RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02578
BRANCH OF SERVICE:  Army	BOARD DATE:  20150212
SEPARATION DATE:  20070321

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Health Care Specialist) medically separated for lumbar and cervical spine conditions, which could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty or physical fitness standards.  She was issued a permanent U3-L3 profile and referred to a Medical Evaluation Board (MEB).  The conditions “cervicalgia” and “low back pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, and no other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic low back pain...” and “chronic neck pain…” as unfitting, rated 10% and 0% (respectively), citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy for the lumbar condition and criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD) for the cervical condition.  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/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:

IPEB – Dated 20070301	VA* (5 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	10%	DJD, Thoracic and Lumbar Spine	5237	20%	20070823	
Chronic Neck Pain…	5299-5237	0%	DJD, Cervical Spine	5243	10%		
Other x 0	Other x 6	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20071121 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Lumbar Spine Condition.  Although the narrative summary (NARSUM) dates the onset of both the cervical and lumbar complaints to a fall in July 2006, the service treatment record (STR) contains an entry from May 2006 with a complaint of “mild low back pain and big toe numbness bilaterally.”  Grossly normal thoracolumbar range-of-motion (ROM) and normal gait were recorded in all STR entries from this period.  Magnetic resonance imaging (MRI) in September 2006 noted degenerative changes and a “very small” disc protrusion impinging on the left nerve root of L4/5 and “minimal” disc disease at L5/S1.  Although the CI complained of left sciatic radicular pain, paresthesias, and subjective weakness; there are no STR entries documenting any abnormal neurological findings or consideration of surgery.  Epidural injections were unsuccessful at providing adequate relief, although the last STR outpatient note comments that the CI was “now feeling better.”  There are no STR entries documenting abnormal gait or spinal contour, use of ambulatory assistive devices, significant ROM impairment, or episodes of incapacitation.

The NARSUM conducted on 5 February 2007 (6 weeks prior to separation); and, documents continuing back (and neck) pain with intermittent radicular symptoms.  The severity and frequency of pain was not specified; and, the NARSUM did not detail functional limitations, other than an inability to meet training requirements or “engage in strenuous physical activity.”  The NARSUM physical exam (without comment on gait, spinal curvature, or spasm) documented lumbar spinal tenderness and normal neurological findings with 5/5 strength in all groups (upper and lower).  Measured ROM per the NARSUM was 50 degrees flexion (normal 90 degrees) and combined ROM of 215 degrees (normal 240 degrees).

A VA Compensation and Pension (C&P) examination conducted on 23 August 2007 (5 months after separation), characterized the pain (cervical and lumbar) as “severe ...  constant ... daily to 3-4 times per week depending on activity” rendering the CI “unable to walk more than a few yards” and requiring the use of a cane.  The VA physical exam documented spasm, guarding, and tenderness; although answering “No” to a template question if these findings were “severe enough to be responsible for abnormal gait or abnormal spinal contour”; but, nevertheless recording “antalgic” gait and “lumbar flattening.”  Detailed and normal neurologic findings for strength (5/5), sensory (2/2), and reflexes (2+ symmetric) of all upper and lower muscle groups was documented.  Measured ROM per the C&P examiner was 40 degrees flexion and combined 170 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogously to 5237 (lumbosacral or cervical strain) was supported by the USAPDA pain policy; but, it was not consistent with VASRD §4.71a criteria for the ROMs under consideration.  The NARSUM flexion of 50 degrees (the only measured ROM evidence from the service) supports a 20% rating IAW §4.71a.  The VA’s rating under code 5237 invoked the 40 degrees flexion from the C&P exam in support of its 20% rating.  The Board considered whether an additional rating could be recommended under a peripheral nerve code for the residual radiculopathy at separation; but, there was no ratable deficit in evidence and no functional link to fitness.  There was no documentation of incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the lumbar spine condition; proposing code 5242 (degenerative arthritis of the spine) for its clinical compatibility.

Cervical Spine Condition.  The earliest STR entry for this condition is from May 2006, relating neck pain after a ruck march and documenting full and painless cervical ROM (findings which were repeated 2 weeks later).  The only subsequent STR entry relating gross ROM observations was from November 2006 (4 months prior to separation), and also documents “full” ROM.  
A cervical MRI noted disc disease with focal degenerative changes (“mild” neuroforaminal narrowing [right C3/4, left C5/6]), and there were no radicular complaints or abnormal neurologic findings evidenced in the STR.

The NARSUM description of pain and limitations is incorporated in the lumbar topic, and the examiner specifically documented the absence of any upper extremity radicular complaints.  The physical exam specified cervical spine tenderness, and documented normal neurological findings as per the lumbar evidence.  Measured ROM was 45 degrees flexion (normal) and combined 340 degrees (normal).

The post-separation VA C&P description of pain and limitations is incorporated in the lumbar topic, as are the normal neurologic findings.  The VA physical exam documented cervical spasm, guarding, and tenderness.  Measured ROM was 30 degrees flexion and combined 185 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s DA Form 199 cited the normal ROM from the NARSUM in support of the 0% rating under 5299-5237; but, did not account for the NARSUM finding of tenderness which is a 10% criterion under §4.71a.  The VARD stated “evaluation of 10 percent is granted for forward flexion of the cervical spine greater than 30 degrees”; but, the C&P flexion was 30 degrees, which meets the §4.71a 20% threshold.  Given that the NARSUM normal ROM evidence was corroborated by STR evidence over the preceding 12 months, members agreed that the single recorded flexion by the VA (just meeting the threshold) was insufficiently probative to support a 20% recommendation.  Members did agree, however, that a 10% rating should be conceded on the basis of the NARSUM evidence for tenderness, corroborated by the spasm (another 10% criterion) and tenderness documented by the C&P examiner.  After due deliberation, considering all evidence and with deference to reasonable doubt, the Board recommends a 10% rating for the cervical spine condition; proposing code 5242 as per the lumbar recommendation.

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 the USAPDA pain policy for rating the lumbar condition was operant in this case, and it was adjudicated independently of that policy by this Board.  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242, IAW VASRD §4.71a.  In the matter of the cervical spine condition, the Board unanimously recommends a disability rating of 10%, coded 5237, IAW VASRD §4.71a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease, Lumbosacral Spine	5242	20%	
Degenerative Disc Disease, Cervical Spine	5242	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140602, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX     
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, AR20150010915 (PD201402578)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% 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 30% 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:

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