RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  pd-2016-00884
BRANCH OF SERVICE:  army	SEPARATION DATE:  20040328

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Counterintelligence Agent, medically separated for neck and upper back pain with a disability rating of 10%.  

CI CONTENTION:  “Review all conditions”.  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 – 20040108 	VARD - 20040414	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Subjective Neck and Upper Back Pain, w/o Neurologic or Electrodiagnostic Abnormality	5299- 5237	10%	Cervical Strain	5237	10%	20030822	
			Degenerative Changes Thoracic Spine with Lumbar Involvement	5242	10%	20030822	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30% 	

ANALYSIS SUMMARY:  

Chronic Subjective Neck and Upper Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck and upper back condition began in May 2002 while deployed after a motor vehicle accident (MVA).  Cervical spine X-ray were negative for a fracture.  Neurology evaluation on 11 June 2002 revealed a full range of motion (ROM) of the neck with a tender trapezius and sternocleidomastoid muscles.   Computerized tomography of the head on 25 June 2002, ordered for nausea and difficulty in balance since the MVA, was normal.  At a physical therapy examination on 3 September 2002 both neck flexion (normal 45 degrees) and back flexion (normal 90 degrees) were 70 degrees each.  
At a physical medicine and rehabilitation (PM&R) evaluation, TENS (transcutaneous electrical nerve stimulation) was added to the physical therapy treatment protocol.  A bone scan, ordered for persistent cervical, thoracic, and lumbar pain with X-rays negative for a fracture, demonstrated a probable rib fracture in the left posterior sixth rib, but no abnormal uptake in the spine to suggest a fracture.  At PM&R clinic visit on 30 October 2002 the CI received a trigger point injection (TPI) to the left posterior neck and additional TPIs on 31 January 2003 and 6 March 2003 along with modifications in his medication.  Magnetic resonance imaging (MRI) on 8 April 2003 of the cervical and thoracic spine was normal.  Acupuncture was begun in April 2003.  An electrodiagnostic study in June 2003 was normal and without evidence of a right ulnar or right median neuropathy or evidence to suggest a right cervical motor radiculopathy.  

At the 22 August 2003 VA Compensation and Pension (C&P) examination, 7 months before separation, the CI reported constant neck pain and muscle spasm.  Physical examination showed cervical spine ROM measurements for flexion of 65 degrees (normal 45 degrees) and a combined ROM of 330 degrees (normal 340 degrees) with pain on motion.  Thoracic ROM was performed with pain; lumbar spine ROM was normal with painful motion.  The CI displayed a normal gait, normal reflexes, and normal strength.  X-rays of the thoracic spine on 22 August 2003 demonstrated accentuation of the normal kyphosis with minor hypertrophic changes of the dorsal vertebrae, while X-rays of the lumbar spine were normal.  

At an occupational therapy evaluation on 22 October 2003, 5 months before separation, cervical spine flexion was 40 degrees and the combined ROM was 195 degrees.  The 29 October 2003 MEB NARSUM examination, 5 months prior to separation, noted complaints of difficulty with overhead work and prolonged standing.  Physical examination showed the thoracic and lumbar spine demonstrated normal curves and normal paravertebral musculature.  The CI could easily bend forward and could walk on his heels and toes.  He had a normal gait, normal reflexes, and normal strength.  Reported cervical spine ROM measurements were the same as those as the occupational therapy measurements 1 week earlier.  PM&R treatments including PENS (percutaneous electrical nerve stimulation or percutaneous neuromodulation therapy (PNT)), acupuncture, TPIs, and deep massage continued through December 2003 afforded temporary relief.  
  
The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the combined the neck and upper back conditions as a single unfitting condition at 10%, coded 5299-5237 (cervical spine strain), citing a combined cervical ROM 195 degrees. The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications. The VA also assigned a 10% rating using the 5237 code, and rated the thoracic spine (with lumbar involvement) at 10% coded 5242 (degenerative arthritis of the spine), citing degenerative changes of the thoracic spine with lumbar involvement.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The neck pain was the main focus of clinical attention over time and at physical therapy and PM&R visits treatment was to the predominant symptomatic component of the combined chronic subjective neck and upper back pain.  

Members agreed that the subjective neck pain as an isolated condition, prevented the CI from meeting the physical requirements of his MOS and accordingly merits an unfitting determination and a separate rating.  With regard to fitness and the rating for the chronic thoracic pain, clinical findings were limited, although at the C&P examination, motion was reported to be painful, but there were no ROM thoracic measurements; however, lumbar ROM measurements were normal.  There were no thoracic ROM measurements at the NARSUM examination or antecedent occupational therapy examination.  Furthermore, imaging studies were normal except for accentuation of the normal kyphosis with minor hypertrophic changes of the dorsal vertebrae.  Panel members concluded there was not a preponderance of evidence showing that the chronic thoracic pain alone was sufficiently severe to significantly interfere with performance of duties.  Therefore, the thoracic pain by itself was not unfitting and is not ratable.  

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 combined ROM (greater than 170 degrees but not greater than 335 degrees) reported on the MEB and VA examinations 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.  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 neck and upper back condition.  

BOARD FINDINGS:  In the matter of the neck and upper back condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There were 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 20160916, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170017224, 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