RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02595
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030222

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Food Service Specialist, medically separated for “cubital tunnel syndrome [CTS]” and “chronic low back pain [LBP],” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  “VA rated me at a higher disability upon my discharge…”  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 - 20021125	VARD - 20030321	
Condition	Code	Rating	Condition	Code	Rating	Exam	
CTS	8799-8716	10%	Left Ulnar Nerve, Compressive Neuropathy	8716	10%	20030123	
Chronic LBP	5299-5295	0%	L4-S1 Facet Osteoarthritis and Mild Degenerative Disc Disease 	5010-5292	40%		
			Herniated Nucleus Pulposus C6-C7	5290	20%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Cubital Tunnel Syndrome (CTS).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CTS condition began in January 2001 without specific injury or trauma.  Electrophysiologic testing in December 2001 documented “mild to moderate” left compressive ulnar neuropathy.  At the 30 October 2002 MEB NARSUM examination, 4 months prior to separation, the physical examination showed evidence of ulnar nerve irritation (positive Tinel sign), numbness in the ulnar nerve distribution, and no evidence of musculature atrophy of the hand.  At the 23 January 2003 VA Compensation and Pension (C&P) evaluation, 1 month prior to separation, the CI reported occasional numbness.  The physical examination showed no tenderness at the elbow, with normal sensation, reflexes, and grip strength.  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated 10% for the CTS condition analogously coded 8799-8716 (neuritis), citing no muscle wasting, and electrophysiologic evidence of moderate ulnar compressive neuropathy.  The VA rated 10% for the CTS condition, analogously coded 8799-8716 (neuritis), based on the VA C&P examination 1 month before separation, citing mild incomplete paralysis of finger and wrist movements.  

At the time of separation there was no evidence of decreased sensation, strength or atrophy, decreased ability to make a fist, decreased extension of the 4th or 5th digits, inability to adduct the thumb, weakened wrist flexion, or any range of motion (ROM) deficits to support a higher rating using any of the hand muscle (5307, 5309), ulnar nerve, digit (5230), or wrist (5215) codes.  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 left CTS condition.  

Chronic LBP.  The PEB combined the lumbar spine degenerative disc disease (DDD), and C6-C7, and T11-T12 herniated disc conditions as a single unfitting condition coded 5299-5295 (lumbosacral strain) and rated 0%.  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 or implied adjudication that each condition was separately unfitting.  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.  The evidence for the lumbar spine degenerative disc disease (DDD), and T11-T12 and C6-C7 herniated disc conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

C6-C7 Cervical Herniated Disc.  According to the STR and the MEB NARSUM, the neck pain condition began in November 2001 while performing her duties.  Radiographic imaging (x-rays) in November 2001 documented “exaggerated curvature” presumably due to cervical muscle spasm or positioning, while the vertebral heights and alignment were considered normal.  Further imaging (MRI), 9 days later, documented “tiny” disc protrusion at C6-C7 without spinal cord or nerve impingement.  Electrophysiologic testing in December 2001 documented no evidence of cervical neuropathy.  

An undated commander’s statement made reference only to “herniated discs,” and her “back problem” with inability to run, march, carry a ruck or wear Kevlar, and inability to take a physical fitness test due to her injury.  A profile dated October 2002 outlined limitations for her “cervical disc herniation,” which prohibited wearing a ruck, flack vest, load bearing equipment, and Kevlar, firing weapons, and taking the fitness test; and allowed swimming at own pace and lifting up to 10 pounds.  

At the 30 October 2002 MEB NARSUM examination, 4 months prior to separation, the CI reported continued cervical spine pain.  The physical examination did not specifically document any findings referable to the cervical spine, shoulders, strength, or reflexes.  

At the 23 January 2003 VA C&P evaluation, 1 month prior to separation, the CI reported neck pain and stiffness with a “moderate amount of physical impairment.”  The physical examination showed a forward flexion of 45 degrees, extension to 15 degrees with pain, bilateral lateral flexion to 30 degrees, and bilateral rotation to 40 degrees (with normal being 45 degrees in each direction, per the examiner).  

The panel directed attention to the rating recommendation based on the above evidence.  

As mentioned above, the PEB combined the lumbar spine degenerative disc disease (DDD), and C6-C7, and T11-T12 herniated disc conditions as a single unfitting condition coded 5299-5295 (lumbosacral strain) and rated 0%.  

The VA rated 20% for the Herniated Nucleus Pulposus C6-C7 condition, analogously coded 5290 (spine limitation of motion, cervical). 

The panel first considered if the cervical condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The condition was profiled, implicated in the NARSUM, forwarded by the MEB and adjudicated as unfitting by the PEB.  The panel concluded that there was not a preponderance of evidence of the service records that overcame the panel’s presumption that the bundled cervical condition was reasonably considered separately unfitting.  

The panel then considered the rating recommendation for the unfitting herniated cervical disc condition at the time of separation.  The panel considered code 5290 (spine, limitation of motion, cervical) stipulating a 10% for ‘slight’ and a 20% for ‘moderate’ limitation of motion.  There was no documentation of more significant limitations of motion that would support the higher 20% rating for ‘moderate’ limitation of motion.  There was no documentation of ‘moderate, recurring attacks’ of intervertebral disc syndrome for a higher rating under VASRD code 5293.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends the cervical condition be found separately unfitting, with a disability rating of 10%, coded 5290 IAW the 2003 VASRD.  

LBP and DDD.  According to the STR and the MEB NARSUM, the LBP condition began in January 2001 while performing her duties.  Radiographic imaging (MRI) in November 2001 documented a herniated disc at the T11-T12 vertebral levels, L4-L5 / L5-S1 facet degeneration, and mild DDD.  

At a May 2002 orthopedic consultation, the CI reported LBP with occasional posterior thigh discomfort that radiated to the knee and bilateral lower extremities.  On physical examination, there was a normal gait with a normal heel and toe walk.  Flexion at the waist was to 75 degrees (normal 90), and extension was to 5 degrees (normal 30), with increased pain.  

At the July 2002 MEB examination (recorded on DD Forms 2697 and 2808), 7 months prior to separation, the CI reported back and leg pain.  The spinal examination was checked “abnormal.”  

At the 30 October 2002 MEB NARSUM examination, 4 months prior to separation, the physical examination showed full lumbar ROM, flexion to 90 degrees (normal), extension to 5 degrees (normal 30) and “good” lateral bending, without evidence of radiculopathy.  

At the 23 January 2003 VA C&P evaluation, 1 month prior to separation, the CI reported having fallen just prior to the visit, and that her limp was due to leg pain.  The physical examination showed a limp favoring the right leg; flexion to 30 degrees, bilateral lateral flexion to 10 degrees (normal 30), and extension to 0 degrees (normal 30); all with discomfort.  

The panel directed attention to the rating recommendation based on the above evidence.  
The PEB rated 0% for the LBP condition, analogously coded 5299-5295 (lumbosacral strain), citien a normal ROM and no radiculopathy.  

The VA rated 40% for the LBP condition, analogously coded 5010-5292 (spine limitation of motion).

The panel first considered if the low back condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The condition was profiled, implicated in the commander’s statement and the NARSUM, forwarded by the MEB and adjudicated as unfitting by the PEB.  The panel concluded that there was not a preponderance of evidence of the service records that overcame the panel’s presumption that the bundled cervical condition was reasonably considered separately unfitting.  

The panel then considered the rating recommendation for the unfitting LBP condition at the time of separation.  At the time of separation in February 2003, the 2003 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity; whereas, the current standards specify rating thresholds in degrees of ROM impairment.  When older cases have ROMs in evidence, the panel reconciles (to the extent possible) its opinion regarding degree of severity for the older spine codes.  The panel considered the evidence for the back condition at the time of separation using the 2003 VASRD.  In consideration of the 5292 code (spine, limitation of motion of, lumbar), 2 separate examinations (May 2002 orthopedic, July 2002 MEB examination, and the October 2002 MEB NARSUM) respectively documented a ROM to 70 degrees, “abnormal,” or “full” that supported a 10% rating for ‘slight’ limitation of motion.  Although more proximate to separation, the January 2003 VA C&P ROM values reported at the examination were significantly worse than those reported previously, and had occurred after a fall that same day.  There was no STR evidence that the ROM impairment at the VA examination reflected the true baseline disability.  Therefore, members agreed that the higher rating for ‘moderate’ was not justified.  

The panel also considered code 5295 for lumbosacral strain.  The CI reported painful motion, however there was no STR evidence of abnormal gait, spasm on extreme forward bending, significant loss of lateral spine motion in the standing position and no evidence that would support a higher rating.  There was no mention of any missed work days or bed rest, only the inability to perform her duties, which would support a higher rating under the code 5293 for intervertebral disc syndrome.  None of these coding options afforded a greater than 10% rating advantage to the CI.  Although occasional radiating pain and subjective numbness were reported prior to separation, there were no objective neurologic abnormalities.  There was insufficient evidence to indicate impairment of duty due to any radiculopathy.  The panel therefore adjudged that there was insufficient evidence to warrant any additional rating for radiculopathy.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a 10% disability rating for the chronic LBP condition, coded 5292.  

BOARD FINDINGS:  In the matter of the Left CTS condition, the panel unanimously recommends no change in the PEB adjudication.  

In the matter of the C6-C7 cervical herniated disc condition, the panel unanimously recommends a separately unfit determination with a disability rating of 10%, coded 5290 IAW 2003 VASRD.  

In the matter of the LBP and DDD condition, the panel unanimously recommends a separately unfit determination with a disability rating of 10%, coded 5292 IAW 2003 VASRD.  

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 as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left CTS	8799-8716	10%	
C6-C7 Cervical Herniated Disc	5290	10%	
LBP and DDD	5292	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151121, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013341, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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 30% 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, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

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

Sincerely,					      
Enclosure