RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01562
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040304

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E4, Motor Transport Operator, medically separated for “chronic neck pain” and “chronic low back pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%. 

CI CONTENTION:  Review of his condition was rushed and he continues to have pain.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20031126	VARD - 20040902	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5299-5237	10%	Chronic Cervical Strain	5299-5237	10%	20040428	
Chronic Low Back Pain	5299-5237	0%	Chronic Low Back Pain	5299-5237	10%	20040428	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI’s neck and low back pain (see below) began in December 2000 following a motor vehicle accident.  The CI was hospitalized for 3 days with severe back and neck pain.  At a clinic visit on 18 October 2002 the CI reported episodic flare-ups that were treated with physical therapy and at the orthopedic and chiropractic clinics.  On 22 April 2003, an MRI showed central protrusion of the C5-6 disk with rule out central protrusion of the C6-7 disk.  
The 26 September 2003 MEB NARSUM examination, 7 months prior to separation, noted complaints of the CI being unable to do his Army physical fitness test (APFT) with his condition worsening.  Persistent neck pain was reported.  Physical examination showed a normal curve of the neck and normal paravertebral musculature.  ROM showed flexion 35 degrees (normal 45) and extension 70 degrees (normal 45).  The CI underwent chiropractic manipulative therapy and hot packs from November 2003 until 13 April 2004.  

At the 28 April 2004 VA Compensation and Pension (C&P) evaluation, 7 weeks after separation, the CI reported pain as crushing, aching, and sometimes, burning and sharp.  Pain severity was reported at 9-10/10 (10 being the worst pain) with pain traveling to the shoulders and back.  Pain was elicited by physical activity and stress, and relieved by Motrin (ibuprofen, a nonsteroidal anti-inflammatory drug (NSAID)), naproxen (NSAID), and capsaicin cream (a pain reliever).  Physical examination showed a normal neck appearance and gait.  Tenderness was noted on the left cervical area.  Muscle spasm was noted with no residual pain on movement.  ROM showed flexion of 45 degrees with pain occurring at 45 degrees (normal 45), extension 45 degrees, right lateral flexion 45 degrees (normal 45), left lateral flexion 45 degrees (normal 45), right rotation of 80 degrees (normal 80), and left rotation 80 degrees (normal 80).  ROM was not limited by fatigue, weakness, lack of endurance, or incoordination.  X-rays of the cervical spine dated 25 May 2004 were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5299-5237 (cervical strain), citing “without neurological abnormality with combined range of motion 225 degrees.”  The VA also rated the neck condition 10%, coded 5299-5237, based on the C&P examination 7 weeks after separation, citing forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees.

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) as reported on the NARSUM examination. There was no muscle spasm or guarding severe enough to result in an abnormal gait or abnormal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  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 Back Pain.  According to the STR and the MEB NARSUM, the CI’s low back and neck pain (see above) condition began in December 2000 following a motor vehicle accident.  The CI was hospitalized for 3 days with severe back and neck pain.  At a clinic visit on 18 October 2002 the CI reported episodic flare-ups and had treatment with physical therapy as well as having received treatment at orthopedic and chiropractic clinics.  The examination was notable for a full ROM of the spine with pain.  The CI complained of back pain with pain shooting down the left leg for one day after an APFT test.  Examination revealed a full ROM and tenderness to palpation of the lower back.  On 22 April 2003, MRI of the lumbar spine showed an annular tear of L5-S1 at the posterior central area of the intervertebral disc.  

The 26 September 2003 MEB NARSUM examination, 7 months prior to separation, noted complaints of being unable to do the APFT and a worsening condition.  Physical examination showed normal curve and normal paravertebral musculature.  ROM showed forward bending to 100 degrees (normal 90) and extension 30 degrees (normal 30).  Below the waist there were no neurologic deficits.  Muscle mass and strength were normal.  Chiropractic manipulation therapy and heat applications were performed from September 2003 through April 2004.

At the 28 April 2004 C&P evaluation the CI reported crushing, aching, squeezing, burning sharp, and cramping pain.  Severity was 10/10.  Pain was elicited by physical activity, stress, and sometimes came on by itself.  Pain was relieved by naproxen and capsaicin cream.  Physical examination showed a normal gait.  Tenderness and muscle spasm were noted, but no radiation of pain on movement was reported.  Straight leg raising test (to determine nerve root irritation) was negative on right and left.  ROM showed flexion 90 degrees with pain occurring at 75 degrees, extension of 30 degrees, right lateral flexion 30 degrees (normal 30), left lateral flexion at 30 degrees (normal 30), right rotation 30 degrees (normal 30), and left rotation 30 degrees (normal 30).  ROM was not limited by fatigue, weakness, lack of endurance, or incoordination.  No bowel or bladder dysfunction was reported.  X-rays of the lumbar spine dated 25 May 2004 revealed minimal scoliosis, but was otherwise normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5299-5237 (lumbosacral strain), citing “without neurologic abnormality, forward flexion 100 degrees, without muscle spasm or documented tenderness.”  The VA rated the back condition 10%, coded 5299-5237, based on the C&P examination 7 weeks after separation, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees.

There was no limitation of thoracolumbar spine motion to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine at the time of separation and the NARSUM did not note the presence of painful motion, muscle spasm, guarding or localized tenderness.  There was no history or evidence of vertebral body fracture with loss of 50 percent or more of the height, nor was there evidence of additional functional loss that would impact functioning in the average civil occupation.  However, the VA examination, which was more proximate to separation and more in depth than the NARSUM examination, thereby having a higher probative value, did show muscle spasm and painful motion.  Therefore, a 10% rating is not unreasonable.  Furthermore, the CI did have muscle spasm documented at the VA examination and X-rays a month later did demonstrate minimal scoliosis, although clinically it was not noted.  Therefore, a 20% rating would be speculative, since the degree of muscle spasm as well as the quantitative extent of scoliosis was not in the STR or noted at the C&P evaluation.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the chronic back pain condition, coded 5299-5237.

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 chronic back pain condition, the panel unanimously recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5299-5237	10%	
Chronic Back Pain	5299-5237	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161013, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004648, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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 also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure