RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00792
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20050330

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Cannon Crewmember, medically separated for “neck pain with degenerative disc disease with right radicular symptoms” and “upper and lower back pain with degenerative disc disease” rated at 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  The CI made no specific contention.  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 – 20050303	VARD - 20050823	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck Pain 	5237	10%	Cervical Herniated Nucleus Pulposus 	5237	20%	20050718	
Upper and Lower Back Pain 	5237	10%	Thoracic Herniated Nucleus Pulposus 	5237	40%	20050718	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Neck Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck condition began in April 2004, while deployed, after the HMMWV he was riding in came to a quick stop and was propelled forward, impacting the back part of the driver’s seat.  Within 2 or 3 days, his neck started to hurt and he was medically evacuated.  An MRI revealed a disc herniation at C5-6 with a mild pressure effect upon the spinal cord.  There was an osteophyte/disc complex at C3-4 producing mild flattening of the spinal cord at this level.  There was no surgical indication.  

The December 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, showed tenderness on the C5 facet and levator scapulae.  At the 6 January 2005 MEB NARSUM examination, 3 months prior to separation, the CI complained of sharp and stiff 3-4/10 neck pain.  Upon examination, positive upper trapezius trigger points were noted bilaterally.  Passive range of motion (ROM) was flexion of 15 degrees (normal 45) and combined ROM was 85 degrees.  At the physical therapy (PT) ROM evaluation on 22 February 2005, 1 month prior to separation, active ROM, after repetition, was flexion of 40 degrees and combined ROM of 175 degrees, with painful motion.  

At the 18 July 2005 VA Compensation and Pension (C&P) evaluation, 4 months after separation, the CI reported constant neck stiffness and pain despite treatment.  Physical examination showed ROM of the cervical spine was flexion of 40 degrees and combined ROM of 260 degrees.  There was pain at the end of all movements.  After repetition, flexion was limited to 10 to 15 degrees.  Objective findings of painful motion was noted.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5237 (cervical strain), citing combined ROM of 210 degrees limited by muscle guarding and pain.  The VA rated the neck condition 20%, coded 5237, based on the C&P examination 4 months after separation, citing forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees.  

The probative value of the VA examination was compromised by its remoteness (4 months) from the date of separation, and reflected post-separation worsening.  Therefore, the panel placed preponderant probative value on the PT ROM examination.  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), as reported on the PT 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.  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 that there was insufficient cause to recommend a change in the PEB adjudication for the neck condition.  

Upper and Lower Back Pain.  According to the STR and the MEB NARSUM, the CI injured his back in the same HMMWV accident noted above.  An MRI of the lumbar spine was normal, but the thoracic spine MRI revealed likely disc herniation at T9 and T6-7 and a disc protrusion at T11-12.  The neurosurgeon did not recommend surgical intervention.  

The December 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, showed tenderness to palpation, right greater than left along the paraspinous region with guarded ROM.  During the 6 January 2005 MEB NARSUM examination, 3 months prior to separation, the CI complained of back pain which radiated down the legs.  Physical examination showed tenderness and spasms, but gait and spinal contour were not mentioned.  Passive ROM was recorded, but there was no measurement recorded for flexion and there were two measurements for extension (30 degrees and 0 degrees).  At the 22 February 2005 PT ROM evaluation, 1 month prior to separation, active ROM, after repetition, was flexion of 20 degrees (normal 90) and combined ROM of 50 degrees (normal 240), limited by pain.  

At the C&P evaluation the CI reported low back pain radiating to the anterior aspect of the right thigh.  Gait was noted as “not unsteady.”  Physical examination showed thoracolumbar ROM as flexion to 40 degrees and combined ROM of 155 degrees, with pain reported at the end of all movements.  After repetition, movements the lumbar spine ROM were decreased to 15 degrees due to mild increase in weakened movement and lack of endurance.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain), citing ROM limited by muscle guarding and pain.  The VA rated the back condition 40%, coded 5237 (lumbosacral strain), based on the C&P examination, citing forward flexion of 30 degrees or less after repetition.  The panel agreed that a 40% rating, was justified for limitation of flexion not greater than 30 degrees) as reported on the February PT ROM examination and the VA ROM following repetition.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 40% for the upper and lower back condition, coded 5237.  

BOARD FINDINGS:  In the matter of the neck condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the back condition, the panel recommends a disability rating of 40%, coded 5237 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	
Neck Pain 	5237	10%	
Upper and Lower Back Pain	5237	40%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180004909, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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 50% 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure