RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03131
BRANCH OF SERVICE:  Army	BOARD DATE:  20150522
SEPARATION DATE:  20040905

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a traditional drilling National Guard E-4 (Cannon Crewmember) medically separated for neck and back pain.  The neck and back 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 U3L3 profile and referred for a Medical Evaluation Board (MEB).  The “multi-level degenerative disc disease of the cervical, thoracic and lumbar spine,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated the neck and back pain as unfitting, rated 10% and 10% respectively, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  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 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 20050729	VA* - (~20 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5299-5242	10%	DDD, Cervical Spine; Scoliosis	5243	20%	20070413	
Chronic Back Pain	5299-5242	10%	DDD of the Thoracolumbar Spine	5243	20%		
Other x 0 (Not In Scope)	Other x 2	
RATING:  20%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20070807 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board noted that the CI was last on active duty on 5 September 2004, but was medically separated from the Army National Guard on 2 September 2005.  Hence, the difference in separation dates between the VA and US Army.

Chronic Neck Condition.  The first record in evidence specific for the neck pain is an orthopedic report dated 24 February 2005 which documented a two year history of neck and back pain.  He was noted to have para-cervical spasm on the right, but full and pain free range-of-motion (ROM).  Reflexes and X-rays were normal.  An orthopedic note dated 17 March 2005 documented than a magnetic resonance imaging (MRI) had shown degenerative disc disease (DDD) at C3-4 and C4-5.  It noted that the physical examination was unchanged and an MEB for the low back pain was initiated.  The narrative summary (NARSUM) was dated 29 April 2005.  The CI reported that his neck pain developed during training the previous summer and that he could no longer wear his body armor.  He was noted to be in no distress and to have a supple neck (implying normal or near normal ROM).  His gait and neurological examination were normal.  On 1 June 2005, the commander noted that the CI was impaired in duty performance by his back, but made no mention of the neck.  A physical therapy (PT) evaluation 3 weeks later and 3 months prior to separation documented flexion reduced to 22 degrees (45 degrees normal) and a combined ROM of 240 degrees (340 normal).  The VA Compensation and Pension (C&P) examination was performed 20 months after separation.  The CI reported moderate pain which limited walking.  On examination, there was no spasm, atrophy, pain with motion, tenderness, guarding, or weakness.  The neurological examination was normal and the ROM slightly reduced with 40 degrees of flexion and a combined ROM of 325 degrees.  An after separation disability application dated 24 March 2009 documented that the CI had worked as a mechanic and driver at an equipment rental company from January 2003 until January 2009, both prior to and following the period of activation.  His duties included carrying jackhammers and scaffolding up to 100 feet and lifting up to 90 pounds, both multiple times a day.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck at 10% using the code 5299-5242 (degenerative arthritis of the spine).  The VA also rated the neck, using after separation evidence, at 20% using the code 5243 (intervertebral disc syndrome).  The ROM values obtained in PT support a 20% rating, but these are not consistent with the objective findings, the orthopedic examination a few months earlier, or with the later VA examination.  The commander did not report any impairment from the neck and the CI did heavy lifting routinely in his civilian job for over 3 years following separation from the Guard.  The Board determined that the PT ROM values were not probative for rating purposes.  The Board found no route to a rating higher than the 10% adjudicated by the PEB.  It also determined that the evidence does not support the presence of an unfitting radiculopathy at 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 neck pain condition.

Chronic Back Condition.  An annual medical assessment dated 28 April 2004 noted that the CI had been diagnosed with scoliosis (an abnormal curvature of the back to one side) in 1996 and had been in a car accident several years previously, but was not symptomatic at the present and was fit for duty.  As noted above, his civilian job involved lifting and carrying heavy objects multiple times a day.  Four weeks later on 22 May 2004, he was referred to orthopedics due to back pain which prevented him from doing sit-ups.  No additional injury to his back was documented.  X-rays of the thoracic and lumbar spine were normal.  He was seen in primary care on 9 July 2004 and noted to have continued pain and a decreased ROM.  The record then falls silent until an orthopedic evaluation on 24 February 2005 which documented a 2-year history of back pain.  Spasm was present in the left thoracic paraspinal region.  Flexion was limited to the mid-shin (greater than 60 degrees), but the ROM was otherwise normal.  The gait and neurological examination were normal.  The examiner noted than an MRI showed DDD at L5S1.  An X-ray showed the scoliosis previously documented, but was otherwise normal.  The NARSUM noted that his pain began in training in the summer of 2004 and that an MRI revealed DDD of the cervical, thoracic, and lumbar spine.  The gait and neurological examination were normal.  The ROM was normal; however, the CI refused to attempt flexion.  The spine and paraspinal muscles were tender to palpation.  The PT evaluation noted 70 degrees of flexion (90 normal) and 215 degrees of combined ROM (240 normal).  At the VA C&P examination performed, the CI reported ongoing back pain.  On examination, spasm, guarding, tenderness, and painful motion were present.  The abnormal curvature of the spine was attributed to the spasm; however, scoliosis had been present for over 10 years and appeared to be independent of the spasm.  The gait and neurological examination were normal.  The ROM was reduced with flexion of 45 degrees and 195 degrees of combined ROM.  He reported that he had lost less than one week of work the past year (from all conditions).  As noted above, the CI continued his civilian job after separation from the Army National Guard and this entailed heavy lifting daily.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10% using the code 5299-5242.  The VA rated the back at 20% using the code 5243, relying on after separation evidence.  Again, the Board noted the inconsistencies between examinations.  It also noted that the CI had minimal disease present on X-ray and MRI, a normal gait, and worked in a physically strenuous occupation before and after his military activation and subsequent separation from the Guard.  The limitation in flexion seen on the VA examination is not consistent with his reported occupation or with a normal gait; it was also remote from separation.  The Board determined that the presence of an unfitting radiculopathy at separation is not supported by the evidence.  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 pain condition.

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 chronic neck pain and chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 20140628, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

DEPARTMENT OF THE ARMY
ARMY REVIEW BOARDS AGENCY
251 18TH STREET SOUTH, SUITE 385
ARLINGTON, VA 22202-3531

06 JUL 2016

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 XXXXXXXXXX, AR20160003318 (PD201403131)

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:

Enclosure
CF:
( ) DoD PDBR
( ) DVA