RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01988
BRANCH OF SERVICE:  Army	BOARD DATE:  20150429
SEPARATION DATE:  20010921

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Signal Support System Specialist) medically separated for neck and back pain.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3U4L4 profile and referred for a Medical Evaluation Board (MEB).  “Cervical herniated nucleus pulposus with chronic neck pain” and “lumbar spine herniated nuclear pulposus with chronic low back pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (reactive airway disease and allergic rhinitis) for PEB adjudication.  The Informal PEB adjudicated the neck and back conditions as unfitting, rated 10% each with likely application of the 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:  “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 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 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 20010823	VA* - (~22 Months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5293	10%	Arthritis of the Cervical Spine	5003-5290	10%	20030718	
Chronic Low Back Pain…	5293	10%	Degenerative Disc Changes…	5003-5292	10%	20030718	
Reactive Airway Disease	Not Unfitting	Reactive Airway Disease	6699-6602	10%	20030718	
Allergic Rhinitis	Not Unfitting	Allergic Rhinitis	6522	0%	20030718	
Other x 0 (Not In Scope)	Other x 1	
COMBINED RATING:  20%	COMBINED RATING: 30%	
*Derived from VA Rating Decision (VARD) dated 20030912 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Neck Condition.  The narrative summary (NARSUM) notes the CI injured his neck during deployment in 1998 lifting a radio.  Notes in the service treatment record (STR) indicated he initially reported neck pain without radiation to the upper extremities (UE).  At a primary care visit on 5 June 2000 the CI reported neck pain that caused headaches and at times radiated down the left UE (LUE).  He was treated with anti-inflammatory medications and given a 2-week profile.  The CI was deployed again and following return, a 2 February 2001 magnetic resonance imaging scan (MRI) of the cervical spine showed a focal disc herniation at C5-C6 with moderate to severe neuroforaminal (bony canal through which the spinal nerves exit) stenosis.  At an orthopedic evaluation on 13 March 2001, the CI reported daily neck pain with right shoulder pain.  The exam noted full neck range-of-motion (ROM) with pain and normal strength, sensation, and reflexes of the bilateral UE.  A neurosurgical (NS) consult was requested in April 2001.  At the evaluation the examiner noted neck pain that radiated to the LUE with a small right UE component, without weakness or numbness.  The exam noted no tenderness to palpation.  There was normal UE strength, sensation, and reflexes.  No surgery was recommended and the CI was referred to physical therapy (PT) with consideration of an epidural steroid injection (ESI) if the pain did not resolve.

At the MEB examination dated 9 July 2001, 2 months prior to separation, the CI reported neck pain.  The MEB physical exam noted normal alignment of the spine.  A NARSUM addendum dated 13 August 2001 noted normal UE strength and sensation and equal reflexes bilaterally.  Cervical ROM noted normal flexion, extension and lateral flexion, with decreased right rotation of 50 degrees and left of 75 degrees, with painful motion noted.

At the VA Compensation and Pension (C&P) examination on 18 July 2003, 22 months after separation, the CI reported neck and right shoulder pain.  The examiner noted that a repeat MRI on 4 March 2003 showed degenerative disc disease and arthritis without spinal stenosis or nerve impingement.  The exam noted normal flexion and extension with decreased right lateral flexion of 25 degrees and left of 20 degrees and 65 degrees of rotation bilaterally, with painful motion.  Strength and sensation of the bilateral UE was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5293 (Intervertebral disc syndrome-[IVDS]).  The VA also rated the neck condition 10%, coded as 5003-5290 (limited cervical motion with degenerative arthritis).  The Board noted that between the CI’s DOS and the original VARD on 12 September 2003, changes were implemented in the VASRD rules for rating the spine effective on 23 September 2002 until 25 September 2003 (Interim spine rules).  The changes affected the rating criteria of the 5293 code utilized by the PEB, but did not affect the VA coding choice of 5290.  However, the Board must base its rating recommendations on VASRD rating criteria in effect on the DOS.  Members agreed that the evidence in record supports a 10% rating for the neck condition coded as 5290 for mild limited cervical ROM, analogous to 5293 for mild IVDS, or analogous to 5295 (lumbosacral strain) for characteristic pain on motion.  The Board reviewed to see if a higher evaluation was achieved with any other coding approach, but there was no evidence of moderate, recurrent IVDS attacks of symptoms including radicular pain and muscle spasm, UE reflex changes, or neurological findings; frequent cervical muscle spasm; moderately limited cervical ROM; vertebral fracture; or, ankylosis to provide a higher rating.  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 adjudication for the neck condition.

Back Condition.  The narrative summary (NARSUM) notes the CI injured his lower back in the same 1998 lifting incident noted above.  Notes in the STR indicated he initially reported localized low back pain (LBP) without lower extremity (LE) symptoms.  At a PT visit the CI reported the LBP radiated to the right posterior mid-thigh and at a primary care visit on 23 June 2009 he reported numbness down the backs of both legs; both exams noted normal strength and sensation of the LEs.  Lumbar MRI on 27 March 2001 noted broad based disc bulges with mild to moderate left neuroforaminal stenosis without evidence of central spinal stenosis.  At an orthopedic evaluation on 10 April 2001 the CI reported daily LBP.  The exam noted full ROM with tenderness to palpation (TTP) of the lumbar spine with normal strength and reflexes of both LEs.  The surgeon offered ESI, but the CI wanted to consider surgical options.  At the NS evaluation the examiner noted that lumbar X-rays were normal and the MRI did not indicate significant nerve impingement.  The exam noted a normal gait and stance.  There was no TTP and there was normal strength, sensation, and reflexes of the LEs, with negative straight leg raise bilaterally.  The surgeon indicated that the chance of surgical benefit was less than 50% and the CI declined surgery.

