RECORD OF PROCeediNGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-01553
BRANCH OF SERVICE:  army	SEPARATION DATE:  20050916

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Heavy Wheeled Vehicle Mechanic, medically separated for “chronic neck pain” rated 0%, and “chronic non-radiating upper back pain”  which was determined to have existed prior to service (EPTS) and not rated.  The combined disability rating was 0%.  

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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the MEB (Medical Evaluation Board), but determined by the Physical Evaluation Board (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 - 20050819	VARD - 20060526	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5243	0%	Cervical Spine DDD	5243	10%	20060125	
Chronic Non-Radiating Upper Back Pain	5243	EPTS	Thoracic Spine DDD	5243	10%		
Bilateral Knee Pain, DDD	Not Unfitting	Right Knee Osteoarthritis	5257	NSC		
		Left Knee Osteoarthritis	5257	NSC		
Bilateral High-Frequency Hearing Loss		Bilateral Hearing Loss	6100	NSC	20080208	
Costochondritis		Costochondritis	5297	NSC	20060125	
GERD		Acid Reflux Disease	7346	0%		
Irritable Bowel Syndrome (IBS)		IBS	7319	NSC		
Migraine Headaches		Headaches Associated with Cervical Spine DDD	8100	0%		
Hypertension		No VA Placement	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Chronic Neck Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck and upper back conditions began in 1992 after being hit by a tree branch.  Although the CI’s injury occurred in 1992, the earliest medical records contained in the case file were dated in 2002.  A 29 April 2005 physical therapy (PT) examination, 5 months prior to separation, revealed painful, but normal range of motion (ROM) of the cervical spine.  

At the 21 June 2005 MEB NARSUM examination, 3 months prior to separation, the CI’s chief complaint was “upper back and neck pain.”  The physical examination (PE) addressed the absence of tenderness or spasms about the cervical spine.  Additionally, there was no comment with regards to either ROM or painful motion of the cervical spine.  Sensation and motor reflexes of the upper extremities were normal.  A pain management encounter on 12 August 2005, 1 month prior to separation, revealed normal, but painful ROM as well as tenderness of the cervical spine.  

At the 25 January 2006, VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported that cold weather increased neck stiffness.  A review of a cervical MRI detailed the presence of C5-6 stenosis and degenerative disc disease (DDD).  His PE revealed decreased ROM as well as painful motion of the cervical spine, noting forward flexion of 40 degrees (normal 45) and a combined ROM of 205 degrees (normal 340).  The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 0%, coded 5243 (intervertebral disc syndrome [IVDS]), citing full ROM and the absence of spasms or tenderness.  Utilizing the same impairment code, the VA rated the neck condition 10%, based on the C&P examination, citing limitation of motion.  

Panel members first agreed that the greatest of probative value be apportioned to the pre-separation examinations due to their proximity to separation.  Members then agreed that a 10% impairment rating was supported by evidence of persistent painful motion (VASRD 4.59) of the cervical spine as recorded on the pre-separation PT and pain management examinations.  Although considered, but less probative, the post-separation VA examination supported a 10% rating due to limitation of cervical motion of forward flexion greater than 30 degrees but not greater than 40 degrees; or, combined ROM greater than 170 degrees but not greater than 335 degrees.  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 that would provide for a higher rating under that formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the cervical spine condition, coded 5243.  

Chronic Non-Radiating Upper Back [Thoracic] Pain.  As noted in the summary of case, the PEB determined that the CI’s chronic upper back pain was EPTS.  The DD Form 199 specifically cited, “[The condition] is a pre-existing condition with natural progression and no documentation of injury to substantiate permanent service aggravation [PSA].”  The panel’s initial charge is evaluating the fairness of the PEB’s EPTS determination.  Therefore, members focused their attention on determining whether there actually was PSA of the EPTS thoracic spine condition.  A presumption of service aggravation may only be overcome by a preponderance of medical evidence that the natural progression of a pre-existing condition was unaltered by any consequence of military service.  

According to the STR and MEB NARSUM, the CI’s upper back condition also began in 1992 after being struck by a tree branch.  In November 2002, an MRI of the thoracic spine revealed moderate central disc protrusion/herniation of T7-8 and T8-9 that produced moderate impressions on the anterior thecal sac (a sheath surrounding the spinal cord).  A repeat MRI of the thoracic spine conducted on 14 October 2005 revealed a small central disc herniation at T8-9, a bulge of the annulus (the tough outer portion of the disc that encases the soft inner disc and also connects the adjacent upper and lower vertebra) versus small disc herniation at T7-8 and a bulge of the annulus at T6-7 and T9-11.  A PT examination on 29 April 2005, 5 months prior to separation, revealed “trunk” flexion to 85 degrees (normal 90) and combined ROM 235 degrees (normal 240) with painful motion.  

During the 21 June 2005 MEB NARSUM examination, the CI reported upper back pain aggravated during pre-deployment training in August 2004 that included wearing military gear, such as a flak vest and rucksack.  His detailed spinal-focused PE revealed local tenderness without spasms about T9-10.  Bilateral upper extremity strength, sensation and motor reflexes were normal.  Thoracic spine ROM and painful motion were not addressed.  In the 25 January 2006 VA C&P examination, 4 months after separation, the CI summarized his traumatic history and treatment regimes. PE revealed a steady gait, upright posture, and no evidence of spinal tenderness and spasms.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB did not numerically rate the upper back condition, but coded it as 5243, citing the condition was pre-existing with natural progression and no documentation of injury to substantiate PSA.  Utilizing the same VASRD code, the VA rated the upper back condition 10%, based on the C&P examination, citing limitation of motion.  

The panel addressed whether the CI’s upper back condition was an EPTS condition without PSA or an EPTS condition that was PSA and thus considered compensable IAW DoDI 1332.38.  Panel members first agreed that the original inciting trauma to the CI’s upper spine did occur prior to service and therefore concluded that the condition was appropriately noted as EPTS.  Panel members then carefully reviewed and compared the MRI’s of the thoracic spine taken in 2002 and 2005 and concluded that although there was different verbiage used to describe the spinal abnormalities, the multi-level disc abnormalities of either herniations and/or protrusions of multi-level discs were nearly unchanged.  Despite consistent radiographic findings, and not having a significant worsening of X-ray findings, panel members then considered the timing of the CI’s presenting physical symptoms.  Clearly, pre-separation records revealed the CI’s pain increased with specific aggravators of his EPTS condition occurring from wear of required extra military gear during preparation for a deployment.    After due deliberation, the panel concluded that the evidence showed the EPTS upper back condition worsened beyond the expected natural progression of the condition and was determined to be PSA and eligible for disability compensation.  

The panel agreed that a 10% rating was supported by both local spinal tenderness seen on the NARSUM examination and painful spinal motion (VASRD 4.59), as recorded on the proximate pre-separation PT examination.  Members discussed and agreed that the term “trunk” as used by PT was to include areas of the thoracic spine.  Additionally, the panel agreed that any rating determination in this case should be applied by the rating criteria as listed under the VASRD General Rating Formula for Diseases and Injuries of the Spine.  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 that would provide for a higher rating under that formula.  The panel also noted there was no objective evidence of a radiculopathy with functional impairments (such as weakness) nor performance-based evidence from the record that this condition significantly interfered with satisfactory duty performance at or near separation.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the upper back condition, coded 5243.  Panel members additionally agreed that there was no STR evidence of an EPTS rating assessed at the time of enlistment; therefore, the panel will not apply an EPTS deduction IAW VASRD §4.22.  
Contended PEB Conditions:  Bilateral Knee Pain, Bilateral High-Frequency Hearing Loss, Costochondritis, GERD, IBS, Migraine Headaches, and Hypertension.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions failed retention standards, but the bilateral knee pain and bilateral hearing loss were permanently profiled and implicated in the commander’s statement.  A PT examination performed on 21 June 2005, 3 months prior to separation, noted crepitus about each kneecap.  All other knee physical parameters to include ROM, joint swelling, tenderness, laxity, peripheral strength, sensation, or instability were normal or not present, bilaterally.  

In regards to the contended hearing loss condition, the 2 March 2005 audiometric testing , 6 months prior to separation, noted the CI’s diagnosis as “low normal hearing” and cited, “Today’s [hearing] levels are similar to those on induction examination in 1998.”  Pursuant to the above findings, all panel members agreed there was no performance-based evidence from the record that either condition significantly interfered with satisfactory duty performance at or near separation and therefore, the panel concluded there was insufficient cause to recommend a change in the PEB’s fitness determinations for the bilateral knee pain and hearing loss conditions.  

The contended costochondritis, GERD, IBS, migraine headaches, and hypertension conditions were not permanently profiled or implicated in the commander’s statement.  Members agreed there was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance at or near separation.  Therefore, the panel concluded there was insufficient cause to recommend a change in the PEB’s fitness determination for any of the above listed conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the cervical spine condition, the panel recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the upper back condition, the panel majority concluded there was permanent service aggravation and recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended bilateral knee pain, bilateral high-frequency hearing loss, costochondritis, GERD, IBS, migraine headaches, and hypertension conditions, the panel recommends no change from the PEB determinations as not unfitting.  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, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5243	10%	
Chronic Non-Radiating Upper Back Pain	5243	10%	
COMBINED	20%	

AR20190004075, XXXXXXXXXX

XXXXXXXXXX
XXXXXXXXXX
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Dear XXXXXXXXXX:

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.