RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00976
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050211

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Automated Logistical Specialist, medically separated for “chronic neck and back pain” with a 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 condition(s) at the time of separation.  The panel 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 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 - 20050428	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck and Back Pain…	5242	10%	Disk Dissection L1-2 and L5-S1	5243	20%	20050120	
			Cervical Muscle Spasm	5237	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Neck Pain. The PEB combined the neck and back conditions as a single unfitting condition coded 5242.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the neck and back conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began in May 2004 without specific injury or trauma.  Radiographic studies showed a mild lordosis reversal possibly related to a spasm.  The 1 September 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of constant pain day and night with muscle spasms causing severe neck pain.  The physical examination showed full neck range of motion (ROM).  

At the 20 January 2005 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported severe muscle spasms and pain in the shoulder and neck region.  The physical examination showed muscle spasm pain with “quite a bit of pain at the base of the skull” with motion.  There was full neck ROM.  The examiner opined there was no indication of surgical intervention.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the neck with the back condition and applied a single 10% rating 5242 (degenerative arthritis of the spine), citing forward flexion of 90 degrees with pain.  The VA rated the neck condition 10% coded 5237 (cervical strain), based on the C&P examination 1 month before separation, citing muscle spasm causing pain.  The panel first considered if the neck condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting as established above.  The neck condition was profiled, implicated in the commander’s statement, and failed to meet retention standards.  Members agreed that the functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to perform her MOS and a separate rating is recommended.  The panel agreed that a 10% rating, but no higher, was justified for muscle spasm not resulting in abnormal spinal contour.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the neck condition.  

Back Pain.  According to the STR and the MEB NARSUM, the CI’s back condition began in September 2003 after performing an Army Physical Fitness Test (APFT) sit-up event.  The radiographic studies showed a combination of mild disc height loss, disc desiccation (drying out of the disc) and disc bulge or disc protrusion.  The 1 September 2004 MEB NARSUM examination noted complaints of low back pain.  The physical examination showed forward flexion to 80 degrees (normal 90) with pain.   The 9 September 2004 ROM examination performed by Physical Therapy using an inclinometer and goniometer was normal.  Motion was not limited by pain.     

At the 20 January 2005 C&P evaluation the CI reported chronic low back pain.  The physical examination showed forward flexion to 60 degrees, extension to 10 degrees (normal 30), lateral flexion to 15 degrees (normal 30),  and rotation to 20 degrees (normal 30); combined ROM was 140 degrees (normal 240). The gait was normal.  The examiner opined that no surgery was indicated for this condition.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the neck with the back condition and applied a single 10% rating 5242 (degenerative arthritis of the spine), citing forward flexion of 90 degrees with pain.  The VA rated the back condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 1 month before separation, citing a forward flexion of 60 degrees.  The panel first considered if the low back condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting as established above.  The low back condition was profiled, implicated in the commander’s statement, and failed to meet retention standards.  The panel members agreed that the functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to perform her MOS and a separate disability rating is recommended.  

The panel noted that physical therapy performed a ROM examination using an inclinometer, however, the examiner did not specify the placement of the device or whether a dual inclinometer method was used.  Flexion was reported to be 90 degrees which was not consistent with the subsequent C&P examination (flexion 60 degrees, combined 140 degrees).  The panel considered the physical therapy range of motion performed prior to separation, but noted it was performed by a methodology that did not conform to the VASRD rating formula which is based on a goniometric measurement of thoracolumbar flexion from the vertical plane.  The panel placed higher probative value on the NARSUM and VA examinations based on its compliance with VASRD goniometric measurements.  The panel also deliberated the forward flexion ROM differences between the NARSUM (80 degrees and VA examination (60 degrees).  In consideration of VASRD 4.7 (the higher of two evaluations), the panel noted that the preponderance of evidence (absence of muscle spasm, normal gait, normal spinal contour, and combined ROM of greater than 120 degrees) most closely approximated the functional level for a 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the low back condition, coded 5242.  

BOARD FINDINGS:  In the matter of the neck condition, the panel unanimously agrees that it was unfitting and recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the low back condition, the panel unanimously agrees that it was unfitting and recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Neck Pain	5237	10%	
Back Pain	5242	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150610, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record  

AR20170007354, XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and 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 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