082002RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00406
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060713

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Cannon Crewmember, medically separated for “chronic thoracolumbar spinal pain” and “chronic cervical spine pain,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  The CI submitted a legal brief for this panel’s rating consideration.  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 - 20060605	VARD - 20070420	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Thoracolumbar Spinal Pain	5237	10%	Traumatic DJD of the Thoracolumbar Spine	5242	20%	20070309	
Chronic Cervical Spine Pain	5237	10%	Traumatic DJD of the Cervical Spine	5242	20%	20070309	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Thoracolumbar DDD.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in September 2003 after falling off a vehicle.  Radiologic evaluation (MRI) in October 2005, showed diffuse degenerative disc disease (DDD) with no herniation or nerve impingement noted.  At a 1 November 2005 physical therapy appointment, 8 months before separation, the CI reported stabbing back pain.  The physical examination did not address gait or spinal contour.  

Spinal tenderness and guarded movements were present.  Thoracic range of motion (ROM) was flexion and extension with “major limitation.”  Lumbar ROM was flexion to 55 degrees (normal 90) and combined ROM could not be calculated; painful motion was not addressed.  At a 3 May 2006 PT examination, 2 months prior to separation, forward flexion was to 40 degrees (normal 90) with a combined ROM of 150 degrees (normal 240) with painful motion.  The 10 May 2006 MEB NARSUM examination documented daily back pain aggravated by increased activity; and intermittent lower extremity numbness and tingling without weakness.  The examiner referenced the aforementioned physical therapy ROM.

At the 9 March 2007 VA Compensation and Pension (C&P) evaluation, 8 months after separation, the CI reported chronic back pain without incapacitations.  Physical examination showed a normal gait and spinal curvature.  There was no muscle spasm, tenderness or intervertebral disc syndrome.  Radiculopathy testing (radiating pain due to spinal nerve root compression) were positive bilaterally.  ROM was flexion to 60 degrees and combined ROM was 155 degrees with painful motion.

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain), citing painful motion.  The VA rated the back condition 20% coded 5242 (degenerative arthritis of the spine), based on the VA C&P examination, 8 months after separation, citing limitation of forward flexion.  

The panel agreed a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as documented on the November 2005, May 2006 physical therapy examination and post-separation C&P examination.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  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 chronic thoracolumbar spine condition, coded 5237.

Cervical Spine DDD.  According to the STR and the MEB NARSUM, the CI’s neck condition began after the same fall from a vehicle in September 2003.  Radiographic imaging (MRI) showed degenerative disc disease with disc bulging at C3-4, C4-5 and C5-6 vertebral levels without narrowing, disc herniation, or nerve compromise.

At the 07 October 2005 physical therapy appointment, 9 months before separation, the physical examination showed spinal tenderness with ROM of flexion to 30 degrees (normal 45) and combined ROM was 140 degrees (normal 340) with painful motion.  During the 01 November 2005 follow up physical therapy examination, 8 months before separation, the physical examination revealed spinal tenderness with guarded movements.  ROM was flexion to 35 degrees and combined ROM was 120 degrees; painful motion was not addressed.  During the 10 May 2006 MEB NARSUM examination, 2 months prior to separation, the examiner did not address neck complaints nor take cervical spine ROM.  At a 3 May 2006 physical therapy evaluation, 2 months prior to separation, physical examination showed ROM of flexion to 20 degrees and combined ROM was 140 degrees with painful motion.

At the 9 March 2007 C&P evaluation, 8 months after separation, the CI reported constant neck pain that radiated down the right arm elicited by physical activity, stress and standing.  Incapacitations were denied.  Physical examination showed spinal tenderness and muscle spasm.  ROM was 30 degrees and combined ROM of 205 degrees with painful motion and radiating pain with flexion.

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5237 (cervical strain), citing painful motion.  The VA rated the neck condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination 8 months after separation, citing limitation of flexion.

The panel agreed a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees) as reported on the October 2005, May 2006 and VA C&P evaluations.  A 20% rating is also supported by a combined ROM not greater than 170 degrees as reported on the October 2005, May 2005 and May 2006 evaluations; all most proximate to separation.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  While the CI may have experienced radiating pain from the neck condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  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 cervical spine pain condition, coded 5237.  

BOARD FINDINGS:  In the matter of the chronic thoracolumbar spinal pain condition, the panel unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the chronic cervical spine pain condition, the panel unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  There were 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 Thoracolumbar Spinal Pain	5237	20%	
Chronic Cervical Spine Pain	5237	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160602, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170015524, 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 40% 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