RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02018
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20070203

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E4, Infantryman, medically separated for “chronic non-radiating low back pain” and “chronic neck pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  “The rating were unfairly low…which caused low payouts.”  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 - 20061107	VARD – 20070625	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non-Radiating Low Back Pain…	5237	10%	Chronic Strain Lumbar Spine	5237	10%	20070312	
Chronic Neck Pain…	5237	0%	Degenerative Disc Disease Cervical Spine	5243	10%	20070312	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Chronic Non-Radiating Low Back Pain (LBP).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s LBP condition began in February 2005 after an explosion near his vehicle in Iraq.  The CI was apparently kept in theater due to an eye injury for several months and then returned to his home of record for R&R.  He returned to theater, but had continued duty impairment from his injuries leading to medical evacuation in September 2005.  An evaluation in neurosurgery on 22 September 2005 noted a normal neurological examination of the lower extremities.  The CI reported ongoing LBP and numbness of the feet aggravated by sitting.  He also endorsed urinary frequency and urgency.  Magnetic resonance imaging (MRI) studies 3 days later showed mild to moderate degenerative disk disease (DDD) and degenerative joint disease (DJD) at L4-5 and L5-S1.  No significant nerve compression was present.  Medications, weight loss, and physical therapy were recommended, but this did not result in improvement sufficient to allow unrestricted duty.  

The range of motion (ROM) measurements for the MEB were obtained in physical therapy on 29 November 2005, 14 months prior to separation.  These were normal other than extension limited to 10 degrees (after rounding) due to pain.  The MEB NARSUM examination was 2 weeks later.  It noted complaints of constant in the lower lumbar spine that was aggravated by prolonged sitting and strenuous activity.  Tenderness of the paravertebral muscles of the low back was present, but the gait was normal.  Provocative testing was negative for nerve root irritation.  The neurological examination was normal.  Two signs of non-organic pain were present.  He was noted to be unable to wear protective armor.  The CI requested clearance for SCUBA diving lessons on 23 March 2006.  He endorsed LBP, but was cleared for training with a recommendation that he remain in shallow water (not defined in the note) due to his morbid obesity.  The initial PEB on 1 May 2006 found the LBP unfitting and recommended a 10% rating.  Separation was delayed due to both appeals of the PEB adjudication as well as weight control (bariatric) surgery and unrelated surgery of the throat soft tissue.  In physical medicine on 4 January 2007, 1 month prior to separation, the CI was noted to have a normal neurological examination of the lower extremities.  His weight had decreased to 238 pounds following the bariatric surgery.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain condition 10%, coded 5237 (lumbosacral or cervical strain), citing normal gait, full motion, paraspinal muscle tenderness, and no clinical signs of radiculopathy.  The VA also rated the low back pain condition 10%, coded 5237, based on the C&P examination 1 month after separation, citing limited motion and pain.  The panel agreed that a 10% rating, by painful motion and the limitations recorded in motion.  The gait and contour were normal.  Incapacitation was not present.  The panel found no 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 low back pain condition.  

Chronic Neck Pain.  According to the STR and the MEB NARSUM, the CI’s neck condition also began in February 2005 after the explosion (discussed above).  He was treated for neck pain in theater until medically evacuated home.  In internal medicine on 22 September 2005, he reported ongoing pain and weakness in both hands.  Tenderness to palpation was present especially with compression of the cervical spine (Spurling maneuver).  He was seen the same day in neurosurgery and reported constant pain associated with vague intermittent numbness and right arm weakness.  The neurological examination of the upper extremities was intact although the CI fatigued easily.  The Spurling maneuver was again positive as were signs of a peripheral neuropathy bilaterally.  A review of the MRI done the night before showed multi-level DDD without significant stenosis (no nerve impingement).  The CI was seen again in neurosurgery on 28 September 2005.  X-rays showed a loss of lordosis (the normal curvature of the spine).  Medications, weight loss, and physical therapy were recommended.  This did not result in improvement sufficient to allow unrestricted duty.  

The range of motion (ROM) measurements for the MEB were obtained in physical therapy 14 months prior to separation.  Flexion was normal, but the combined ROM was 205 degrees (after rounding; normal is 340 degrees) and limited due to pain.  The MEB NARSUM examination was 2 weeks later.  The CI noted that he was unable to wear a helmet or an armored vest.  Tenderness was present, but spasm absent.  The neurological examination was normal.  As noted above, the CI requested clearance for SCUBA diving lessons on 23 March 2006 (2 months after the MEB) and was cleared for these.  He denied neck pain at this encounter.  

Repeat MRI studies on 12 April 2006 showed multilevel DDD from C3-C7 with some cord displacement.  Electrodiagnostic studies (EDX) on 1 June 2006 showed signs of a mild left ulnar and median neuropathy, but did not show evidence for a radiculopathy.  

The CI was seen in physical medicine on 4 January 2007, 1 month prior to separation.  Motion was limited in extension and rotation (left greater than right).  Tenderness was present, but spasm not recorded.  The neurological examination was normal other than strength limited by pain.  One month later in physical therapy, rotation to the right was limited by pain but normal to the left.  Flexion was limited at the end range and extension was limited to neutral.  Lateral flexion was normal bilaterally.  A fat fold behind the skull was very sensitive to touch.  Flexion-extension X-rays were accomplished to evaluate for stability before continuing treatment; the neck was stable on this examination.  

At the 12 March 2007 VA Compensation and Pension (C&P) evaluation, 1 month after separation, the CI reported neck pain.  The CI denied any periods of incapacitation.  The physical examination showed a normal gait and posture, with tenderness.  Muscle spasm was present with forced side bending bilaterally, but not otherwise documented.  The head was held in a normal position and motion was symmetric.  The spinal curvature was normal.  X-ray studies that day showed joint narrowing and irregularity of the cervical spine, with loss of lordosis and mild neural foraminal narrowing of the C2-3 and C3-4 neural foramina.  

In physical therapy on 21 March 2007, the ROM was noted to be limited in all planes but not quantified.  In primary care on 13 November 2007, the CI had full ROM of the neck.  Sensation was intact.  Neither tenderness nor spasm were recorded.  The ROM examinations in evidence which the panel weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Cervical ROM
(Degrees)	MEB ~14 Mos. Pre-Sep	VA ~1 Mos. Post-Sep	
Flexion (45 Normal)	FROM	40	
Combined (340)	205	210	
Comments	Tenderness, Painful motion	Tenderness. Painful motion	
§4.71a Rating	10%	10%	

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 0%, coded 5237 (lumbosacral or cervical strain), citing full motion, no tenderness or spasm, and no clinical signs of radiculopathy.  The VA rated the neck condition 10%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 1 month after separation, citing loss of motion and pain.  

The panel agreed that a 10% rating was justified for limitation in motion and painful motion documented on multiple evaluations.  The C&P examination documented spasm with “forced side bending bilaterally.”  However, spasm was not otherwise documented on this examination or in the record.  The same examiner recorded that the spinal contour was normal.  It was noted that loss of lordosis was observed on the X-ray.  The panel observed that this had also been seen on an X-ray over a year earlier.  The panel considered if the finding of spasm on forced side bending and loss of lordosis on the X-ray were sufficient to support a higher 20% rating.  The VASRD criteria notes “muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.”  While loss of lordosis was recorded, it was only noted on X-ray.  Reversed lordosis was not present.  The spasm was present with forced side bending, but not documented otherwise implying that this was provoked during the examination.  The examiner who did noted this also recorded that the spinal contours were normal.  Considering the totality of the evidence, the panel concluded that a higher 20% rating was not supported on this basis.  Incapacitation was not recorded and a higher rating is not supported under the code 5243 (intervertebral disc syndrome).  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 neck condition, coded 5237.  

BOARD FINDINGS:  In the matter of the low back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the neck condition, the panel unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  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, effective as of the date of the prior medical separation:    

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Non-Radiating Low Back Pain	5237	10%	
Chronic Neck Pain	5237	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150622, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170011066, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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