RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00358
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20021221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Vehicle Mechanic, medically separated for “low back pain [LBP] with radicular symptoms and pain on motion and muscle spasm.  Imaging shows degenerative disc disease (DDD) C5/C6 and L3/L4,” with a disability rating of 20%.

CI CONTENTION:  The CI requests all conditions be reviewed by the Board.  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 - 20021002	VARD - 20021231	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LBP with Radicular Symptoms… Imaging Shows DDD C5/C6 and L3/L4	5299-5295	20%	Lumbar Spine DDD	5292	40%	20021023	
			Cervical Spine DDD with Decreased Sensation in Bilateral Hands	5290	20%		
Bilateral Plantar Fasciitis	Not Unfitting	Bilateral Plantar Fasciitis with Pes Planus Status Post (S/P) Surgical Repair	5276	0%		
Left Rotator Cuff Tendonitis		Impingement Syndrome with Trapezius Strain	5200	20%		
Bilateral Patellar Tendonitis 		Left Knee Tendonitis with Patellofemoral Syndrome	5024	10%		
		Right Knee Tendonitis with Patellofemoral Syndrome	5024	10%		
Essential Hypertension (HTN)		HTN	7101	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  90%	
ANALYSIS SUMMARY:  

LBP with Radicular Symptoms… Imaging Shows DDD C5/C6 and L3/L4.  The PEB combined the low back and cervical symptoms under a single Service disability rating, coded analogously to 5295 for a 20% rating.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. 

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI reported he had low back pain for 2 years, diagnosed as chronic LBP.  In April 2001, he fell while chopping wood and injured his neck.  Radiographs taken at the time were unremarkable.  His neck pain resolved in about a month; however, in October 2001, he was involved in a motor vehicle accident and aggravated his back pain and his neck pain returned.  MRI of lumbar and cervical spine in January 2002 showed degenerative disc disease at L5-S1 and focal disk protrusion at C5-6, and no evidence for neural foraminal narrowing at any level (neck or back).  His condition was treated with medication and physical therapy.  He was not a surgical candidate.  Despite treatment, the neck and back conditions could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for a MEB.  The MEB forwarded lumbar degenerative disk disease causing non-radicular LBP, and cervical degenerative disk disease causing non-radicular LBP for PEB adjudication.  At the MEB examination dated 5 September 2002, the CI reported his LBP was constant, at an intensity of 3/10.  His back pain increased with activity, and was relieved by rest.  His neck pain occurred on average, twice a week, and was exacerbated when wearing Kevlar.  The physical examination was conducted on 25 July 2002, 5 months before separation.  That examination documented tenderness over the midline at the C5-6 and L5-S1 level.  There was no evidence of neurovascular compromise, and motor and sensory function was intact.  Muscle spasm was absent.

Range of motion (ROM) recorded cervical flexion at 10 degrees (normal 45) and combined ROM of 230 degrees (normal 340).  Lumbar spine ROM recorded 100 degrees of flexion (normal 90) with combined ROM of 230 (normal 240).  The examiner noted the CI was unable to perform the duties required by his MOS, primarily because of his lower back pain, and specifically noted bending, lifting and twisting motions caused severe back pain.  These motions were important in the performance of his duty as a mechanic.  The VA Compensation and Pension (C&P) examination was accomplished 2 months after separation.  The CI reported his back and neck was injured in the 2001 MVA, and since then he has had pain down his neck to the upper back and across his shoulders.  He also reported LBP with radiation to the buttocks, and lower extremity.  The physical examination documented cervical spine ROM forward flexion to 40 degrees with pain on motion throughout ROM testing.  Lumbar spine ROM recorded 20 degrees of flexion with painful motion.  

The Board directed its attention to its rating recommendation based on the above evidence.  The 2002 Veterans’ Administration Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of separation, reflected changes to the 5293 code that went into effect in September 2002, 3 months before separation.  There was no evidence this case is affected by that change; therefore, the conditions were adjudicated under the interim and old spine rules.  The 2002 and 2003 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment.  

The PEB bundled the back condition with the neck condition; however, the DA FORM 199 cited a rating of 20%, coded analogously 5295 (lumbosacral strain), citing pain on motion (bending) and muscle spasm.  The cervical degenerative disk disease was noted and the PEB indicated both diagnoses were considered in the rating.  The VA separated the conditions and rated the back condition at 40%, under the LOM code 5292 (severe).  The neck condition was rated 20% based on moderate LOM, under the 5290 code (spine, LOM of cervical).

The Board undertook a careful review of the record and concluded the evidence supported the neck condition was separately unfitting, and proceeded to rate each condition separately.  The Board first undertook the rating of the back.  The NARSUM documented an examination that was performed 5 months before separation.  That examination recorded normal ROM and absence of radicular symptoms.  1 month after MEB ROM exam, the CI presented to the emergency room with report of back spasms and was prescribed muscle relaxant medication and given 72 hour quarters.  There were no ROM measurements documented in the STR with the exception of the MEB examination.  The Board noted the ROM on the C&P evaluation suggested a more severe condition than recorded at the MEB.  The Board unanimously agreed the findings in the C&P evaluation to have the highest probative value as it occurred most proximal to date of separation.  The Board agreed the ROM limitation of the spine at time of separation correlated to a 40% rating under the code 5292.  The Board also considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS); however, there was insufficient evidence to support a higher rating.  There were no other applicable codes to rate the back. 

The Board next proceeded to the rating of the neck condition.  The NARSUM documented cervical spine ROM limited to 10 degrees of forward flexion with a combined ROM of 230 degrees.  A 10% rating under the 5290 code is assigned when LOM is opined to be “slight”.  Based on the ROM measurements recorded at the MEB PT exam, a 30% rating would be justified; however, the Board agreed the findings in the C&P evaluation had the highest probative value as it occurred most proximal to date of separation.  That examination recorded ROM consistent with “slight” LOM; however, it was noted that the ROM was affected by pain, fatigue, and lack of endurance (DeLuca) which likely was considered in the VA’s rating for moderate LOM; therefore, the Board agreed, the condition met the 20% level of disability for “moderate” LOM, coded 5290 at 20%.  After due deliberation, and careful consideration of all available evidence, the Board recommends a 40% for LBP pain coded 5292, and a rating of 20% for neck pain coded 5290.  

Contended PEB Conditions:  Bilateral Plantar Fasciitis, Left Rotator Cuff Tendonitis, Bilateral Patellar Tendonitis, and HTN.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled with the exception of bilateral plantar fasciitis, and none were implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low back pain with radicular symptoms condition, the Board recommends a disability rating of 40%, coded 5292 IAW VASRD §4.71a.  In the matter of the cervical degenerative disk disease condition and IAW VASRD §4.71a, the Board recommends a disability rating of 20%, coded 5290 IAW VASRD §4.71a.  In the matter of the contended Bilateral Plantar Fasciitis, Left Rotator Cuff Tendonitis, Bilateral Patellar Tendonitis, and Hypertension conditions, the Board recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Low Back Pain	5292	40%	
Cervical Degenerative Disk Disease	5290	20%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150526, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160018695 (PD201500358)

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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50% 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 50% 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:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA