RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01169
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050419

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Bradley Linebacker Air Defense System Crewmember, medically separated for “low back pain” and “neck pain,” each separately rated 10%, with a combined disability rating of 20%.

CI CONTENTION:  The CI details employability and seizure activity.  The CI’s 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 - 20050127	VARD - 20060322	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating Neck Pain	5243	10%	DDD, Cervical Spin	5243	20%	20060322	
Chronic Radiating LBP	5243	10%	DDD, Lumbar Spine	5243	40%	20060322	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 70%	

Chronic Radiating Neck Pain. According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck and back condition began in August 2003 when he was injured in an improvised explosive device (IED) attack.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 2 January 2004, 15 months prior to separation, the CI reported the neck pain had resulted in headaches.  The CI reported not being able to turn his head to the left.  Physical examination recorded range of motion as flexion 45 degrees (normal 45) and combined ROM at 235 (normal 340), along with tenderness of the cervical spine.  Radiologic studies in February 2004 showed moderate-to-severe herniation of a cervical intervertebral disc (C5-6), while further studies in September 2004 showed possible degenerative changes of that same disc.  Electro-diagnostic studies on 7 July 2004 were interpreted as negative.  At the Rheumatology examination on 3 November 2004, 5 months prior to separation, the examiner noted that although the CI’s symptoms were consistent with fibromyalgia (with 16 of 18 tender points found), there was no objective evidence of a systemic autoimmune disease or other cause of fibromyalgia.  ROM for the MEB, measured on 10 January 2005, 3 months prior to separation, was recorded as flexion at 40 degrees and combined ROM at 170 degrees.  The MEB NARSUM examination the following day (11 January 2005) noted complaints of constant severe pain from the CI’s neck down to his low back, incompletely relieved with non-opioid pain medications, and aggravated by repeated bending, heavy lifting, impact activities, and standing or sitting for more than 15 minutes.  Physical examination showed tenderness of the cervical spine with palpable spasm of the trapezius muscles.  Neurological examination showed deep tendon reflexes were 2+ throughout, except the brachioradialis (the forearm muscle that flexes the forearm), which had trace positive reflexes bilaterally.  

At the 4 April 2005 VA Compensation and Pension (C&P) evaluation, performed 2 weeks prior to separation, the CI reported pain levels at 6/10 with no radicular pain, but the CI noted some numbness of the left upper extremity when the neck was held in a certain position.  No flares or assistive devices were reported.  Physical exam showed diffuse muscular tenderness over the left upper trapezius.  No abnormal spinal contour, muscle spasm, or guarding was noted.  ROM was recorded as flexion at 45 degrees and combined ROM at 255 degrees (again, normal flexion is 45 degrees and normal combined ROM is 340 degrees)

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5243 (intervertebral disc syndrome), citing the presence of tenderness.  The VA used the same coding (5243) but rated the neck condition 20%, based on the VA C&P examination at separation, citing “…previous x-ray evidence of spasm with abnormal spinal contour, or straightening of the cervical lordosis.”  The panel agreed that a 10% rating, but no higher, was justified for the presence of tenderness, as reported at the MEB, NARSUM, and C&P examinations.  There was no muscle spasm or guarding severe enough to result in abnormal spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula, or evidence of ratable peripheral nerve impairment which would provide for additional rating.  Reported ranges of motion also did not offer a route to a higher rating.  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.  

Chronic Radiating Low Back Pain.  According to STR and the MEB NARSUM, the CI’s neck and back condition began in August 2003 when he was injured in an improvised explosive device (IED) attack.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 2 January 2004, 15 months prior to separation, physical examination showed negative results with provocative testing for nerve root impingement, and tenderness of the spine was recorded.  Radiologic studies in February 2004 showed lumbar (lower back) spondylosis (age related wear-and-tear of the intervertebral discs), while further studies in September 2004 showed minor scoliosis (abnormal lateral curvature) of the thoracic spine (mid-to-upper back) and possible degeneration of a lumbosacral disc (L5-S1).  Electro-diagnostic studies on 7 July 2004 were interpreted as negative.  At the Rheumatology examination on 3 November 2004, 5 months prior to separation, the examiner noted that although the CI’s symptoms were consistent with fibromyalgia (with 16 of 18 tender points found), there was no objective evidence of a systemic autoimmune disease or other cause of his fibromyalgia.  ROM for the MEB was measured on 10 January 2005, 3 months prior to separation, with flexion recorded at 40 degrees (normal 90) and combined ROM at 170 degrees (normal 240).  The MEB NARSUM examination the following day (11 January 2005) noted complaints of constant severe pain from the CI’s neck down to his low back, incompletely relieved with non-opioid pain medications, and aggravated by repeated bending, heavy lifting, impact activities, and standing or sitting for more than 15 minutes.  Physical examination showed tenderness of the spine with palpable spasm of the trapezius muscles.  Provocative testing for nerve root impingement was negative.  Neurological examination showed deep tendon reflexes were 2+ throughout.  There was a slight decrease in sensation along the inside of the left foot, consistent with left L5 nerve root dysfunction.

At the 5 April 2005 C&P evaluation the CI reported pain rated 6-9/10 in severity, with no radicular pain, no neurological symptoms of the lower extremities, and no history of bowel or bladder dysfunction.  Physical examination showed normal neurological findings.  Tenderness of mid- and lower back was noted.  ROM was recorded as flexion at 30 degrees and combined ROM at 170 degrees, with painful motion reported in flexion and extension.  Gait was normal and muscle spasm was noted on flexion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome), citing the presence of tenderness.  The PEB also indicated fibromyalgia was separately unfitting but not ratable due to overlapping symptoms of neck and back pain.  The VA use the same coding for the back (5243) but rated the back condition 40%, based on the C&P examination 2 weeks prior to separation, citing forward flexion of the lumbar spine 30 degrees of less.  The panel noted that the limitation of thoracolumbar flexion (30 degrees) reported in the VA suggested consideration of the next higher rating of 40%.  Panel members agreed that the VA examination, performed 2 weeks prior to separation, was most proximate to the date of separation.  Therefore the panel placed greater probative value on the VA examination. There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the back condition, coded 5243.  

BOARD FINDINGS:  In the matter of the chronic radiating neck pain and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the chronic radiating back pain, the panel unanimously recommends a disability rating of 40%, coded 5243 IAW VASRD §4.71a.  In the matter of the fibromyalgia condition, the panel by majority vote agrees that it cannot recommend it for additional disability rating.  There were 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, and that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Radiating Neck Pain	5243	10%	
Chronic Radiating Back Pain	5243	40%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150611, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170007449, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 50% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency,.

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

Sincerely,					       
Enclosure