RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00599
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20050110

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Human Intelligence Collector, medically separated for “chronic subjective low back pain” and “chronic subjective pain due to HNP C5-6 and C6-7,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  “Review all conditions.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the Panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical conditions at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service connected conditions after separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel 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 - 20041123	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Low Back Pain	5243	10%	No VA Examination in Evidence	
Chronic Subjective Pain due to HNP C5-6 and C6-7	5243	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Subjective Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) treatment for back pain began after a sports injury in 2003, but a more acute onset with a strain injury was documented in May 2004 (8 months before separation).  This was associated with pain radiation down the left lower extremity (LLE) without subjective weakness or sensory complaints.  Magnetic resonance imaging (MRI) demonstrated disc disease (L4/5 and L5/S1 with mild bilateral neural encroachment).  There were multiple STR clinical entries that documented normal neurological findings (with 5/5 strength), and there were none to the contrary.  There were some earlier entries that documented grossly normal range of motion (ROM), but there was no ROM evidence from later entries; and, the MEB’s DD Form 2808 physical examination recorded “moderate” ROM limitation.  There was STR documentation of normal gait and spinal contour, with no contrary entries; and, there was no STR documentation of incapacitating episodes.  Surgery was not recommended.

The 15 August 2008 NARSUM examination, 5 months before separation, documented “slight/constant” back pain with LLE radiation (no mention of subjective motor or sensory complaints) that prohibited basic soldiering activities, but permitted substitution of walking for the aerobic event for fitness testing.  The physical examination recorded a normal gait and spinal contour, no tenderness, some spasm, and normal neurological findings (5/5 strength, intact sensation, symmetric reflexes).  Measured ROM for the MEB was provided by occupational therapy (OT), contemporary with the NARSUM; and, documented flexion to 45 degrees (normal 90) and a combined ROM of 185 degrees (normal 240).  No VA claim, examination, or clinical notes were on file; and, there was no other evidence after separation in this case.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating under code 5243 (intervertebral disc syndrome), citied ROM “limited by pain” and no neurologic abnormality.  The only ROM evidence in this case that was compliant with VASRD §4.46 (accurate measurement) was the OT evaluation.  The documented flexion to 45 degrees satisfies the VASRD §4.71a 20% criterion of “flexion ... greater than 30 degrees but not greater than 60 degrees.”  There was no documentation of incapacitating episodes that would provide for a higher rating under that formula.  

The panel also considered if additional service rating was justified for peripheral nerve impairment due to the LLE radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The intermittently documented sensory impairment had no functional implications, and there was no objective evidence of motor weakness which would have impacted military occupation-specific activities; therefore members concluded that additional rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the chronic subjective low back pain condition under code 5243.   

Chronic Subjective Pain due to Herniated Nucleus Pulposus (HNP) C5-6 and C6-7.  The CI complained of an atraumatic onset of neck pain in 2003 with radiation down his (dominant) left upper extremity (LUE).  He reported subjective LUE weakness, but denied sensory complaints per STR clinical notes.  An MRI demonstrated disc disease (“small” protrusions at C5/6 and C6/7 with “mild” left neural impingement).  Electrodiagnostic testing (EMG) was interpreted as a “mild left C6/7 cervical radiculopathy” that was improved on a follow-up study.  There were multiple STR clinical entries that documented normal neurological findings (5/5 strength), with none to the contrary.  An OT entry documented normal measured grip strength of the left hand as well as normal fingertip sensation to specialized testing.  There was STR documentation (including the DD Form 2808 physical examination) of grossly normal ROM, and no entries that indicated any significant ROM limitation.  There was no STR indication of abnormal spinal contour or documentation of incapacitating episodes.  Surgery was not recommended; conservative treatment did not result in sufficient improvement to allow unrestricted duty.

The NARSUM documented “slight/intermittent” neck pain with LUE radiation (subjective weakness and sensory impairment) and did not differentiate cervical functional limitations from those noted above for the back.  The physical examination recorded a normal spinal contour without mention of spasm or tenderness, and normal neurological findings (5/5 strength [including grip], intact sensation, symmetric reflexes).  ROM measured in degrees by OT (as above) was flexion to 35 (normal 45) with a combined ROM of 200 (normal 340).  As above, there was no VA or other evidence after separation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating under code 5243 cited “normal” cervical ROM without spasm or tenderness; and, included language indicating that the radiculopathy was considered.  As with the lumbar rating, the only §4.46-compliant ROM evidence was from the MEB OT evaluation.  The documented flexion to 35 degrees satisfies the §4.71a 10% criterion of “flexion ... greater than 30 degrees but not greater than 40 degrees;” and, the combined ROM of 200 degrees likewise satisfies the 10% criterion of “greater than 170 degrees but not greater than 335 degrees.”  There was no evidence for abnormal contour to support a rating higher than 10%, and no documentation of incapacitating episodes that would provide for a higher rating under that formula.  

Under the same standards as presented for the lumbar rating, the panel also considered if additional rating was justified for peripheral nerve impairment due to the LUE radiculopathy.  Although there were subjective neurological complaints for the dominant extremity, and EMG confirmation of some nerve involvement, it remained that there was no objective evidence (including the specialized and significantly probative OT evidence) of sensory or motor impairment that would have significantly impacted military occupation-specific activities.  Members thus agreed that additional service disability rating was not justified on this basis.  After due deliberation, considering all evidence and conceding reasonable doubt, the panel recommends a 10% rating for the cervical spine condition under code 5243.

BOARD FINDINGS:  In the matter of the chronic subjective low back pain condition, the panel, by a majority vote, recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the cervical spine condition, the panel unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  The panel majority 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 his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Vertebral Disc Disease, Lumbar Spine	5243	20%	
Vertebral Disc Disease, Cervical Spine	5243	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150604, w/attachments
Exhibit B.  Service Treatment Record

MINORITY OPINION:  

The minority dissent with the majority vote was based on the totality of the evidence in the STR related to the lumbar condition.  The majority based their 20% lumbar rating recommendation on a single OT measurement of flexion to 45 degrees which was not corroborated by the totality of the evidence.  

The NARSUM pain rating of “slight/constant” was not congruent with the measured ROM evidence on which the majority recommendation rests; and, the NARSUM physical findings of a normal gait and normal spinal contour without tenderness (despite the somewhat paradoxical note of spasm) were likewise incongruent with such significant ROM limitation.  

Although there was no specific documentation of ROM observations in later STR entries, there was no indication that ROM limitation to the degree reflected by the OT measurements was present.  Earlier entries, however, confirmed that ROM had normalized after the initial injury (July 2003, 18 months before separation); and, no further treatment was in evidence until the CI reinjured his back in May 2005 (8 months before separation).  In June 2005, the CI reported “his back pain has calmed down” with no positive examination findings; and, in July 2005 he reported “minimal back pain,” again with no positive findings.  After that, there was no evidence of treatment for the back over the intervening 6 months to separation, and no evidence of treatment after separation.  

The minority member thus finds ample evidence mitigating the single data point (OT flexion measurement) on which the majority recommendation depends, and contends that the preponderance of evidence is more consistent with a 10% rating.  The combined ROM of 185 degrees satisfies criteria for a VASRD rating of 10%, and there was no abnormal gait or contour to support a 20% rating.  

The minority voter finds insufficient reasonable doubt to sustain the majority recommendation. The totality of the evidence provides ample support for a conclusion that the PEB’s 10% rating was reasonable and fair.  

The Secretary is respectfully requested to consider the minority recommendation that the CI’s prior determination be modified as follows:

CONDITION	VASRD CODE	PERMANENT RATING	
Vertebral Disc Disease, Lumbar Spine	5243	10%	
Vertebral Disc Disease, Cervical Spine	5243	10%	
COMBINED	20%	

AR20170006458, XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and by minority vote, found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation, minority opinion and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure