  Pain (whether or not it radiates), stiffness, or aching is rated under the general formula for the spine and was considered in the code 5241 rating above.  There was insufficient evidence in this case of functional impairment attributable to peripheral neuropathy that adversely impacted duty performance.  The Board therefore concluded that no peripheral nerve (radiculopathy) condition could be recommended for additional disability rating.  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 condition, coded 5241.  

Chronic Low Back Pain Condition.  According to STR and the MEB NARSUM, the CI’s low back condition began 5 years prior in 2002 but was exacerbated in November 2004 after his falling accident in Afghanistan.  Plain X-rays from 31 March 2006 showed a normal thoracolumbar spine but noted some mild disc space narrowing.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “chronic low back pain for PEB adjudication.  

The MEB NARSUM dated 31 March 2006 (7 months prior to separation) noted complaints of daily low back pain for a 5-year period.  He also complained of bilateral radicular symptoms which he stated began after his accident in Afghanistan in November 2004.  On examination there was no numbness or paresthesias noted.  There was tenderness to palpation.  He had some limitation of motion as recorded in the chart which was secondary to pain.  There was no additional limitation with repetitive motion.  The examiner noted no muscle spasm and was silent about his gait.  

At the VA (C&P examination on 30 April 2007, performed 6 months after separation, the CI reported low back pain with radiculitis.  He complained of stiffness and pain sometimes characterized as pinching when breathing.  He described his pain as constant, crushing, aching and sharp, sometimes extending down into the hips and legs at a level of 7/10.  He reported taking Naprosyn, Flexeril and Motrin and lying flat on his back for some relief.  He stated that he could function while taking medications and that his pain was not incapacitating. He reported that his pain did disturb his sleep.  On examination there was no radiating pain on movement and no muscle spasm.  There was tenderness, and negative straight leg raise test (check for herniated discs) bilaterally.  There was no ankylosis of the lumbar spine.  His ROM was slightly pain limited in lateral flexion (see chart above).  Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetition.  The examiner noted he had normal curvature of the spine.  However, there were signs of intervertebral disc syndrome (IVDS) as evidenced by sensory deficit of the left thigh (L4) and sensory deficit of the right lateral leg and right lateral foot (L5).  The extremity reflexes for the knee and ankle were 1+ bilaterally.  The IVDS did not cause any bowel, bladder or erectile dysfunction.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain condition 10% coded 5237 (lumbosacral strain), citing “slight” reduction of motion due to pain with tenderness to palpation.  The VA also rated the chronic low back pain condition 10% coded 5237(lumbosacral strain), as “radiculitis, lumbar spine with mild disc narrowing T12/L1 and T11/12, thoracic strain”, citing limited motion and additionally rated the sensory deficits of the right thigh at 10% using the 8520 code (sciatic nerve).  

The Board noted that the MEB examination supported a 20% rating based on limitation of thoracolumbar ROM (no greater than 60 degrees forward flexion) while the proximate post-separation VA C&P examination supported a 10% rating based on limitation of thoracolumbar motion, tenderness or painful motion.  The limitations-of-motion recorded during the two examinations were not so different as to be inconsistent with the CI’s back condition.  Board members agreed that both the MEB and VA examination were of equal quality with regard to rating the back condition at the time of separation and also noted that there was no other evidence proximate to separation which would add weight favoring the 10% versus the 20% rating.  As noted in the previous discussion of neck pain, both examinations were detailed examinations and while the C&P examination was one month closer to separation the MEB examination was pre-separation and the Board found that it was the best representation of the CI’s neck condition at separation.   The documentation of forward flexion to 40 degrees appeared valid and therefore consistent with a 20% rating (forward flexion greater than 30 degrees but not greater than 60 degrees.)

Therefore, in consideration of reasonable doubt (§4.3) as well as the functional limitations (§4.40, §4.45) described in the MEB and VA examinations, the Board concluded that there was not a preponderance of evidence to favor the 10% rating over the 20% rating and therefore recommended the 20% rating.  

While there was some documentation of intervertebral disc syndrome in the VA C&P examination, there was no documentation of incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  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 low back pain condition, coded 5237.  

Contended PEB Conditions.  Adjustment disorder, Anxiety, Depression, Insomnia, Kidney Stones. 
The Board’s main charge is to assess the fairness of the PEB’s determination that the chronic adjustment disorder, anxiety, depression, insomnia and kidney stone conditions were not unfitting.  Specifically regarding the contended mental health conditions, the CI deployed to Afghanistan from May 2004-May 2005 where he had multiple severe traumatic episodes.  He self-referred to his primary care doctor in February 2006 and experienced adjustment difficulties, including hyperarousal, hypervigilance, irritability, self-isolation and poor sleep since his return.  He denied suicidal/homicidal ideation. He reported overall improvement but had disturbed mood and sleep.  At the April 2006 visit for follow up, he reported much improved sleep and improved mood.  The C&P examination reported that he was employed immediately post discharge as an Inventory manager.  Relationships with his coworkers and supervisor were good.

None of the conditions (to include kidney stones) were profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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:  In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the chronic low back pain condition, the Board, by a majority vote, recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The minority voter did not elect to submit a minority opinion.  In the matter of the contended chronic adjustment disorder, anxiety, depression, insomnia, kidney stone and bilateral finger numbness and paresthesias 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.  

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 prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5237	20%	
Chronic Low Back Pain	5237	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140429, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 AR20160013307 (PD201401879)

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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% 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 days from the date of this memorandum:

	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 40% 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