RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00240
BRANCH OF SERVICE:  aRMY	SEPARATION DATE:  20071216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E6, Infantryman, medically separated for “chronic neck pain” and “chronic low back pain (LBP)” each rated at 10% with a combined disability rating of 20%.  

CI CONTENTION:  “I was rated by the VA for my unfitting conditions at 30% upon separation from service.”  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 - 20070816	VARD - 20080411	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain Secondary to a Bulging Intervertebral Disk at the C5-C6 Level	5299-5237	10%	Degenerative Arthritis of Cervical Spine	5010-5237	10%	20071212	
Chronic LBP Secondary to DDD	5241	10%	Degenerative Arthritis of Lumbar Spine		10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began in October 2004 after an improvised explosive device detonated near his military vehicle.  The CI experienced immediate neck pain, but completed his mission.  Cervical spine X-rays were negative and the CI completed the remainder of his deployment with chronic neck pain.  Magnetic resonance imaging (MRI) performed in January 2005 showed degenerative changes, without evidence of nerve root compression or spinal canal stenosis.  The CI was evaluated by neurosurgery in April 2005 and no surgery was recommended.  In September 2006 the CI reported neck pain with radiation to the right upper extremity into the fourth and fifth fingers.  Repeat cervical spine MRI on 5 September 2006 showed cervical degenerative disc disease (DDD) without spinal canal stenosis or nerve root compression.  No surgery was recommended.  The 22 September 2006 physical therapy evaluation, 15 months before separation, measured cervical range of motion (ROM) and ROM after repetition was flexion 30 degrees (normal 45) and combined ROM 125 degrees (normal 340), limited by pain.  Electrodiagnostic studies of the right upper extremity on 4 October 2006 were negative for cervical radiculopathy.  

The 7 December 2006 physical therapy (PT) visit, 12 months before separation, noted cervical ROM described as “flexion measures two fingers widths from the chest” [near normal] and painful extension was noted.  The NARSUM noted the CI was last evaluated by neurosurgery on 10 April 2007 and was determined to fail retention standards due to chronic neck pain secondary to DDD.  

During the 19 October 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 14 months prior to separation, the CI reported neck pain and numbness and tingling in the right hand.  The physical examination showed pain with cervical spine flexion and rotation.  

The 12 April 2007 MEB NARSUM examination, 8 months prior to separation, noted complaints of constant dull neck pain with frequent shooting pain into the right upper extremity to the fingertips.  There was tenderness of the cervical spine muscles.  The MEB NARSUM examiner cited the 22 September 2006 cervical ROM noted above.  

At the 12 December 2007 VA Compensation and Pension (C&P) evaluation, 4 days before separation, the CI reported stiffness and weakness in his neck with numbness radiating to his right hand.  The CI reported he could function at the time of pain without medication and he denied the condition had resulted in any incapacitation.  The physical examination showed a normal gait.  There was cervical tenderness without evidence of radiating pain or muscle spasm.  Cervical ROM was flexion of 45 degrees and combined ROM was 310 degrees, with painful motion noted.  The joint function of the cervical spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  Cervical spine X-rays showed intact bony alignment and unremarkable prevertebral soft tissues with degenerative changes at C5-6.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5299-5237 (analogous to cervical strain), citing tenderness and normal nerve conduction studies.  The VA rated the neck condition 10%, coded 5010-5237 (cervical strain), based on the C&P examination 4 days before separation, citing pain.  

The panel agreed that a 10% rating, but no higher, was justified for combined ROM (greater than 170 degrees but not greater than 335 degrees) as reported on the VA examination proximate to 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.  

The panel noted the limitation of cervical spine motion recorded in the MEB NARSUM examination met the threshold for a 20% rating based on forward flexion and combined ROM.  The VA examination recorded full ROM with forward flexion and the combined ROM met the 10% rating criteria.  In assigning probative value to these somewhat conflicting examinations, the panel noted that the VA ROM was performed at the time of separation as compared to the PT ROM cited by the MEB NARSUM examination, which was performed 15 months before separation.  The panel’s rating recommendations are based on ratable criteria at the time of separation; therefore, higher probative value is placed on VA ROM evidence most proximate to that time.  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 there was insufficient cause to recommend a change in the PEB adjudication for the neck condition.  

