RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00161
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20031218

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Medical Supply Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “chronic cervical spine pain” and “low back pain,” rated 10% and 10% with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends that service rating should have increased while she was on the TDRL instead of decreased.  She also contends that she was given a higher rating for her conditions by the VA.  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 - 20031201	VARD - 20030917	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Cervical Spine Pain	5241	10%	Status Post Anterior Cervical Diskectomy and Fusion…	5290	10%	20030723	
Chronic Low Back Pain	5237	10%	Degenerative Joint Disease…Lumbar Spine	5292	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Cervical Spine Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) TDRL narrative summary (NARSUM), the CI was placed on the TDRL on 26 September 2002 for neck pain with upper extremity paresthesias and weakness, left greater than right.  Neurosurgical evaluations by different neurosurgeons in February and June 2002 noted no evidence of cervical cord compression or radiculopathy.  However, the 19 June 2002 neurosurgical evaluation recommended surgical decompression in the near future to prevent more serious injury from any future trauma.  On 23 March 2003 the CI underwent cervical spine surgery (C5-C6 discectomy and fusion).  

At the 23 July 2003 VA Compensation and Pension (C&P) examination, 5 months prior to TDRL removal, the CI reported cervical spine pain, graded 8/10, which worsened with range of motion (ROM) of the neck.  The examiner noted the CI had also been diagnosed with bilateral carpal tunnel syndrome.  On examination the examiner noted the CI walked “in a fully erect posture not favoring any of her bilateral extremities.”  Neck ROM was flexion of 35 degrees (normal 45) and total combined ROM of 225 (normal 340) with “subjective discomfort” in all planes of movement.  There was normal strength and reflexes in extremities.  Sensation was normal in the upper extremities except to the palm of the left hand.  Provocative testing for carpal tunnel syndrome (Phalen’s) was positive bilaterally.  

During the 16 October 2003 MEB TDRL NARSUM examination, 2 months prior to separation, the CI reported she received no significant benefit from her neck surgery, with symptoms of neck pain and weakness of the upper extremities, worse on the left.  She denied any bowel/bladder incontinence or paresthesias.  The physical examination showed a normal gait.  There was tenderness to palpation (TTP) of the paraspinal muscles.  The examiner noted “flexion and extension” was “within acceptable ranges.”  Neck ROM measurements were not listed in the examination findings.  Upper extremity strength, reflexes, and sensation were normal.  Cervical spine X-rays showed an intact surgical fusion with normal spinal alignment.  

At the 8 June 2004 VA C&P spine examination, 6 months after separation, the CI reported a “constant ache on the left side of her neck, occasional spasm.”  The physical examination showed neck ROM of flexion 20 degrees and total combined ROM of 265 degrees.  Pain was noted at the extremes of motion.  There was also tenderness of the cervical spine noted, greater on the left than right.  There was good upper extremity strength and sensation, except for decreased sensation at the tips of the thumbs and index fingers and weak hand grips.  

At the 1 February 2005 VA C&P spine examination, 14 months after separation, was noted to be a repeat rating evaluation because on the earlier C&P examination there was no opinion expressed by the examiner.  The CI reported neck pain of 8-10/10 with weakness of both arms and the left leg.  She reported she required bedrest each week for two to three days for exacerbations.  She could not drive reportedly because she could not turn her neck and was often sleepy from her medications.  The physical examination showed a normal gait and posture.  Cervical contours were normal.  Neck ROM was flexion was repeated three times and was 5, 20, and 10 degrees with pain and combined ROM of 80 degrees after three repetitions, all with painful motion.  There were no muscle spasm, fasiculations (brief, limited muscle fiber contractions), or asymmetry with motion and there was no muscle atrophy.  There was decreased sensation to light touch, vibration and two point discrimination.  Muscle strength was 2/5, and thought to be limited by pain.  

The 1 February 2005 VA Rating Decision cited an examination by a neurologist which found normal strength, sensation and reflexes and no evidence of muscle disease or atrophy.  No associated neurological condition was diagnosed by the neurologist.  Cervical imaging showed the post-surgical fusion and anterior plate with minimal encroachment on the right neural foramina consistent with prior MRI.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5241 (spinal fusion), citing tender paraspinous muscles, full range of cervical motion, no muscular spasm, spinal deformity, radiculopathy or myelopathy. The VA also rated the neck condition 10% coded 5290 (limitation of motion), based on the C&P examination 5 months before TDRL removal, citing ROM, utilizing VASRD code in effect at the time, but now obsolete.  The VA increased the neck rating to 30%, with the same code, based on the VA examinations 6 and  14 months after separation, citing cervical forward flexion 15 degrees or less.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 40 degrees) and/or combined ROM (greater than 170 degrees but not greater than 335 degrees), as reported on the TDRL evaluation and the VA examination before separation.  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.  The cervical spine condition may have worsened after separation.  The panel noted that the VA examination 14 months after separation was outside of the usual 12 month window for probative value of VA evidence for the panel’s rating recommendation at permanent separation.  The VA examination 6 months after separation was within the 12 month window, however there was no evidence in the STR or at the VA or MEB TDRL NARSUM examinations (before permanent separation) that the worsened neck ROM noted at the post-separation VA examinations reflected the CI’s disability at the time of separation.  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 evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  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 chronic neck pain condition.

Chronic Low Back Pain.  According to the STR and the MEB TDRL NARSUM, the CI was placed on the TDRL on 26 September 2002 for low back pain (LBP) with recurrent muscle spasms.  Lumbar spine MRI performed on 25 February 2002 showed degenerative disc disease at L5-S1 without spinal stenosis or nerve root impingement.  There was no surgical indication.  

At the 23 July 2003 VA C&P examination, 5 months prior to TDRL removal, the CI reported constant LBP with radiation to the left lower extremity (LE).  On examination the examiner noted the CI walked “in a fully erect posture not favoring any of her bilateral extremities.”  There was “mild discomfort” to palpation of the left lumbar region.  There were no muscle spasms.  Back ROM was flexion of 80 degrees (normal 90), extension of 15 degrees (normal 30), right and left rotation of 30 degrees (normal 80), with “subjective discomfort” in all planes of movement.  There was normal lower LE strength and reflexes, with decreased sensation to light touch noted in the left LE.  Straight leg testing to elicit nerve tension signs was positive bilaterally and much greater on the right than the left (positive at 20 degrees versus 50 degrees).  

During the 16 October 2003 MEB TDRL NARSUM examination, 2 months prior to separation, the CI reported persistent LBP, but denied any bowel or bladder incontinence or any paresthesias.  Physical examination showed a normal gait.  There was TTP of the lumbar paraspinal muscles, greater on the left than right.  The examiner noted “flexion and extension” was “within acceptable ranges.”  Thoracolumbar ROM measurements were not listed in the examination findings.  Lower extremity strength, reflexes, and sensation were normal and SLR was negative on the left and equivocal on the right.  The CI was able to toe and heel walk.  

At the 8 June 2004 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported LBP with intermittent radiation to the left LE, with tingling of both feet and no weakness.  The CI was using a cane on the right side.  The physical examination showed a straight spine.  There was no muscle spasm, but there was guarding with ROM.  Back flexion was 15 degrees with combined ROM of 155 degrees.  There was normal LE strength, sensation, and reflexes with negative SLR on the left and SLR on the right elicited LBP and neck pain at 65 degrees.  The CI was able to walk on heels and toes.  Lumbar MRI showed degenerative changes without disc herniation, neural foraminal or central canal stenosis noted.  

At the 1 February 2005 VA C&P SPINE examination, 14 months after separation, was noted to be a repeat rating evaluation because on the earlier examination there was no opinion expressed by the examiner.  The CI reported LBP with numbness of both LEs and weakness of the left LE.  However, the CI reported exacerbations of the neck pain that radiated down the left LE to the foot and also caused right foot numbness.  She reported occasional use of a cane, but that she felt unstable although without any falls.  The physical examination showed a normal gait and posture.  There were no abnormal spinal contours.  Back ROM was flexion 55 degrees, with decreased to 30 degrees with repetition and combined ROM of was repeated three times and was 5, 20, and 10 degrees with pain and combined ROM of 115, decreased to 85 with repetition, with painful motion noted.  There were no muscle spasms, fasiculations, or any asymmetry with motion and there was no muscle atrophy.  There was decreased sensation to light touch, vibration and two point discrimination.  Muscle strength was 2/5, and thought to be limited by pain.  

The 1 February 2005 VA Rating Decision cited an examination by a neurologist which found normal strength, sensation and reflexes and no evidence of muscle disease or atrophy.  No associated neurological condition was diagnosed by the neurologist.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5237 (lumbosacral strain), citing no muscle spasm, restriction of ROM, or deformity and normal gait.  The VA rated the low back condition 10%, coded 5292, based on the VA examination 5 months before separation, utilizing a code in effect at the time, but now obsolete, citing “slightly limited range of motion indicative of painful motion.”  The VA increased the low back rating to 40%, coded 5242 (degenerative spinal arthritis) based on the VA examinations 6 and 14 months after separation, based on ROM, citing forward flexion of 30 degrees or less.  

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) as reported on the TDRL evaluation and/or the VA examination before separation.  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.  The lumbar spine condition may have worsened after separation.  The panel noted that the VA examination 14 months after separation was outside of the usual 12 month window of probative value of VA evidence for the panel’s rating recommendation at permanent separation.  The VA examination 6 months after separation was within the 12 month window, however there was no evidence in the STR or at the VA or MEB TDRL NARSUM examinations before permanent separation that the worsened low back ROM noted at the post-separation VA examinations reflected the CI’s disability at the time of separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour at examinations prior to separation, thus the next higher 20% rating was also not justified on this basis.  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 chronic low back pain condition.  

BOARD FINDINGS:  In the matter of the chronic cervical spine pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  

The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160705, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170014087, XXXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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. 

A copy of this decision has been provided to the counsel you listed on your application. 

Sincerely,					      
						      					
Enclosure