RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00736
BRANCH OF SERVICE:  army	SEPARATION DATE:  20040313

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E-5, Military Police, medically separated for “chronic neck pain” with a disability rating of 10%.  

CI CONTENTION:  “My Service disability rating should be higher because when I left active duty on 03/13/2004, the VA rated me at 40% combined overall, which was later raised to 60% combined overall in 2006, while the Army only gave me a 10% disability 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 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 - 20040206	VARD - 20041116	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain (Back:  See Text)	5243	10%	Herniated Nucleus Pulposus of L5-S1 with Left S1 Nerve Root Radiculopathy	5237	20%	20040914	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  NOTE:  The PEB-rated VASRD code 5243 (intervertebral disc syndrome) is not specific for either the cervical or thoracolumbar spine, and the narrative summary (NARSUM) and Medical Evaluation Board (MEB) chronicled duty-impairing back pain versus neck pain.  Communications between the PDBR and the Army DDA (Designated Decision Authority) confirmed that this case involved a low back disability.  It was likely the PEB mistakenly documented “neck” pain as the disabling condition.  Therefore, the panel will consider the CI’s unfitting condition as “back” pain.  

Chronic Back Pain.  According to the service treatment record (STR) and the MEB NARSUM, the CI’s back pain condition began in July 2003 while lifting a trailer into the back of a Humvee while deployed to Kuwait.  Magnetic resonance imaging (MRI) in November 2003 showed degenerative changes with a small right paracentral disc herniation of L5/S1, causing mild narrowing of the right lateral recess of L5/S1, as well as mild central canal narrowing.  There was no apparent impingement of the nerve root.  Electromyogram (EMG) studies of the upper extremities were conducted in November 2003 to rule-out cervical spine involvement and were normal for both arms.  The MEB forwarded “back pain/herniated nucleus pulposus at L5/S1” and “spondylolisthesis at L5/S1” for PEB adjudication.  

At the 28 October 2003 orthopedic clinic examination, 5 months prior to separation, the CI reported experiencing “hot pains” in his lower extremities.  Pain was attributed 70 percent to leg symptoms and 30 percent to the back.  Physical examination showed the CI was neurovascularly intact in his lower extremities, with normal sensation, reflexes and strength after testing.  

During the 1 December 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, physical examination showed tenderness at L5/S1 with extension.  

The 5 December 2003 MEB NARSUM examination, 3 months prior to separation, noted complaints of frequent painful exacerbations which radiated from his back down his legs, with right greater than left.  He could not carry heavy objects at all or wear a gun belt without extreme discomfort.  He was unable to sit for prolonged periods of time (greater than 1 hour).  Pain was described at baseline 3-4/10 (with 10 being the worst pain) with pain increasing to 6/10 occurring once a week in response to increased activity.  The CI was a parole officer in his civilian life, and he claimed he would be unable to perform some of the day-to-day activities such as serving arrest warrants or lift heavy objects in that occupation.  Physical examination showed a positive straight leg raise on the right (provocative test for radiculitis).  Gait was non-myelopathic (no spinal cord involvement).  

The MEB NARSUM addendum documented physical therapy-provided range of motion (ROM) measurements performed on 8 January 2004 (2 months prior to separation).  ROMs were accomplished IAW American Medical Association (AMA) guidelines with separate lumbar and thoracic spine ROMs.  The percentages of normal ranged from 16 percent (thoracic rotation) to 176 percent (lumbar flexion exceeding 100 degrees with AMA normal of 60 degrees).  There was also a hand-written note that indicated combined ROM of 200 degrees.  

At the 14 September 2004 VA Compensation and Pension (C&P) evaluation, 6 months after separation, the CI reported a history of pain which travelled to both legs, (left > right).  Pain was described as cramping, sticking, burning and sharp in nature, with intensity of 6/10.  Pain was elicited spontaneously and would be relieved with rest and medication.  The CI could not stand or sit for prolonged periods.  Over the prior 12 months, the CI reported being prescribed bed rest by a physician for a total of 21 days.  Physical examination showed tenderness along the paravertebral spine.  The CI’s gait was antalgic and he walked with a limp.  Muscle spasm was present.  Range of motion (ROM) demonstrated pain on motion.  Measurements were recorded as 60 degrees forward flexion (normal = 90) with a combined ROM of 180 degrees (normal = 240).  The CI experienced pain, fatigue, and lack of endurance, but no further loss of ROM upon repetitive testing.  There was no reported bowel or bladder dysfunction and no ankylosis of the spine.  

The panel deliberated the probative value of the disparate examination in-evidence.  The NARSUM addendum was closest to separation; however, measurements were not IAW VASRD guidelines (Plate V and §4.46 - accurate measurement) and were not directly transferable to VASRD thoracolumbar rating criteria.  However, those measurements were best aligned with forward flexion of the thoracolumbar spine greater than 60 degrees and with combined ROM of the thoracolumbar spine greater than 120 degrees.  The post-separation C&P examination indicated significantly worsened symptoms and findings than noted elsewhere in the STR, and was considered an outlier or post-separation worsening.  

The panel agreed that the STR had the highest probative value for rating at separation and that a rating higher than 10% was not warranted based on ROM limitations, or post-separation findings of spasm and abnormal gait.  Symptoms such as pain (whether or not it radiates) are included in the general spine formula rating.  There was no documentation of incapacitating episodes with physician-prescribed bed rest which would provide for a higher rating under the intervertebral disc syndrome (IVDS) formula.  

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 back condition.  

BOARD FINDINGS:  In the matter of the back (PEB “neck”) condition and IAW VASRD §4.71a, the panel unanimously or majority 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 20160915, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170014164, 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.

Sincerely,					      
						      					
Enclosure