At the MEB examination on 9 July 2001, 2 months prior to separation, the CI reported back pain.  The MEB physical exam noted normal spinal alignment.  A NARSUM addendum on 13 August 2001 noted lumbar flexion of 60 degrees, normal extension and normal lateral flexion bilaterally, with painful motion.

At the VA C&P examination on 18 July 2003, 22 months after separation, the CI reported LBP that radiated alternately to the right and left LEs, aggravated by coughing, sneezing or squatting.  The CI reported he had two ESIs and PT without improvement.  He did not use a cane or a crutch.  On exam gait was normal and the CI could heel and toe walk and get off and on the exam table without difficulty.  Lumbar ROM noted flexion of 70 degrees, extension of 20 degrees, lateral flexion of 25 degrees bilaterally and normal bilateral rotation.  There was tenderness to palpation of the lumbar spine without muscle spasm and normal bilateral LE strength and sensation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5293 (Intervertebral disc syndrome).  The VA also rated the back condition 10%, coded as 5003-5292 (limited lumbar motion with degenerative arthritis).  As noted above in the rating discussion of the neck condition, VASRD rules for rating the spine changed between the CI’s DOS and the original VARD.  However, the Board must base its rating recommendations on VASRD rating criteria in effect on the DOS.  Members agreed that the evidence in record supports a 10% rating for the back condition coded with 5292 for mild limited lumbar ROM, 5293 for mild intervertebral disc syndrome, or 5295 (lumbosacral strain) for characteristic pain on motion.  The Board reviewed to see if a higher rating was achieved with any other coding approach, but there was no evidence of moderate recurrent attacks of IVDS symptoms including sciatica and muscle spasm, LE reflex changes, or neurological findings; lumbar muscle spasm; moderately limited lumbar ROM; vertebral fracture; or ankylosis to provide a higher rating.  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 adjudication for the back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the asthma and allergic rhinitis 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 NARSUM notes that the CI was diagnosed with allergies and asthma while deployed.  At a treatment visit dated 13 July 1998 the CI reported wheezing and chest pain since return from deployment and was given a profile and a bronchodilator inhaler.  A note dated 8 January 1999 documented a prescription refill for a bronchodilator inhaler as needed.  At a treatment visit on 30 April 1999, the CI reported a 4-year history of asthma treated with a bronchodilator inhaler daily and a 2-week history of itchy eyes, scratchy throat and runny nose.  He reported the day before he experienced a wheezing episode while cutting the grass.  The provider’s plan included use of an anti-inflammatory inhaler.  A treatment visit for musculoskeletal symptoms on 23 June 2000 noted use of a nasal steroid inhaler and nasal saline.  At the MEB examination 2 months prior to separation, the CI reported using his bronchodilator inhaler three times a day.  The lung exam was normal, but indicated the CI had used his inhaler that day.  Pulmonary function testing for the MEB on 31 July 2001 was within normal, but noted a significant response to bronchodilator medication.  There is a temporary P2 profile in record dated 7 August 1998 for asthma.  Another temporary P2 profile dated 30 April 1999 listed reactive airways disease due to allergies and limited the CI from raking leaves, grass, or mowing.  The CI successfully completed a standard physical fitness test (APFT) on 21 February 2001.  A performance report for the period July 2000 through February 2001 indicated successful performance in all areas and the CI was rated “among the best.”

The allergic rhinitis condition was not profiled or implicated in the commander’s statement.  The asthma condition was permanently profiled and the commander’s statement noted that the CI’s asthma condition required medication, monitoring, and access to a hospital that could not be guaranteed in the field or in a wartime environment.  However, the last treatment visit for the asthma condition documented in the STR was in April 1999 (29 months prior to separation).  The evidence in record indicates the CI had been on temporary P2 profiles for the asthma condition; however a “2” profile indicates a medical condition that may require some limitations, but does not necessarily preclude continued duty performance.  The MEB NARSUM noted daily use of asthma medication, but the CI was able to complete a standard APFT in February 2001 and the February 2001 non-commissioned officer evaluation report indicated successful duty performance.  The Board also considered that there was no performance based evidence from the record that the asthma condition or allergic rhinitis conditions significantly interfered with satisfactory duty performance prior to the CI’s referral for a MEB for the musculoskeletal conditions and IAW DoDI 1332.38, E3.P3.3.3, adequate performance until referral supports a fit for duty determination.  The Board concluded that the evidence provided strong support for the conclusion that neither of the asthma or allergic rhinitis conditions was unfitting for continued military service at the time of separation.  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 asthma or allergic rhinitis 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 and back conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudications.  In the matter of the contended asthma and allergic rhinitis 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 20140506, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20150013524 (PD201401988)

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:

Encl						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA