RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01506
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050725

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Motor Transport Operator, medically separated for neck pain and low back pain, rated at 10% each with a combined disability rating of 20%.  

CI CONTENTION:  “Review all conditions.  To include the TBI received in Iraq.”  The 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 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 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 - 20050523	VARD - 20051206	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Cervical Spine Pain	5237	10%	Cervical Degenerative Disc Disease	5237	10%	20050804	
Chronic Low Back Strain ... Intermittent Radiculitis		10%	Lumbosacral Degenerative Disc Disease ... Right Leg Radiculopathy	5243	20%		
Migraine	8100	--%	Migraine	8100	10%		
Hyperlipidemia	Not Unfitting	No VA Entry		
Pes Cavus		Bilateral Pes Cavus	5278	0%		
Major Depressive Disorder		Major Depressive Disorder	9434	10%	20050729	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Cervical Spine.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had an atraumatic onset of neck pain in 2002 that was exacerbated by a strain injury during a 2004 deployment to Iraq.  This persisted on redeployment and was not associated with any significant radicular complaints.  Magnetic resonance imaging (MRI) demonstrated “early” degenerative disc disease (DDD) at C4/5 (no herniation or neural encroachment).  Electro-diagnostic testing was normal.  There were multiple STR clinical entries that documented normal neurological examinations (5/5 strength), and no contrary entries.  Various entries documented normal or near-normal ROM [range of motion], both grossly observed and measured, and there were no entries that indicated more significant ROM limitation.  There was STR documentation of normal spinal contour, with no contrary entries; and, there was no documentation of incapacitating episodes.  Surgery was not indicated; conservative treatment did not result in sufficient improvement to allow unrestricted duty; and, the CI was referred for MEB.  The MEB forwarded “degenerative disk disease of the cervical spine at C4-5” to the PEB.  

The 25 March 2005 MEB NARSUM examination, 4 months before separation, documented persistent neck pain (severity and functional limitations not elaborated) without note of radiation or neurological symptoms.  The physical examination recorded tenderness, “some” spasm, “full” ROM, and normal neurological findings.  There were orthopedic and neurosurgical addendums to the NARSUM that were directed primarily at the lumbar condition (as below), but they corroborated the NARSUM and other evidence with regard to the cervical condition.  

At the 8 August 2005 VA Compensation and Pension (C&P) examination, 2 weeks after separation, documented non-radiating pain with “no other problems related to his neck.”  The physical examination recorded “tightness” with no other findings and normal neurological testing.  Measured ROM was flexion to 40 degrees (normal 45) with a combined ROM of 235 degrees (normal 340), specifying painful motion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10% coded 5237 (cervical or lumbar strain), citing full range of motion, tenderness to palpation and spasm.  The VA rated the neck condition 10%, coded 5237 (cervical or lumbar strain), citing “flexion ... greater than 30 degrees but not greater than 40 degrees.”  There was no ROM evidence supporting a rating higher than 10%, no evidence for abnormal spinal contour to support a 20% rating, no evidence for ratable peripheral nerve impairment that would provide for additional rating, and no documentation of incapacitating episodes or diagnosis of intervertebral disc syndrome that 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 Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the cervical spine condition.  

Low Back Strain with Intermittent Radiculitis.  The CI had a history of chronic back pain with prior injuries that was also exacerbated by a strain injury during the above 2004 deployment to Iraq; and, he was medically evacuated for back pain.  The lumbar condition was associated with intermittent right lower extremity (RLE) radicular symptoms (radiation, occasional sensory complaints, but no subjective weakness).  An MRI demonstrated “mild” multilevel DDD (L2-L5 with “no herniation or impingement”).  The NARSUM and a neurosurgical addendum referenced a right L5 radiculopathy demonstrated by electro-diagnostic testing; although, the only such study in evidence (EMG/NCS on 15 February 2005, 5 months before separation) reported normal findings.  Multiple STR clinical entries documented normal neurological examinations (5/5 strength), with none to the contrary.  There were multiple entries that documented normal or near-normal grossly observed and measured ROM, and no entries that indicated more severe limitation (some implicated painful motion).  There was STR documentation of normal spinal contour and no documentation of incapacitating episodes.  

There was mixed evidence with regard to gait.  The majority of entries that commented on gait recorded it as normal, but there was occasional note of gait disturbance.  One of these was an orthopedic entry that documented “gait: antalgic-favoring right hip...pain appears out of proportion to exam;” and, there was no correlation with spasm and guarding in any of these entries.  The orthopedic addendum to the NARSUM opined that “due to his back pain he has changed his gait and now has some right hip pain” and noted lumbar spasm on the examination.  The neurosurgical addendum documented “slightly antalgic gait,” but implicated the left lower extremity.”  A neurological addendum for the headache (see below) conversely recorded a normal gait.  That consult was conducted a few days before the above addendums and a month before the NARSUM; and, it was corroborated by contemporary entries from other examiners that noted a normal gait.  The neurosurgical consultant opined that the CI was not a surgical candidate.  He did not respond sufficiently to conservative measures, and the MEB forwarded “low back pain and L4-5 radiculopathy secondary to lumbar degenerative disk disease” to the PEB.  

The NARSUM documented “constant” low back pain with proximal RLE radiation (no mention of accompanying neurological complaints) rated 6/10 and aggravated by “sitting for more than 1-1/2 hours or lifting more than 20 pounds.”  The physical examination recorded “antalgic gait ... bent slightly forward with his back pain ... [with] ... slightly decreased [ROM]” and did not document tenderness or spasm.  Neurological findings were normal (5/5 strength).  Of note, the examiner documented indicators of possibly unreliable findings, e.g., “2/5 Waddell’s signs ... and pain out of proportion to the exam.”  

The neurosurgical and orthopedic addendums corroborated normal neurologic testing, and offered no additional probative evidence other than the gait observations elaborated above. Goniometric ROM measurements by physical therapy (PT) were flexion to 80 degrees and combined ROM of 200 degrees (normal 240), specifying painful motion.  

The 2-week post-separation VA C&P examination documented low back pain (unelaborated) with RLE radiation, but no mention of accompanying neurological complaints, that prohibited heavy load-bearing and running; and, documented that there had been no incapacitating episodes.  The physical examination recorded “an antalgic gait, waddling side to side, holding his back straight” without comment regarding spasm, tenderness, or other findings.  Neurological findings were normal except for a distal RLE deficit to light touch.  Measured ROM was flexion to 40 degrees with a combined ROM of 115 degrees.  There was no history of interim trauma or other clinical explanation for the marked worsening of the gait and ROM.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (cervical or lumbar strain), citing tenderness and spasm.  The VA rated the back condition coded 5243 (intervertebral disc syndrome), based on the C&P examination, 1 month after separation, citing the 20% criterion of “flexion...greater than 30 degrees but not greater than 60 degrees.”  With regard to the §4.71a ROM criteria for the spine, the MEB measurements, and all of the service ROM evidence over an extended stable period prior to separation, would not support a rating higher than 10%.  Members agreed that the post-separation C&P ROM measurements were insufficiently probative as the sole support for a 20% rating recommendation based on ROM limitation, given the marked contrast with all other evidence and the lack of clinical correlation.  

Members did, however, deliberate whether the §4.71a 20% criterion of “muscle spasm or guarding severe enough to result in an abnormal gait” was sufficiently supported by the evidence. Although an abnormal gait was documented by the addendum and NARSUM examiners as above, as well as by the post-separation VA examiner, these findings contrasted distinctly with the baseline evidence from the preceding STR clinical entries.  The latter included the observations of the neurology consultant, a reliable examiner, from a temporally probative examination that was directed at a different condition and not vulnerable to the subjective influence of the other examinations focused on spine disability.  Furthermore, the requisite correlation of abnormal gait with spasm and guarding was tenuous; the contribution from non-ratable hip pain could not be excluded; the neurosurgical addendum attributed the gait disturbance to the left leg unaffected by radiculopathy (either a documentation error or probative value mitigated by speculation); and, the incongruently severe gait description from the VA examiner corroborated an impression of significant subjective contribution to the gait observations from one examiner to the next. Furthermore, members considered that the objective clinical acuity (mild non-surgical disc disease) was not consistent with a significantly severe gait disturbance.  The ultimate member consensus was that a higher rating recommendation was not supported on the basis of the abnormal gait criterion.  There was no documentation of incapacitating episodes that would provide for a higher rating under that formula.  

The Board also considered if additional service rating was justified for peripheral nerve impairment due to 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 nerve involvement, this is subsumed under the VASRD §4.71a general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The intermittently documented sensory findings were of no functional import and there was no objective motor weakness.  There was thus no evidence for peripheral nerve involvement that would have logically impacted military occupation-specific activities.  The Board therefore concluded that additional service disability rating was not justified on this basis.  After due deliberation, considering all evidence and with deference to reasonable doubt, Board consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the lumbar disc condition.

Migraine.  There were conflicting accounts regarding the onset and etiology of the headache condition.  The neurology addendum to the NARSUM documented a chronic history of headaches “starting in his 20’s,” although the CI’s entrance physical (MEPS DD Form 2807-1, 7 November 2001) at age 36 denied a history of headaches.  The neurology addendum stated that these same headaches worsened during the 2004 Iraq deployment, although the NARSUM stated that they began during the deployment.  The Post-Deployment Health Assessment (DD Form 2796, 19 May 2004) denied a complaint of headaches.  The first presentation for a headache complaint in the available STR was an emergency room (ER) visit in December 2004 (7 months before separation, 5 months after leaving Iraq, MEB pending) at which time the CI reported an onset of headache “5-6 weeks” earlier (no history of injury).  Imaging (CT) and a spinal tap were negative, the headache was aborted with a single injection (Compazine), and this was the only STR documentation of emergent treatment for headache.  An STR follow-up entry the next day after the ER visit recorded an onset of headache at the same time as the back injury in Iraq, and associated it with the reason for medical evacuation.  An entry a week later documented the CI’s report of worsening headaches after a fall down stairs two weeks earlier stating that “he did not think it hurt him so he did not seek medical care at that time.”  There were subsequent PT notes associating the headache (including its onset) with neck and shoulder pain, as well as a dental consult for temporomandibular joint dysfunction as a possible cause for the headaches.  

There were likewise variable STR accounts as to the clinical course, severity, and response to treatment of the condition.  A PT note described them as occurring “by the end of the day” with other musculoskeletal complaints.  Another entry noted that they were preceded by a “tingling feeling ... and need to go lie down in a quiet dark room.”  An entry in January 2005 reported worsening headaches in spite of multiple medications (ibuprofen, acetaminophen, Percocet, and Valium), but an entry a month later documented the CI’s statement that his therapy (fiorinal and amitriptyline) was “working well for him.”  

The neurology addendum was a month after the above entry and stated that “headaches are infrequent over all ... [but] ...  can be quite prolonged disrupting his ability to perform job up to 9 days per month.”  The neurologist made the diagnosis of “migraine with aura” which was forwarded as the MEB submission to the PEB.  The NARSUM reported “incapacitating” headaches “once per week that last 2 to 3 days.”  The commander’s performance statement, however, elaborated only orthopedic limitations from the “neck, arm and back” and did not mention headaches or work loss.  

The VA C&P examination (same as above, 2 weeks after separation) documented “migraine headaches” that “began in 2004” with a frequency of “three episodes per month” that were usually aborted with treatment (Zomig) although sometimes (frequency not specified) persisted “for 12-18 hours or until he gets to sleep.”  

The Board directed attention to its recommendation(s) based on the above evidence.  The PEB’s DA Form 199 decision stated, “Migraine with aura reported onset age 20, now has occasional incapacitating headaches, no evidence of service aggravation.”  The VA service connected the condition by invoking the fact that it was not noted on the entrance physical and “therefore you were presumed sound at the time of enlistment.”  The VA decision did not address service aggravation.  The Board’s primary charge was an assessment of the fairness of the PEB’s determination that the migraine condition was EPTS without permanent service aggravation (PSA).  The PEB’s EPTS determination clearly rested on the history related in the neurology addendum.  Although there were numerous contrary accounts, members agreed that those divergent histories forced too much speculation to conclude that the history by the MEB specialty consultant was inaccurate.  Therefore members agreed that the condition was fairly designated as EPTS.  Members then turned to deliberation of whether PSA was fairly conceded in support of a recommendation for service rating.  The Board’s recommendation in that regard was premised on (and the PEB’s decision subject to) DoDI 1332.38 which is excerpted below.  
[E3.P4.5.2.3. Presumption of Aggravation] The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training.  Such medical evidence must be based upon well-established medical principles [E2.2.1. - Fundamental deductions consistent with medical facts that are so reasonable and logical as to create a virtual certainty that they are correct.], as distinguished from personal medical opinion alone. Preponderance of evidence is defined as that degree of proof necessary to fully satisfy the board members that there is greater than a 50% probability that the disease was neither incurred during nor aggravated by military service.  
There was no question that the CI’s headaches worsened in service, e.g., were aggravated; but, the issue before the Board was whether they were permanently aggravated.  The latter requires a permanent adverse effect on the natural history of a condition.  The pronounced lessening of acuity as reflected by the C&P examination shortly after separation argued that the service aggravation was not permanent, although the above standard requires a certainty that cannot be satisfied by that evidence alone.  The confounding issue in this case, however, was that a certainty of medical opinion regarding the anticipated natural course of a condition entails at least some degree of certainty as to the etiology and diagnosis of the condition.  The widely disparate evidence, as elaborated above, made it impossible to ascertain the cause or nature of the headaches.  The diagnosis of migraine or any of the other numerous types of headache requires an accurate history, and it was not possible to establish a given history as the most likely foundation for a diagnosis without resorting to an unacceptable degree of speculation.  Members thus agreed that there was too much probative value mitigation to satisfy them that there was a 50% or greater probability that the headache condition was incurred during and aggravated by military service.  

After due deliberation, with application of the above standards of DoDI 1332.38, members agreed that there was insufficient cause to recommend a change in the PEB's determination that the headache condition existed prior to service and was not permanently aggravated by service.

Contended PEB Conditions:  Hyperlipidemia, Pes Cavus, and Major Depressive Disorder.  Hyperlipidemia, as an asymptomatic condition with no link to fitness and no foundation for VASRD rating, will not be addressed further.  There was no STR documentation of foot complaints until a podiatry addendum to the NARSUM in February 2005 (5 months before separation).  This documented a history of bilateral foot pain that was not present at the time of the examination.  The CI was diagnosed with bilateral pes cavus foot type, was dispensed orthotics (heel lifts), and the condition was judged to meet retention standards.  

The CI had a history of mental health (MH) complaints and treatment with anti-depressants dating to 2002.  He presented to behavioral health in December 2004 (6 weeks after re-deployment) and was diagnosed with “phase of life problem” and judged to be fit for duty.  There were a series of MH treatment notes leading to separation that documented a stable course, although in January 2005 there was an escalation of symptoms with numerous life stressors in play.  This was managed successfully as an outpatient and the last MH entry a month before separation characterized the MH condition as “very improved.”  A psychiatric addendum to the NARSUM yielded the Axis I diagnosis of “major depressive disorder” (specifically excluding post-traumatic stress disorder) as submitted by the MEB; stated that the CI “appears to be functioning adequately at work” albeit sometimes irritable; and, opined that the condition met retention standards.  None of the above conditions were implicated in the commander’s statement and none were profiled throughout service.  Members agreed that there was insufficient performance-based evidence indicating that any of the above conditions interfered with duty requirements to an extent that would have prohibited further military service.  

After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for contended conditions and so no additional disability ratings are recommended.  

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 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 and did not elect to submit a minority opinion.  In the matter of the contended migraine headache condition, the Board unanimously recommends no change in the PEB adjudication that it existed prior to service and was not permanently aggravated by service.  In the matter of the contended hyperlipidemia, pes cavus, and major depressive disorder conditions, the Board unanimously 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, 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 , w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record
XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,