RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-01709
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070426

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E7, Career Counselor, medically separated for “chronic upper back pain (cervical and thoracic)” with a disability rating of 10%.  

CI CONTENTION:  The condition should have been rated higher.  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 - 20061106	VARD - 20070718	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Upper Back Pain (Cervical and Thoracic) 	5299-5237	10%	Mild Degenerative Change Cervical Spine	5242	0%	20070130	
			Lumbar Disc Degeneration 	5243	0%	20070130	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Upper Back Pain (Cervical and Thoracic).  The PEB combined the neck and back conditions as a single unfitting condition analogously coded 5237 and rated 10%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of 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 panel first considered if the neck and back conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting.  Note 6 from the VASRD general spine rules requires separate rating evaluations of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments.  The permanent profile listed both cervical and thoracic spine pain and the commander’s statement indicated that both the CI’s neck and low back symptoms interfered with satisfactory military performance.  Therefore, the panel concluded there was not a preponderance of evidence of the service records that overcame the panel’s presumption that the bundled neck and back conditions were reasonably considered separately unfitting.  Therefore, the evidence for the neck and back conditions is presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Chronic Cervical Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck condition began in 1998 without injury or trauma, but worsened following repeated airborne operations, rucking and carrying gear.  An MRI in November 2005 revealed mild spondylotic disease of the cervical spine, most remarkable at C5-6, where there was a small central disc protrusion minimally effacing the cord, but there was no significant canal or foraminal stenosis.  

The 21 September 2006 MEB NARSUM examination, 7 months prior to separation, noted complaints of cervical stiffness and spasms especially between the upper scapula with daily 3-4/10 pain.  Physical examination showed normal muscle strength throughout the upper and lower extremities.  Cervical spine range of motion (ROM) testing showed decreased rotation left and right and there was stiffness and moderate pain with flexion.  The cervical spine ROM study performed by physical therapy (PT) on 3 October 2006, showed flexion of 45 degrees (normal) and pain-limited combined ROM of 255 degrees (normal 340), after repetition.  

At the 30 January 2007 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported 5/10 cervical spine pain and stiffness that occurred intermittently as often as five to six times a week, elicited by physical activity.  He did not recall any incapacitation requiring bed rest.  Physical examination of the cervical spine showed normal gait and posture.  There was no evidence of radiation pain on movement, muscle spasm or tenderness.  Cervical spine ROM testing showed flexion of 45 degrees and combined ROM of 340 degrees.  Pain, weakness, lack of endurance, fatigue or incoordination did not further impact ROM after repetitive use.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the neck condition with the back condition and applied a single 10% rating (coded 5299-5237), citing ROM limited by pain.  The VA rated the neck condition 0%, coded 5242 (degenerative arthritis of the spine), based on the VA C&P examination, citing no evidence of painful or limited motion.  The panel agreed that the MEB examination was more consistent with STR entries and more reflective of the anticipated severity based on the clinical pathology than the C&P examination.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 170 degrees, but not greater than 335 degrees), as recorded on the PT MEB examination.  There was no muscle spasm or guarding resulting in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes, which 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 neck condition, coded 5299-5237.  

Chronic Thoracic Pain.  According to the STR and MEB NARSUM, the CI’s back condition began concurrent with the above neck condition.  An MRI in May 2006 revealed spondylosis and degenerative disc disease from T6 through T10, most prominent at T7-8 and T8-9, with small posterior disc osteophyte complexes and no significant central canal stenosis or neural foraminal narrowing.  

At the time of the MEB specialty care consultation on 25 August 2006, 8 months prior to separation, the CI reported 5/10 back pain.  On examination the thoracolumbar spine had significant tenderness centrally from T5 through T8 with very mild paraspinal muscle tenderness.  Muscle tone, bulk, strength and reflexes were normal, and sensation was intact.  

During the 21 September 2006 MEB NARSUM examination, 7 months prior to separation, the CI complained of daily 2/10 thoracic spine pain, which worsened to 5/10 with activity.  Physical examination revealed negative straight leg raise (STR) testing.  There was no muscle wasting, weakness, clonus, spasticity or Babinski signs.  Lumbar ROM testing showed pain with extension and flexion.  

The thoracolumbar spine ROM evaluation performed by PT on 3 October 2006, 6 months before separation, showed flexion of 70 degrees (normal 90) and combined ROM of 190 degrees (normal 240), after repetition; limited by pain.  

At the 30 January 2007 VA C&P examination, 3 months before separation, the CI reported stiffness and pain in the thoracic area.  The CI characterized the pain as squeezing, aching, oppressing, burning and sharp with a severity of 6 out of 10.  The pain was elicited by physical activity and sleeping in the wrong position.  He did not recall any incapacitation which required bed rest.  Physical examination of the thoracolumbar spine did not reveal any evidence of radiating pain on movement, muscle spasm or tenderness.  The SLR test was negative bilaterally.  Thoracolumbar ROM testing showed flexion of 90 degrees and combined ROM of 240 degrees.  Pain, weakness, lack of endurance, fatigue and incoordination did not impact ROM after repetitive use.  The position of the head and curvature of the spine was within normal limits and there was symmetry in appearance and spinal motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the back condition 0%, coded 5243 (intervertebral disc syndrome), based on the VA C&P examination, citing no evidence of painful or limited motion.  The panel agreed the MEB examination was more consistent with outpatient notes and more reflective of the anticipated severity based on the clinical pathology than the C&P examination. 

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the PT MEB examination.  There was no muscle spasm or guarding resulting in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on that basis.  There was no documentation of IVDS with incapacitating episodes, which 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 back condition, coded 5299-5237.  

BOARD FINDINGS:  In the matter of the neck condition, the panel recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the back condition, the panel 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 the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Cervical Pain  	5299-5237	10%	
Chronic Thoracic Pain  	5299-5237	10%	
COMBINED	20%	

AR20190004118, 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.