RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01472
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090502

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Wheeled Vehicle Mechanic, medically separated for “cervical strain” and “lumbosacral strain,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  His conditions continue to worsen and negatively impact daily activities.  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 - 20090224	VARD - 20091028	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical Strain	5237	10%	Bulging Disc at C5-6	5243	20%	20090609	
Lumbosacral Strain	5237	10%	Thoracic Spondylosis, Lumbar Disc Space Narrowing	5243	20%	20090609	
COMBINED RATING:  20%	COMBINED RATING:  80%	

ANALYSIS SUMMARY:  

Cervical Strain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck condition began in August 2008 after a motor vehicle crash where his stopped vehicle was struck from behind by a dump truck.  In September 2008 an MRI of the neck showed a shallow right sided disc protrusion at C5-6 with very mild central canal narrowing without compression on nerves.  There was no surgical indication.  At a 9 January 2009 physical therapy evaluation for the MEB, 4 months prior to separation, physical examination showed normal gait, forward flexion to 10 degrees (normal 45), and combined range of motion (ROM) of 110 degrees (normal 340), with all motions limited by pain.  

The 13 January 2009 MEB NARSUM examination, 4 months prior to separation, noted complaints of not being able to wear his Kevlar helmet due to neck pain.  Physical examination revealed forward flexion to 15 degrees and combined ROM of 115 degrees with pain at the limits of motion.  There were six physical therapy notes between 20 January and 3 March 2009 that described the neck ROM as either “slight restriction” or “full excursion” without providing ROM measurements. 

At the 9 June 2009 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI reported constant dull neck pain with stiffness that radiated to the skull.  Physical examination showed normal gait, forward flexion to 30 degrees, and combined ROM of 135 degrees.  

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 painful motion with limitation of motion.  The VA rated the neck condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing combined range of motion 120 degrees.  In assigning probative value to these somewhat conflicting examinations, members noted the ROM values reported by the physical therapy examiner were significantly worse than those reported by the orthopedic or VA examiners.  The panel also observed there was a general improvement in ROM values in the months preceding separation.  Panel members agreed the C&P examination was more proximate to separation and more reflective of the degree of disability at separation.  

The panel agreed a 20% rating, but no higher, was justified for limitation of flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, as reported on the C&P examination.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest in the 12 months prior to separation to warrant consideration of rating under that alternate VASRD formula.  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).”  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the cervical strain condition, coded 5237.  

Lumbosacral Strain.  According to the STR and MEB NARSUM, the CI’s low back condition began in August 2008 after involvement with a rear-end motor vehicle crash.  In November 2008 thoracic spine X-rays showed degenerative disc disease of the lower thoracic spine, and X-rays of the lumbar spine demonstrated disc space narrowing of the L5-S1 interspace that was only noted on the lateral view.  There was no surgical indication.  The physical therapy evaluation for the MEB showed normal gait, forward flexion to 90 degrees (normal), and combined ROM of 175 degrees (normal 240), with all motions limited by pain but no muscle spasms.  

The MEB NARSUM examination noted complaints of low back pain with carrying a bag of groceries or walking up one flight of stairs.  Physical examination showed forward flexion to 90 degrees and combined ROM of 205 degrees.  Painful motion and muscle spasms were not addressed.  At the C&P examination the CI reported a constant dull low backache with radiation into the buttocks.  Pain increased with sitting, bending, and lifting.  Physical examination showed thoracolumbar forward flexion to 40 degrees and combined ROM was 145 degrees.  Motion was limited by pain with spasm.  The examiner reported antalgic gait in one place and one paragraph later reported normal gait.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5237 (lumbosacral strain), citing painful motion and limitation of motion.  The VA rated the low back condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing limitation of forward flexion.  

In assigning probative value to the examinations in evidence, members noted the ROM values reported by the C&P examiner were significantly worse than those reported at the physical therapy and MEB NARSUM examinations.  The panel agreed the totality of the evidence supported that the physical therapy and MEB NARSUM examinations were more reflective of the degree of disability at time of separation than the C&P examination.  Panel members further agreed there was limitation of forward flexion and combined ROM of the thoracolumbar spine and tenderness to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine as reported on the physical therapy and MEB NARSUM examinations.  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 documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  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).”  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 lumbosacral strain condition.  

BOARD FINDINGS:  In the matter of the cervical strain condition, the panel majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommends modification to 30% and did not elect to submit a minority opinion.  In the matter of the lumbosacral strain condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Cervical Strain	5237	20%	
Lumbosacral Strain	5237	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180007886, 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 30% 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), XXXXXXXXXXXXXXXXXX.

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

Sincerely,					      
Enclosure