RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-01977
BRANCH OF SERVICE:  Army	BOARD DATE:  20140804
SEPARATION DATE:  20070808

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (11B/Infantry) medically separated for chronic neck and chronic low back conditions.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “chronic cervical pain; DJD and disc protrusions C3-4, C5-6” and “chronic lumbar pain; DJD, disc protrusions L4-5, L5-S1” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded “hypercholesterolemia” and “thoracic syrinx, asymptomatic” as not disqualifying.  The Informal PEB (IPEB) adjudicated “chronic neck pain” and “chronic low back pain” as unfitting, rated 10% and 0%, respectively, for a combined 10% disability, with likely reliance on AR 635-40 for rating.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting chronic neck and chronic low back conditions are addressed below.  The Board will also consider the contended hypercholesterolemia and thoracic syrinx conditions.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service Reconsidered IPEB – Dated 20070430	VA - (1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5237	10%	DDD Cervical Spine	5243	10%	20070911	
Chronic Back Pain	5237	0%	DDD Thoracolumbar Spine	5243	10%	20070911	
			Radiculopathy, Left Lower Extremity	8599-8520	10%	20070911	
Hypercholesterolemia 	Not Unfitting	No VA Entry	
Thoracic Syrinx	Not Unfitting	No VA Entry	
Other x 0 (Not in Scope)	Other x 2	20070911	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20071025 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Neck Condition.  The narrative summary (NARSUM) dated 18 December 2008 indicated onset of neck pain since 2005 with continued symptoms of neck pain following traction and conservative therapy including physical therapy (PT), chiropractic, and narcotic pain medications.  The CI was not considered a surgical candidate.  At the MEB exam, the CI reported throbbing neck pain interfering with sleep.  Radiographs documented degenerative changes (disc protrusion, osteophyte and foraminal narrowing).  The MEB physical exam noted a non-tender neck with mild muscle spasm and “pain with initiation of all movements and movements full.”  There were no upper extremity motor or sensory deficits.  Formal range-of-motion (ROM) testing for the MEB by PT was performed on 7 January 2008 and documented pain limited active ROM to forward flexion 60 degrees (normal 45 degrees) and combined to 320 degrees (normal 320 degrees).

At the VA Compensation and Pension (C&P) exam performed a month after separation, the CI reported initial neck pain in 2002 with pain radiating into the shoulders.  Pain was worse with activity and there was no weakness.  The neck exam documented tenderness with pain-limited flexion of 40 degrees (normal 45 degrees) and combined 335 degrees (normal 340 degrees).

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the neck at 10% coded 5237 (cervical strain) noting spasm and listing the passive PT ROMs as pain limited (VASRD ratings are based on active ROMs).  The VA rated the condition at 10% coded 5243 (intervertebral disc syndrome).  All exams in evidence demonstrated combined cervical ROM combined ROM of the cervical spine greater than 170 degrees but not greater than 335 degrees warranting a 10% rating.  Exams noting tenderness and noting spasm did not indicate any abnormal spinal contour.  Either VASRD code uses the general rating formula for the spine and includes symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine.

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 neck condition.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

Chronic Low Back Condition (Including Contended Thoracic Syrinx).  The NARSUM noted back injury from a fall in 2002 with re-injury in February 2005 requiring emergency department evaluation, exacerbation in June/July 2005 with lumbar spasm and temporary relief with chiropractic therapy, multiple epidural steroid injections, and a trigger point injection.  Lower back pain continued although left leg pain radiation had been minimal following the April 2006 injection.  The CI was not considered a surgical candidate.  Radiographs documented degenerative disc disease (DDD), mild spinal stenosis in the lumbar region and mild dilatation of the thoracic cord (initially read as hydromyelia, and later read as Syrinx).  Disk protrusions were noted to decrease from 2005 through 2007 and the mild dilatation of the central thoracolumbar spinal canal (Syrinx) was stable.

At the MEB exam, the CI reported back pain exacerbated by activity and rare left leg pain.  The MEB physical exam noted “Full range of motion of the lumbar spine with minimal pain with flexion/extension/rotation.”  Gait was normal.  There was no tenderness, motor or sensory deficits.  “Straight leg raise (for radicular symptoms) was positive on the left with shooting pain from the lumbar spine into his leg.”  Formal ROM testing for the MEB by PT was performed on 7 January 2008 and documented pain limited active ROM to forward flexion 60 degrees (normal 90 degrees) and combined to 205 degrees (normal 240 degrees).  In the CI’s rebuttal to the MEB, he requested retention (MMRB) and stated “aside from some pressure in my neck I feel good.”  At the VA C&P exam the CI reported pain in the lower back with radiating pain down the left lower leg.  Exam documented tenderness, spasm and painful motion with flexion to 80 degrees (normal 90 degrees) and combined 195 degrees (normal 240 degrees).

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the back at 0% coded 5237 (lumbosacral strain) listing the ROMs as “80 degrees flexion and 40 degrees extension, measurements restricted by pain” which appeared to be the passive ROMs from the MEB-PT evaluation.  The PEB approach, using passive ROMs, was countenanced by AR 635-40, B-29 in effect at the time; however, VASRD ratings are based on active ROMs.  The VA rated the back at 10% coded 5243 (intervertebral disc syndrome).  There was no Disability Evaluation System adjudication for any non-pain radiculopathy and either VASRD code uses the general rating formula for the spine which includes symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine.  The only episodic non-pain radicular finding was decreased subjective sensation to the left lower leg, which did not appear to interfere with duty.  The thoracic syrinx was a radiographic finding and any disability related to it was considered under the thoracolumbar spine rating.

All exams in evidence demonstrated painful motion and warranted a minimum 10% rating IAW VASRD §4.59 (painful motion).  The Board deliberated if the CI met the general spine rating criteria for a 20% rating based on the PT ROMs (active flexion not greater than 60 degrees), despite the remainder of the records and the VA exam which was more proximate to separation documenting improved ROM and warranting a 10% rating.  There was not a preponderance of the evidence for an unfitting lower extremity radiculopathy rising to the level of being unfitting.  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 low back pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hypercholesterolemia (cholesterol of 231) and thoracic syrinx conditions were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Hypercholesterolemia is a laboratory finding and not a physical disability condition eligible for rating.  The thoracic syrinx was a radiographic finding and not a physical disability condition; however, any contribution to thoracolumbar disability was addressed in the back rating discussion above.  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.  As discussed above, PEB reliance on AR 635-40 for rating the neck and back conditions was operant in this case and the conditions were adjudicated independently of that instruction by the Board.  In the matter of the neck condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the back condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a, with no unfitting peripheral nerve rating.  In the matter of the contended hypercholesterolemia and thoracic syrinx 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Neck Pain	5237	10%	
Chronic Back Pain	5237	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140506, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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, AR20150006361 (PD201401977)

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:

Encl						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA