RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01979
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070409

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Ammunition Specialist, medically separated for “chronic back pain” and “cervical degenerative disc disease,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  “All the issues I have now are residual effects from the back problems.”  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 - 20070221	VARD - 20070730	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	Lumbar Spine DDD	5242	10%	20060921	
Cervical DDD	5299-5242	10%	Cervical Spine DDD with Disc Bulging	5242	0%		
Remote Left Fibular Fracture	Not Unfitting	Status Post Left Ankle Open Reduction and Internal Fixation	5271	10%		
Fatty Liver		No VA Placement	
Cholelithiasis		Abdominal Pain	7399-7379	NSC	20060921	
Idiopathic Urticaria		Hives	7899-7806	NSC		
Cervical Neuritis		No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Back Pain Due To Degenerative Disc Disease (DDD), Status Post L4-5 Laminotomy.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s back pain began in September 2004 after a Special Forces’ qualification course.  Lumbar and thoracic spine X-rays on 23 May 2005 were normal.  Ibuprofen, chiropractic treatment, and physical therapy did not relieve the pain.  Neurological evaluation on 14 September 2005 revealed an asymmetrically diminished right ankle reflex with otherwise normal sensory and motor function, suggestive of possible S1 nerve irritation.  An MRI on 23 September 2005 showed L3-S1 stenosis (narrowing of the spinal cannel).  Right lower extremity electrodiagnostic studies were normal.  The CI underwent a right L4-5 laminectomy on 8 November 2005 with resolution of numbness and tingling in the right posterior leg to ankle, but he continued to have mild low back pain at the 6 weeks neurosurgery follow-up.  An MRI on 22 June 2006 demonstrated continued L4-S1 stenosis with a herniated nucleus pulposus and a question of postsurgical changes at L5-S1.  On 13 July 2006, the CI reported right leg numbness, which did not improve with physical therapy.  

During the 6 September 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported three herniated discs, constant lower back pain, arthritis of the lower back, and numbness and tingling of the right leg from the buttocks to the calf.  Physical examination revealed a well-healed scar, tender paraspinal muscles, a decreased range of motion (ROM), and tenderness of the right sacroiliac joint.  

At the 21 September 2006 VA Compensation and Pension (C&P) examination, 7 months before separation, the CI reported constant low back pain which traveled to the right leg.  He reported one incapacitating episode in the prior year that lasted 14 days.  Physical examination showed a normal gait and posture.  There was no evidence of radiating pain on movement, muscle spasm, nor tenderness.  A bilateral straight leg raising test for radiculopathy was negative.  Thoracolumbar spine ROM was flexion to 90 degrees (normal) and combined ROM was 230 degrees (normal 240); painful motion was present.  There were no signs of intervertebral disc syndrome (IVDS) with chronic and permanent nerve root involvement.  Lumbar-spine X-rays showed L5-S1 joint narrowing and spondylosis (degenerative changes), and L4-5 joint narrowing.  Thoracic-spine X-rays were within normal limits.  During a neurologic examination on 22 September 2006 the CI complained of lower back pain and tingling down the right leg.  Physical examination showed mild right lower leg medial aspect sensory changes and a diminished right ankle reflex with normal motor function.  

The 27 September 2006 MEB NARSUM examination, 7 months prior to separation, noted complaints of marked constant low back pain with pain and numbness in both legs and constant marked neck pain (discussed below).  Physical examination showed spine tenderness without spasm.  Right lateral thigh and lower leg sensation was decreased along with loss of right ankle jerk with normal bilateral patellar reflexes.  Thoracolumbar ROM was flexion to 45 degrees and a combined ROM of 120 degrees; pain-limited motion was present.  An MRI on 29 September 2006 demonstrated an L3-4 disk bulge and spondylosis, a possible L4-5 left herniated disk, and an L5-S1 recurrent herniated disk.  A lumbar myelogram showed an L3-4 stenosis and a central disc bulge.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, analogously coded 5299-5242 (degenerative arthritis of the spine), citing thoracolumbar ROM limited by pain with localized tenderness.  The VA also rated the low back condition 10%, coded 5242, based on the C&P examination, citing limited combined ROM.

The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) or combined ROM (not greater than 120 degrees), as recorded on the MEB NARSUM most proximate to separation.  Although the VA examination documented ROM to support a 10% rating, the panel determined that the preponderance of STR evidence, based on other ROM and abnormal spinal diagnostic imaging, most approximated the 20% rating.  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 20% for the back condition, coded 5299-5242.  

Cervical DDD.  According to the STR and MEB NARSUM, the CI’s neck condition also began in September 2004 after participating in the aforementioned Special Forces’ qualification course.  On 7 March 2005 the CI complained of neck pain.  Cervical spine X-rays on 23 May 2005 were normal.  Chiropractic manipulation and electrostimulation began in May 2005 and continued through July 2005 without relief.  Neurologic examination on 14 September 2005 showed a normal neck appearance without tenderness.  The neck was supple without weakness and flexion did not produce tingling down the spine or arms.  Neck and upper extremity electrodiagnostic studies performed on 14 March 2006 were normal.  A neurology clinic visit on 22 September 2006 showed a normal neck which was supple without weakness.  An MRI of the cervical spine dated 29 September 2006 demonstrated C4-6 disk hydration loss and a C5-6 disk bulge.  

During the MEB examination the CI reported numbness in the arms.  Physical examination revealed right paraspinous muscle tenderness and decreased neck ROM.  At the C&P examination the CI reported constant neck pain with stiffness and popping.  He was treated with electrical stimulation and could function without medication.  The examiner found no evidence of radiating pain with movement and no evidence of muscle spasm, tenderness, or ankylosis.  Cervical spine flexion was 45 degrees (normal) and combined ROM was 340 degrees (normal).  ROM was not additionally limited by repetitive use.  Cervical spine X-rays were within normal limits.  

The MEB NARSUM examination noted complaints of constant marked neck pain.  Physical examination showed tenderness over the nuchal ridge and paracervical muscles.  The upper extremities neurologic examination was normal.  Neck ROM was flexion to 45 degrees and combined ROM was 330 degrees; pain-limited motion was present.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, analogously coded 5299-5242, citing pain-limited motion and tenderness.  The VA rated the neck condition 0%, also coded 5242, based on the C&P examination, citing painful or limited motion for a major joint.  

Although there was insufficient limitation of motion to support a 10% rating, the panel agreed a 10% rating was justified for the presence of painful motion or tenderness.  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.  After due deliberation, considering all 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 neck condition.  

Contended PEB Conditions:  Remote Left Fibular Fracture, Fatty Liver Degeneration, Cholelithiasis, Idiopathic Urticaria, and Cervical Neuritis.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The remote left fibular fracture, idiopathic urticaria, and cervical neuritis were not profiled, but the fatty degeneration of the liver and cholelithiasis were given P2 profiles (medical condition or physical defect that may require some activity limitations).  None of the conditions were implicated in the commander’s statement or judged to fail retention standards.  The panel determined there was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a.  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 contended remote left fibular fracture, fatty liver degeneration, cholelithiasis, idiopathic urticaria, and cervical neuritis 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; 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	
Chronic Back Pain	5299-5242	20%	
Cervical Degenerative Disc Disease	5299-5242	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170325, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008656, 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