Chronic LBP.  According to the STR and MEB NARSUM, the CI’s LBP condition began in January 2004 and was exacerbated on 24 December 2004 while dismounting a vehicle during combat operations in full combat gear.  The CI was medically evacuated from theater shortly thereafter.  Multiple lumbar spine MRIs performed from 2004 to 2006 showed DDD.  Surgery was not initially recommended, but on 10 May 2006 the CI underwent L5-S1 fusion surgery.  The CI did well after the surgery, but in September 2006 he reported increased left lower extremity pain similar to what he had experienced prior to surgery.  The 22 September 2006 PT evaluation, 15 months before separation, measured lumbar ROM and ROM after repetition was flexion of 40 degrees (normal 90) and combined ROM was 120 degrees (normal 240).  The therapist noted ROM was limited by pain and all test maneuvers to elicit radicular symptoms caused left lower extremity symptoms.  Left lower extremity electrodiagnostic studies performed on 4 October 2006 were negative for radiculopathy.  

A 6 November 2006 neurosurgery note indicated the CI was experiencing recurrent radicular symptoms of the left lower extremity.  The physical examination showed forward flexion to “about 60 degrees.”  Lumbar spine imaging (MRI (date unknown) and 10 April 2007 CT scan) showed scarring around the surgical site and no additional surgery was recommended.  The NARSUM noted the CI was recently evaluated by neurosurgery on 10 April 2007 and was determined to fail retention standards due to chronic LBP secondary to multilevel lumbar spine DDD.  

During the 19 October 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 14 months prior to separation, the CI reported back pain and numbness and tingling in the left lower extremity.  The physical examination showed pain with lumbar spine flexion and rotation.  

The 12 April 2007 MEB NARSUM examination, 8 months prior to separation, noted complaints of chronic LBP that radiated to the left calf.  The pain was aggravated by strenuous activity, wearing body armor or a back pack, and prolonged standing or sitting.  The physical examination showed no tenderness of the lumbar spine musculature.  The MEB NARSUM examiner cited the 22 September 2006 PT ROM summarized above.  

At the 12 December 2007 VA C&P evaluation, 4 days before separation, the CI reported pain that was 7/10 in severity, radiated to the left calf and was elicited by physical activity.  He denied any periods of incapacitation.  The physical examination showed a normal gait and spinal contours. There was no radiating pain with movement and examination maneuvers for radicular signs were negative.  There was tenderness of the low back without muscle spasm.  Thoracolumbar ROM was flexion of 65 degrees, reduced to 55 degrees with repetition of motion, and combined ROM of 195, reduced to 185 after repetition.  The VA examiner indicated there were no signs of IVDS with chronic and permanent nerve root impairment.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5241 (spinal fusion), citing pain on motion.  The VA initially rated the LBP condition 10%, coded 5010-5237 (lumbosacral strain), based on the C&P examination 4 days before separation, citing flexion of 65 degrees (greater than 60 degrees and not greater than 85 degrees).  The VA subsequently changed the rating to 20% on appeal, effective the date of the initial award, citing that flexion was additionally limited by 10 degrees after repetition of motion due to pain, putting flexion ROM at 55 degrees (greater than 30 degrees and not greater than 60 degrees).  

The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) and/or combined ROM (not greater than 120 degrees) as reported on VA examination, as noted on the ROM evaluation most proximate to separation.  The MEB NARSUM examination performed 8 months before separation cited PT ROM measured 15 months before separation.  However, the flexion ROM noted at the VA examination supported elevation to the next higher rating of 20%.  There was no evidence of sufficient limitation of thoracolumbar flexion to warrant a higher rating.  There was no evidence of 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 recommends a disability rating of 20% for the LBP condition, coded 5241.  

BOARD FINDINGS:  In the matter of the neck condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the LBP condition, the panel unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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 Secondary To a Bulging Intervertebral Disk at the C5-C6 Level	5299-5237	10%	
Chronic LBP Secondary to DDD	5241	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20071216, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015130, 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure