RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01674
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Motor Transportation Operator, medically separated for “chronic neck and back pain” with a disability rating of 10%.  “Hammer digit syndrome, right fifth toe, status-post surgical treatments with persistent pain,” was determined to have existed prior to service (EPTS) and was not rated.  

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 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 - 20050104	VARD - 20051025	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck and Back Pain	5099-5003	10%	Cervical Spine Spondylosis	5010-5242	10%	20051015	
			Herniated Disc L5/S1	5010-5243	10%	20051015	
[Right] Fifth Digit Toe Pain	EPTS	Right Fifth Toe Hammertoe 	5282	NSC	20051015	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Chronic Neck and Back Pain.  The PEB combined the neck and back conditions under a single disability rating, coded 5099-5003 (analogous to degenerative arthritis) and rated 10%.  This approach by the PEB reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if 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 evidence for the neck and low back conditions are presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck and low back conditions began in 2002 when he strained his back carrying a TV upstairs.  A lumbar spine MRI showed a small disc herniation at L5-S1 and a cervical spine MRI showed mild degenerative disc disease at C5-C6 and loss of normal cervical lordosis.  Neurosurgery and orthopedics did not recommend surgery for either problem.  

During the 14 September 2004 internal medicine evaluation, 7 months prior to separation, the CI reported chronic back pain.  Physical examination revealed thoracolumbar range of motion (ROM) with decreased flexion at the waist without spinal tenderness.  Later that same day, an orthopedic evaluation showed an antalgic gait with full cervical ROM; painful motion was not addressed.  The thoracolumbar spine exhibited an abnormal curvature without spasm, but there was tenderness.  The ROM examination showed full ROM, but painful motion was not addressed.  

The 7 Oct 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, revealed an antalgic gait, but gait and spinal contour were not addressed.  There was lumbar spine tenderness and “decreased” ROM.  However, ROM measurements were not provided and spasm and painful motion were not addressed.  

The 1 November 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of neck and back pain which prevented the CI’s ability to lift heavy objects, bend, stoop, or sit in a vehicle for a prolonged period.  Physical examination showed normal lumbar spinal contour and gait.  There was both neck and back tenderness, but no muscle spasm.  The ROM was not addressed for either the neck or back.  

At the 7 December 2004 MEB physical therapy examination, 4 months prior to separation, thoracolumbar flexion was limited to 40 degrees (normal 90) and extension was not performed due to exquisitely painful motion.  However, right and left lateral flexion and rotation were all greater than 30 degrees (normal).  During a 13 September 2005 bone and joint clinic evaluation, 4 months after separation, there was “marked restriction of back motion, forward flexion and lateral bending.” 

At the 15 October 2005 VA Compensation and Pension (C&P) examination, 7 months after separation, the CI reported neck cramping which inhibited the ability to move his head.  The CI also reported his stabbing back pain had resolved.  Physical examination revealed a normal gait and supple neck.  Examination of the neck and low back was not performed due to a recent L5 decompression with lumbar laminectomy on 13 September 2005.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the combined neck and back conditions 10%, coded 5099-5003 (analogous to arthritis, degenerative), citing painful motion and spinal tenderness.  The VA rated the neck and back condition 10% each, the neck was dual coded 5010-5242 (degenerative arthritis due to trauma -degenerative arthritis of the spine) and the back was dual coded 5010-5243 (degenerative arthritis due to trauma – intervertebral disc syndrome), both based on the C&P General examination, citing spinal tenderness.  

The panel first considered if the neck condition, when decoupled from the combined PEB adjudication, remained separately unfitting as established above.  The neck was considered to fail retention standards and was implicated in the NARSUM, profile and the commander’s statement.  Since undue speculation would be required to conclude impairment from the neck would not have unacceptably interfered with MOS performance, members agreed the neck was reasonably justified as separately unfitting.  

The panel agreed a 10% rating, but no higher, was justified for tenderness or painful motion as reported on the preponderance of examinations proximate to separation.  There was no evidence of forward flexion of less than 30 degrees, combined range of motion less than 170 degrees, muscle spasm or guarding severe enough to result in abnormal spinal contour to justify the next higher, 20% rating.  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 that alternate VASRD formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a separate disability rating of 10% for the neck condition, coded 5242 (degenerative arthritis of the spine).  

The panel then considered if the back condition, when decoupled from the combined PEB adjudication, remained separately unfitting as previously established.  The back condition was considered to fail retention standards and was implicated in the NARSUM, profile and the commander’s statement.  Panel members agreed the evidence reasonably justified the functional limitations of the back condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  

The panel considered the probative value of the various examinations proximate to separation in the rating processes.  The panel noted the PEB requested ROM measurements (which were performed by physical therapy) and these results 4 months prior to separation represented the same or similar level of disability portrayed by the bone and joint clinic results 4 months after separation.  The panel agreed a 20% rating, but no higher, was justified for forward flexion greater than 30 degrees but not greater than 60 degrees as reported on the physical therapy evaluation for the PEB.  There was no evidence of limitation of forward flexion to 30 degrees or less or ankylosis of the entire thoracolumbar spine, thus the next higher 40% 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).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a separate disability rating of 20% for the back condition, coded 5242 (degenerative arthritis of the spine).  

Right fifth Digit Toe Pain.  The PEB determined the right fifth (little) toe condition existed prior to service naming it a congenital (present from birth) condition.  The panel found no evidence of hammertoe on the enlistment examination, though it concedes it is likely the hammertoe condition was present to some degree at enlistment due to the requirement for surgery on the right foot within 10 months of enlistment.  The panel next considered whether or not there was evidence of service aggravation.  A presumption of service aggravation may only be overcome by a preponderance of competent medical evidence and accepted medical principles that show the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  The panel considered the presenting complaint at the MEB was post-surgical pain of the right fifth toe; in light of the CI undergoing two separate operations on the right fifth toe while entitled to basic pay, there was certain permanent service aggravation.  Therefore, the panel concluded the condition was ratable.  

According to the STR and MEB NARSUM, the CI underwent right fifth hammertoe surgery in December 2002.  Due to continued pain, he underwent revision surgery on 22 October 2003 without resolution of pain.  According to the commander’s statement, the CI had a profile to wear soft shoes for more than twelve months prior to separation.  

The 4 November 2004 MEB NARSUM addendum, 5 months prior to separation, noted complaints of significant pain in the right fifth toe and inability to wear military footwear.  He reported he had no pain or other foot problems when he wore civilian shoes of his choice or tennis shoes.  Physical examination showed “slight tenderness” of the right fifth toe on the dorsal aspect with full range of motion of the fifth toe.  

At the 15 October 2005 VA C&P evaluation, 7 months after separation, the CI reported tenderness, swelling, redness and some limitation of motion of the fifth toe secondary to pain.  Physical examination revealed a normal gait and X-rays performed in conjunction with the C&P evaluation showed some resorption of the head of the proximal phalanx of the right fifth toe.  

The panel directed attention to its rating recommendation based on the above evidence.  The VA did not service connect the right fifth toe condition, coded 5282 (hammer toe), based on the C&P examination, citing no objective evidence of a worsening pre-existing condition to establish service aggravation.

There was no evidence of residual hammertoe to justify a rating using code 5282.  The panel agreed the degree of disability did not raise to the level of moderate for a 10% rating using code 5284 (foot injuries, other) and there was no diagnosis of metatarsalgia (5279) for a rating using that code.  Though there was X-ray evidence of resorption of the head of the proximal phalanx (arthritis), panel members noted the metatarsophalangeal joint is considered a minor joint for rating purposes and there must be involvement of a group of minor joints for a minimum rating to be assigned.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a separate disability rating of 0% for the right fifth toe condition, coded 5099-5003 (analogous to arthritis, degenerative).  

BOARD FINDINGS:  In the matter of the neck condition, the panel recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  In the matter of the low back condition, the panel recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the right fifth toe condition, the panel recommends a disability rating of 0%, coded 5099-5003 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, the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5242	10%	
Chronic Low Back Pain	5242	20%	
Fifth Digit Toe Pain 	5099-5003	0%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170308, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008158, 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), 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