RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00022
BRANCH OF SERVICE:  Army	 SEPARATION DATE:  20040312

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E5, Military Police, medically separated for “chronic neck pain” and “chronic low back pain,” rated 10% and 10%, respectively, with a combined  disability rating of 20%.  

CI CONTENTION:  His conditions continue to worsen.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 based upon a 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:  

SERVICE PEB - 20040109	VARD - 20051122 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5299-5237	10%	[Cervical] Myofascial Pain Syndrome	5237	10%	19971211	
Chronic Low Back Pain…	5237	10%	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Cervical and Lumbar Spine Conditions.  There was a sparse database of temporally probative evidence in this case.  There were ample outpatient notes from the service treatment record (STR) during a 1997-98 period of active duty that documented an onset of neck pain with a fall in March of 1997.  This was associated with some right upper extremity (RUE) radiation; but, there were multiple normal neurological examinations, and none to the contrary.  Magnetic resonance imaging (MRI) demonstrated mild disc disease (“very small” protrusion C4/5 without neural impingement).  There were multiple entries documenting grossly normal or minimally limited range of motion (ROM), and none indicating any significant limitation.  A VA Compensation and Pension (C&P) examination from that period (December, 1997) documented normal ROM and normal neurological findings.  Orthopedic and neurology consultants opined that surgery was not indicated and that the CI was fit for full duty.  There was no STR evidence for any lumbosacral diagnosis or complaints during the 1997-98 period.

There was no interim STR documentation until a “Statement of Medical Examination and Duty Status” dated 5 September 2003.  This documented the development of neck and RUE pain “after wearing military equipment after a prolonged period on 21 June 03 in Iraq.”  It made no mention of any lumbar diagnosis or complaints, and stated that a Medical Evaluation Board (MEB) was indicated for the cervical condition.  There were no available STR entries, from in-theater or post-deployment, for either the back or neck.  The MEB’s physical examination recorded “painful, limited ROM” for the neck with no abnormal description for the back.  The profile and commander’s performance statement referenced both conditions.  The MEB forwarded “cervical degenerative disk disease, and chronic lumbosacral strain” as a single condition to the PEB.  

The MEB’s narrative summary (NARSUM) on 18 September 2003 (6 months before separation) documented a contemporary MRI report of multilevel (C3-7) degenerative disk disease (no mention of neural encroachment), and normal X-ray findings for the lumbar spine.  The examiner noted cervical pain (unquantified) with occasional RUE radiation and “mild subjective numbness;” and, midline non-radiating back pain (unquantified); both “aggravated by extensive activity.”  The physical examination recorded “no tenderness or spasm in the lower back but he does have mild tenderness in the neck” and normal neurological findings (strength, sensation, reflexes) in the upper and lower extremities.  Measured cervical ROM was flexion to 45 degrees (normal), extension to 45 degrees (normal), and bilateral flexion of 20 degrees (normal 45). The examiner stated that thoracolumbar ROM was “normal,” citing flexion to 90 degrees (normal) and bilateral flexion of 30 degrees (normal).  

There was, however, an orthopedic addendum of 20 November 2003 (2 months after the NARSUM) that recorded goniometric measurements for the thoracolumbar spine only.  There was no historical or other physical examination evidence, and there was no explanation of the reason for the isolated addendum or documentation of interim injury or aggravation.  These measurements were considerably worse than those in the NARSUM: flexion to 55 degrees, extension to 20 degrees (normal 30), bilateral rotation to 90 degrees (30 is normal and 90 is anatomically impossible if performed correctly), and bilateral flexion to 45 degrees (normal 30 [45 unusual]); for a combined ROM (corrected to VASRD normals) of 195 degrees.  Of note, the examiner documented possible indicators of unreliable findings (“2/5 Waddell’s signs”).  

The Board directed attention to its rating recommendations based on the above evidence.  The PEB’s 10% rating for the cervical spine was under code 5299-5237 (analogous to cervical strain), and the 10% lumbar rating was under code 5237 (lumbar strain); both citing the NARSUM ROM evidence.    A VA rating decision (VARD) from the 1997-98 mobilization, based on the above 1997 C&P findings, provided a 10% rating of the cervical spine condition under criteria of the VASRD then in effect (superseded in 2003).  The VARD from 2005, charted above and based only on STR evidence, continued the older rating; stating that “changes in [VASRD] evaluation criteria cannot be used as grounds for reduction” unless evidence indicates improvement, and that there had been no such improvement.  There was no evidence to date of any VA spine examination after 1997, no change in the cervical rating on subsequent VARDs, and no evidence of any lumbar spine claim or rating.  

For the cervical spine there was no ROM evidence supporting a VASRD §4.71a rating higher than 10%.  There was no evidence for abnormal gait or contour to support a 20% rating for either spine condition.  There was no documentation of incapacitating episodes or diagnosis of intervertebral disc syndrome for either spine condition that would provide for a higher rating under that formula.  The Board considered whether additional rating could be recommended for the RUE radicular symptoms, but members agreed that neither the requisite functional link to fitness nor the presence of a VASRD ratable deficit were supported by the evidence.  There was conflicting ROM evidence for the lumbar spine.  The NARSUM evidence was consistent with a 10% rating.  The 55-degree flexion in the orthopedic addendum, however, meets the §4.71a criterion for a 20% rating.  Members deliberated the relative probative value of this conflicting evidence in arriving at a recommendation.  

Although the orthopedic addendum provided the only complete set of goniometric measurements IAW VASRD §4.46 (accurate measurement) and was temporally closer to separation, members noted multiple probative value issues with that evidence.  The addendum provided no clinical correlation or explanation for the findings and did not address the cervical condition.  The accuracy of the entries for lateral excursion and especially rotation were significantly suspect, as well as inconsistent with the recorded degree of limitation of flexion and extension; thus, casting doubt on the accuracy of all measurements.  It was also possible that there was some subjective overlay as suggested by the Waddel’s entry.  Furthermore the NARSUM evidence was more clinically aligned with anticipated findings given the clinical acuity in evidence.  The lumbar condition was confined to myofascial strain with no evidence of disc involvement or other acute features; it appeared to arise as a secondary complaint after MEB proceedings were initiated; it was not associated with tenderness or spasm (as would be expected with significant ROM limitation) per the MEB and NARSUM examinations (all of the available evidence); and, the lack of a post-separation VA claim or rating suggested that the condition was not associated with significant disability.  Ultimately, member consensus was that the probative value of the isolated ROM evidence from the orthopedic addendum was insufficient to support a higher recommendation for the lumbar spine condition.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board consensus was that there was insufficient cause to recommend a change in the PEB adjudications of the cervical or lumbar spine conditions.

BOARD FINDINGS:  In the matter of the cervical spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board by a majority vote recommends no change in the PEB adjudication.  The single voter for dissent recommended a 20% rating for the lumbar spine condition and did not elect to submit a minority opinion.   There were no other conditions within the Board’s scope of review for consideration.  

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 20131202, 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 
XXXXXXXXXXXXXXXXXX, AR20160018781 (PD201500022)

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