RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02123
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060125

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard, E5, Motor Transport Operator, medically separated for “chronic neck/upper back pain, without neurologic abnormality” with a disability rating of 10%.  

CI CONTENTION:  No specific contention was made.  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 - 20051219	VARD - 20060918	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck/Upper Back Pain, without Neurologic Abnormality	5299-5237	10%	
Cervical/Subscapular Strain
	5237	10%	20060328	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60% 	

ANALYSIS SUMMARY:  

Chronic Neck/Upper Back Pain, without Neurologic Abnormality.  The PEB combined the neck and upper back pain conditions under a single disability rating, coded 5299-5237 and rated 10%.  This 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.  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 upper back pain condition is presented together for clerical brevity, 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 condition began in May 2005 when he awoke from sleep with pain in his neck.  The CI had been on guard duty and fell asleep, when he awoke his “head was stuck to his right side.”  He was treated for “obvious muscle spasm of the right trapezius” (trapezius is a large triangular muscle that originates on the occiput and spinous processes from T1-T12 and inserts on the lateral clavicle, acromion, and the scapular spine of the scapula).  The CI was seen in the emergency room on 13 May 2005 with complaints of right shoulder pain, neck pain and stiffness one day after lifting weights.  He was diagnosed with neck strain and treated with anti-inflammatory medications, muscle relaxants and physical therapy.  At visits over the next week he reported neck pain that progressed to include the right shoulder.  At an orthopedic examination on 20 June 2005 the CI reported neck pain.  Physical examination showed tenderness of the right mid-back.  

Cervical spine X-rays performed on 6 September 2005 showed normal alignment.  There was normal disk space preservation at all levels and no significant degenerative changes or evidence of fracture, dislocation, or subluxation.  Thoracic X-rays were normal.  Cervical spine MRI performed on 4 October 2005 showed normal cervical lordosis.  There was minimal degenerative disc disease with a subtle posterior disc bulge at C5-6, without significant vertebral canal or neuroforaminal compromise at any disc level.  The 18 October 2005 commander’s statement indicated the CI was unable to perform the duties of his military specialty due to his medical condition.  Cervical range of motion (ROM) measurements performed by occupational therapy (OT) for the MEB and recorded on 24 October 2005, 3 months prior to separation, showed flexion 45 degrees (normal) and combined ROM of 270 degrees (normal 340).  The therapist noted decreased ROM due to pain.  The next day a U3L1 permanent profile listed neck and upper back pain and at a neurosurgical consult the following day the CI reported constant neck and shoulder pain and the examiner suspected musculoskeletal pain.  Following the imaging results, notes in the STR indicate the CI was treated by a chiropractor for lumbago and non-allopathic lesions of the thoracic spine.  Chiropractic notes from 29 November 2005 to 15 December 2005 noted physical examination findings of right upper back tenderness with a muscular trigger point and low back tenderness.  

The 1 November 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of worsened neck and upper back pain.  Physical examination showed no significant cervical or thoracic spine focal tenderness and no limitation by weakness or lack of endurance during repetitive motion.  Gait and tone of the upper and lower extremities was within normal limits.  Strength and sensation were normal throughout and reflexes were symmetrical, without abnormal reflexes.  The CI was determined to fall below retention standards due to the neck and upper back pain.  

At the 28 March 2006 VA Compensation and Pension (C&P) spine examination, 2 months after separation, the CI reported he awoke with pain in his subscapular area in May 2005 and it had been getting worse since.  He reported the pain made his neck and back stiff, with flare-ups due to sleeping position or moving wrong.  Physical examination noted a stiff posture and gait.  There were normal spinal curvatures with normal symmetry and rhythm of spinal motion.  Cervical ROM was 40 degrees flexion and combined ROM of 245 degrees with pain reported in all ranges.  There was no additional loss of ROM with repetition.  

The 13 July 2006 PT clinic appointment, 6 months after separation, noted complaints of intermittent throbbing and tightening of the neck described as muscle cramping that went from the low back to the neck approximately once per week.  He took muscle relaxers for the flare-ups.  On physical examination cervical ROM was flexion of 30 degrees with pain and combined ROM of 205 degrees.  The examiner noted upper trapezii muscle spasms and limited trunk and neck movements due to muscle guarding.  Thoracic X-rays were normal.  Cervical spine X-rays showed cervical straightening and were otherwise normal.  

A 2 August 2006 VA note, 6 months after separation, indicated the CI telephoned indicating he had been called back to Guard duty and he requested written restrictions to prevent his neck muscle spasms from recurring, including not wearing a helmet.  An outpatient orthopedic examination on 11 January 2007, 12 months after separation, noted the CI was in not in perpetual discomfort but reported his neck and back acted up occasionally.  Physical examination showed full painless ROM of the cervical spine and no obvious back deformity.  

The panel first considered if neck and upper back conditions, having been de-coupled from the combined PEB adjudication, each remained separately unfitting as established above.  The U3L1 profile listed neck and upper back pain.  The commander’s statement did not implicate any specific medical condition(s) and the MEB NARSUM determined the CI fell below retention standards due to the neck and upper back pain.  Notes in the STR noted complaints of neck and upper back pain due to muscle spasms which began with an awkward neck posture during sleep and examinations noted spasm of muscles that spanned from the neck to the upper back.  The panel concluded the neck was unfitting but there was not a preponderance of evidence in the record to support the upper back as a separately unfitting condition apart from the neck condition.  The panel then considered its rating recommendation for the unfitting neck condition at the time of separation.  

The PEB rated the neck and upper back pain without neurologic abnormality 10%, analogously coded 5299-5237 (cervical strain).  The VA rated cervical/subscapular strain (claimed as chronic neck/upper back pain without neurologic abnormality) 10%, coded 5237, based on the C&P examination, citing an “evaluation of 10 percent is granted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined ROM of the cervical spine greater than 170 degrees but not greater than 335 degrees.”  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 40 degrees) and combined ROM (greater than 170 degrees but not greater than 335 degrees), as reported on the OT MEB and VA examinations proximate to separation.  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 intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After unbundling the neck and upper back condition the panel recommends the same combined rating as that of the PEB, which provides no ratings benefit to the CI.  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.  

BOARD FINDINGS:  In the matter of the neck and upper back pain without neurologic abnormality 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.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170305, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190007582, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
Enclosure