RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02258
BRANCH OF SERVICE:  Army	BOARD DATE:  20150213
SEPARATION DATE:  20061003

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-8 (Administrative Specialist) medically separated for chronic neck and back pain.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3U3L3 profile and referred for a Medical Evaluation Board (MEB).  “Cervical degenerative disk disease (DDD), lumbar DDD, and obstructive sleep apnea (OSA) requiring long-term use of continuous positive airway pressure” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded six other conditions (see rating chart below) for PEB adjudication as medically acceptable.  The Informal PEB (IPEB) adjudicated “chronic neck pain secondary to degenerative arthritis and multilevel degenerative disc disease” as well as “chronic low back pain secondary to degenerative arthritis and multilevel degenerative disc disease” as unfitting, rated 10% and 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  Both conditions were determined to have existed prior to service, but to have been permanently service aggravated.  The remaining conditions were determined to be not unfitting.  The CI initially demanded a Formal PEB; however, he subsequently withdrew his request 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/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 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:

Revised PEB – Dated 20060912	VA* - (~5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5242	10%	Chronic Neck Sprain…	5237-5242	10%	20070306	
Chronic Low Back Pain…	5242	10%	Chronic Lumbar Strain…	5237-5242	10%	20070306	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea with CPAP	6847	---%	20070306	
Depression	Not Unfitting	Bipolar I Disorder	9432	40%	20070306	
Status Post Left ACL Reconstruction…	Not Unfitting	Chronic Left Knee Sprain, Status Post ACL…	5260	10%	20070306	
Dyslipidemia	Not Unfitting	No VA Placement	
Hallux Valgus	Not Unfitting	Hallux Valgus, Left Foot…	5280-5284	0%	20070306	
		Hallux Valgus, Right Foot…	5280-5284	0%	20070306	
Irritable Bowel Syndrome.	Not Unfitting	Irritable Bowel Syndrome	7319	---%	20070306	
Hypertension	Not Unfitting	Hypertension	7101	---%	20070306	
Other x 0 (Not In Scope)	Other x 7 	
RATING:  20%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20070608 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Chronic Neck Pain Condition.  The first record in evidence for the neck was a visit to physical therapy on 5 October 2004 for traction.  He reported that he had been activated in April and the onset of pain was in May after being engaged in construction.  An X-ray on 17 December 2004 showed multi-level degenerative joint disease (DJD).  Magnetic resonance imaging (MRI) on 23 May 2005 showed multi-level DDD with disc bulging noted as well.  He was treated with medications, duty limitations, and physical and chiropractic therapy without sufficient improvement to return to full duty.  Range-of-motion (ROM) evaluation on 11 March 2006 for the neck and back was significant for over-reaction as well as three other signs of non-organic pain.  The orthopedic MEB addendum was dated 13 March 2006.  The CI reported neck pain for one year.  He had full ROM and normal gait and neurological examinations.  The ROM was again measured on 28 June 2006 (below) and one sign of non-organic pain was present.  The gait and neurological examination were normal.  The narrative summary (NARSUM) was dated 29 June 2006.  The CI noted constant neck pain aggravated by prolonged walking.  He denied radicular symptoms.  The gait, posture, and neurological examination were normal.  The ROM is charted below.  Lateral flexion produced neck pain.  At the VA Compensation and Pension (C&P) examination performed on 6 March 2007, 5 months after separation, the CI reported an initial neck injury in 1977.  He reported flares of his pain 5 days a week which lasted about an hour.  He denied incapacitation.  On examination, he could heel and toe walk without difficulty.  He was observed to freely move his neck while the examiner was moving back and forth and to have no trouble removing his shoes and socks.  His gait and neurological examination were normal.  The ROM was normal although the examiner determined a 10 degree loss bilaterally for rotation after repetition.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Cervical ROM
(Degrees)	MEB 2808 ~7 Mo. Pre-Sep	Ortho ~3 Mo. Pre-Sep	VA C&P ~5 Mo. Post-Sep	
Flex (45 Normal)	40	45	45	
Combined (340)	280	320	340	
Comment	Positive non-organic signs of pain	Painful lateral flexion	10 degree loss for DeLuca	
§4.71a Rating	10%	10%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the neck at 10% using the code 5242 (degenerative arthritis of the spine).  The VA also used the code 5237 (cervical strain).  The Board considered the coding options available for the neck condition, but found no route to a rating higher than the 10% adjudicated by both the PEB and VA.  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 neck condition.

Chronic Low Back Pain Condition. The CI attributed his low back pain (LBP) to the same construction activity that lead to his neck discomfort.  An X-ray on 10 August 2005 was significant for multi-level DJD.  An MRI on 19 January 2006 showed multi-level DDD and disc herniation at L2-3 and L5-S1.  The CI was also treated for his back pain with medications, duty limitations, and physical and chiropractic therapy without adequate improvement to meet duty requirements.  On 14 March 2006, ROM measurements, charted below, were accompanied by some over-reaction and three additional signs of non-organic pain.  The orthopedic MEB addendum was dated 13 March 2006.  The CI reported back pain for a year.  He had full ROM and normal gait and neurological examination.  The ROM was again measured on 28 June 2006 and one sign of non-organic pain was present.  The gait and neurological examination were normal.  Spasm was absent.  The NARSUM was dated 29 June 2006.  The CI noted back pain aggravated by prolonged standing and walking.  He denied radicular symptoms.  The gait, posture, and neurological examination were normal.  The ROM is charted below.  Flexion and right rotation produced “just stiffness.”  Mild tenderness was present, but spasm was not.  At the VA C&P examination performed on 6 March 2007, 5 months after separation, the CI reported that the pain did not radiate and denied incapacitation.  The LBP was aggravated by activity and remaining in one position.  He could heel and toe walk without difficulty.  He was observed to have no trouble bending and removing his shoes and socks.  His gait and neurological examination were normal.  The ROM was normal without further loss after repetition.  Some lumbar tenderness was noted.  No deformities of the spine were present (abnormal contour, posture).  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT~7 Mo. Pre-Sep	Ortho ~3 Mo. Pre-Sep	VA C&P ~5 Mo. Post-Sep	
Flexion (90 Normal)	85	85	80	
Combined (240)	215	230	230	
Comment	Positive non-organic signs of pain	“Stiffness”	No spasm, no DeLuca	
§4.71a Rating	10%	10%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10% using the code 5242 (degenerative arthritis of the spine).  The VA also rated the back at 10% using the 5242 code as well as 5237 (lumbosacral strain).  The Board considered the coding options available for the back condition, but found no route to a rating higher than the 10% adjudicated by both the PEB and VA.  The Board also noted that the neurological examination was consistently normal.  The Board concluded therefore that an unfitting radiculopathy was not present at separation and could not be recommended for additional disability 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 fitness determination for the back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the OSA, depression, left knee (ACL), dyslipidemia, hallux valgus, and IBS 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 OSA was found to fail retention standards and issued a P3 profile.  However, it is a condition routinely found not unfitting and all services deploy members with this condition if adequately treated.  The left knee condition had been issued temporary L2 profiles, but it was not cited on the final permanent profile, specifically noted by the commander, or found to fail retention standards.  The depression was noted by the commander, but the MEB psychiatrist determined that the CI was not unfit and it was not found to fail retention standards by the MEB.  The CI was admitted for depression while in the MEB process; however, the MEB and final profile, S1, were both accomplished after he had been discharged from the hospital.  The Board noted that the CI was never issued a profile less than S1.  Dyslipedemia is a laboratory finding and is not a ratable condition.  The remaining conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All conditions 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 other than temporarily.  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 and back conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA, depression, status post ACL reconstruction, dyslipidemia, hallux valgus, and IBS 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 201140521, 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 XXXXXXXXXXXXXXX, AR20150010593 (PD201402258)

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			    
						         
CF: 
(  ) DoD PDBR
(  ) DVA