RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00096
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060726

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

CI CONTENTION:  The CI contends the severity of his neck and back conditions warranted a higher PEB rating.  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 progression or complications of service-connected conditions after separation.  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 - 20060608	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5241	0%	No VA Examination in Evidence	
Chronic Back Pain	5299-5242	0%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI initially injured his neck and back after falling from a water tower in July 2003 while deployed to Iraq.  On 23 February 2005 the CI underwent cervical spine surgery for a C-6 corpectomy (removing all or part of the vertebral body), arthrodesis (fusion) at C-6 and C-7, and anterior instrumentation C5-C7 with a plate, and 4 pedicle screws.  The CI’s postoperative course was uneventful.  

At a follow-up visit on 30 June 2005 the CI was released to work with restrictions of no heavy lifting, stooping, pushing or pulling and no periods of prolonged sitting or standing.  Neurologic evaluation on 1 September 2005 found sensation normal on all four extremities with symmetrical 2+ deep tendon reflexes.  Phalen’s and Tinel’s tests (to determine median nerve irritation) were normal, but an electromyogram (EMG) study noted right carpal tunnel syndrome, Grade II (mild to moderate) and denervation changes in the right deltoid most likely post-surgical.  On 30 November 2005 there was improvement of left arm paresthesias and pain.
  
The 14 October 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, the CI checked plate(s), screw(s), rod(s), or pin(s) in any bone and reported “s/p op C-spine.”  The physical examiner noted decreased neck and back range of motion (ROM).  Physical therapy ROM measurements on 7 November 2005 were 27 degrees flexion (normal 45 degrees), and a combine ROM of 205 degrees (normal 340).  

On 30 November 2005 at a neurology examination reported improvement of left arm paresthesias and pain was reported and the CI’s neck was supple with a full ROM.  At a neurology evaluations on 6 December 2005 and 6 February 2006 the CI’s neck was again supple with a full ROM.  

The MEB NARSUM examination on 5 April 2006, 5 months prior to separation, noted complaints of continued neck pain.  Physical examination showed a “stable” neck.  ROM measurements performed by the same physical therapist with a goniometer IAW the VASRD on 26 May 2006 were recorded as 28 degrees flexion and a combined ROM of 145 degrees.    All ROMs were limited to what the CI referred to as “soreness.”  The examination was silent with regard to gait, posture and spasm.  There was no VA examination proximate to separation or evidence of treatment after separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 0%, coded 5241 (spinal fusion), citing painful limitation of motion.  
The panel majority agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees) and combined ROM (not greater than 170 degrees) reported on the 26 May 2006 follow-up NARSUM ROM examination, which was more proximate to separation than the neurologic examinations that did not provide quantitative measurements or address whether motion was painful or not painful. Furthermore, a discussion was carried out that reviewed the CI’s surgery related to the fusion and instrumentation procedures.  With instrumentation from C-5 to C-7, limitation of motion of the cervical spine is not unexpected and has been reported in the spine surgery literature, which was mentioned during the panel discussion.  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 majority recommends a disability rating of 20% for the neck condition, coded 5241.  

Chronic Back Pain.  According to the STR and MEB NARSUM, the CI initially injured his neck and back after falling from a water tower while deployed in July 2003.  An MRI of the lumbar spine dated 14 July 2004 demonstrated disk dehydration at L1/2 and L5/S1 with a small central herniated disk at L5/S1 and endplate depression at L1 consistent with a Schmorl’s node.  

At a neurosurgical evaluation of 22 July 2004 the CI had normal posture and gait with muscle strength 5/5 in all muscle groups without spasticity, fasciculation (muscle twitching), or rigidity and with normal sensation.  At a neurosurgery clinic visit on 31 May 2005 the CI complained of sharp back pain with a severity of 9/10, which radiated down into both legs along with some paresthesias.  However, he denied bowel or bladder dysfunction.  On examination he had tenderness to palpation along the lower lumbar spine. There was pain on flexion, extension, and lateral bending of the lumbar spine, and there was slightly decreased sensation in both feet.  

On 30 June 2005 the neurosurgeon indicated the CI had mild lumbar degenerative disk disease with no surgical intervention.  Physical therapy and a possible lumbar orthosis was recommended.  An MRI dated 30 June 2005 demonstrated L5-S1 central disc protrusion without evidence of spinal canal or neural foraminal compromise, facet joint hypertrophy at L4-L5 and L5-S1, minimal foraminal narrowing at L4-L5, and small annular bulges at T12-L1 and L1-L2.  

During the 14 October 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, the CI reported low back pain.   Physical examination showed decreased lumbosacral spine ROM.  After eight sessions of physical therapy the CI displayed good active ROM excluding lumbar back extension, which was moderately limited. Strength and pain levels were acceptable for return to normal function.  

At a neurological consultation dated 30 November 2005, the CI described daily high lumbar mid back pain with occasional bilateral sciatica.  There was no bowel or bladder incontinence or sensory deficit.  Naprosyn (naproxen, an NSAID) was of no help nor was physical therapy, two epidural injections, massages, and Topamax (Topiramate).  Electrodiagnostic studies revealed a suggestion of a mild chronic right L4 or partial L5 radiculopathy without evidence of acute entrapment.  A neurology progress note dated 6 February 2006 indicated the persistent low back pain was mildly improved with diclofenac and higher doses of Elavil (amitriptyline for nerve pain) along with Duragesic patches (fentanyl, a narcotic) and Soma (carisoprodol, a muscle relaxer).  The examiner’s diagnosis was low back pain with contributing factors of chronic arthritis, mild obesity, and right L4-L5 partial radiculopathy.  A conservative approach including physical therapy and repeat epidural injections were recommended.  

The 5 April 2006 MEB NARSUM examination, 5 months prior to separation, noted complaints of continued lower back pain with exertion.  Physical examination was silent with regard to gait, posture and spasm.   Physical therapy ROM testing on 26 May 2006 recorded 63 degrees forward flexion (90 normal) and a combined ROM of 170 degrees (240 normal).  ROM was limited by “soreness,” and the CI was in minimal to moderate pain at the end ROMs.  There was no VA examination proximate to separation or evidence of treatment after separation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5242 (degenerative arthritis of the spine), citing painful limitation of motion.   The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the 26 May 2006 follow-up NARSUM ROM examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or 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.   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 back condition, coded 5242.  

BOARD FINDINGS:  In the matter of the neck condition, the panel majority recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  The single voter for dissent recommends a modification to 10% and submitted the appended minority opinion.  In the matter of the back condition, the panel unanimously recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  There were no other conditions within the panel’s scope of review for consideration.  

The panel majority 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	
Chronic Neck Pain	5241	20%	
Chronic Back Pain	5242	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160217, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:  

It is the minority position that the PEB rating for the cervical spine condition should be modified to 10%, premised on concession of VASRD §4.59 (painful motion), versus the 20% recommended by the majority.  As cited in these proceedings, three serial ROM evaluations by a neurology consultant documented normal ROM after the physical therapy (PT) measurements that underpin the majority recommendation.  The minority member strongly advocates assignment of the determinant probative value to this neurology evidence in this case, rather than to the PT evidence invoked by the majority in support of its 20% recommendation.  

The minority member asserts that the probative value factors in this case heavily favor the neurology ROM evidence, as follows:

1) The neurology evidence was more temporally probative to separation and the examiner specifically documented that there was continued post-surgical improvement after the majority’s PT evidence.

2) The neurology evidence was better aligned with, and corroborated by, the totality of evidence.  In addition to normal ROM and normal neurological findings, the neurologist documented the absence of spasm, guarding, tenderness, or abnormal spinal contour.  At least some of these findings would logically accompany the significant ROM limitation rated by the majority, but none of them were documented in the examinations relied upon by the majority, or in any other evidence.

3) The significant ROM limitation rated by the majority was inconsistent with the overall functional evidence.  The commander opined that the CI was “capable of continuing his military duties.”  The fact that the CI did not seek VA treatment or disability compensation suggests that the favorable post-operative course documented by the neurologist continued through and beyond separation. 

Consistent with the DoDI 6040.44 standard that Physical Disability Board of Review recommendations are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that the CI’s prior determination be modified as follows, effective as if the date of his prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Disc Disease with Surgical Residuals, Cervical Spine	5241	10%	
Chronic Back Pain (Degenerative Disc Disease)	5242	10%	
COMBINED	20%	

AR20170013353, XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and recommended that your percent of disability be increased to 30%.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I regret to inform you that I reject the Board’s majority recommendation and accept the Board’s minority opinion that your disability rating should be modified to 20% but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.  

	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