RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXX	CASE: PD-2017-02425
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20051120

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve O-1, Surgical Nurse, medically separated for “chronic pain, due to C5-7 herniated nucleus pulposus…” with a disability rating of 10%. “Chronic back pain” was determined to have existed prior to service (EPTS) and was not rated.

CI CONTENTION: The CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB). 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, 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 - 20050811	VARD - 20060817	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain due to C5-7 HNP…	5243	10%	Cervical HNP	5243	10%	
20051108	
Chronic Back Pain…	5299-5237	EPTS	Thoracic HNP…*	5243	0%		
Mild Obstructive Ventilatory Defect	Not Unfitting	Asthma…	6602	30%		
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 60%	
* Increased to 10% effective 20051121 by Supplemental Statement of the Case dated 20071010

ANALYSIS SUMMARY:

Chronic Pain due to C5-7 Herniated Nuclei Pulposi (HNPs). According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s chronic pain, due to C5-7 herniated nucleus pulposus (HNP) began in March 2005 with no precipitating injury or trauma identified. On 7 March 2005 she was seen in the chiropractic clinic where she reported awakening a day earlier with neck pain and again awakened on the day of the visit with increased neck pain  and

antalgic spasm (torticollis). Acupuncture treatments did not resolve the spasm. She then received an injection of Toradol (a nonsteroidal anti-inflammatory drug). Radiographic studies performed in March 2005 showed degenerative changes of the cervical spine. An MRI of the cervical spine on 22 March 2005 showed disk degenerative changes at C5-C6 and C6-C7 with posterolateral disk protrusion to the left at C5-6 and to the right at C6-7 with slight impingement upon the spinal cord and nerve roots at both levels. Minimal posterior osteophytes were found at C4-C5 without impingement.

The 7 April 2005 MEB NARSUM examination, 7 months prior to separation, noted complaints of continued cervical spine pain. Physical examination showed a normal gait and no muscle spasm in the cervical spine. She had slight idiopathic scoliosis (see below), but no imbalance of her shoulder or pelvis. At the physical therapy (PT) appointment a week later, the examiner recorded range of motion (ROM) as flexion to 35 degrees (normal 45) and combined ROM of 265 degrees (normal 340). It was not clear whether ROM was limited or not limited by pain. During the 20 April 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), physical examination revealed full ROM, with tenderness and painful motion of the cervical spine noted by the examiner.

The 8 November 2005 VA Compensation and Pension (C&P) examination, 2 weeks before separation, noted ongoing neck pain with muscle spasms treated with Percocet (a narcotic/pain reliever combination medication) for acute flare-ups. The CI had ER visits during exacerbations. Physical examination showed a full ROM (flexion to 45 degrees and combined ROM of 340 degrees) with discomfort and painful motion throughout without spasm, weakness, or acute tenderness.

The panel directed attention to its rating recommendation based on the above evidence. The PEB and VA rated the cervical spine at 10%, coded 5243 (intervertebral disc syndrome [IVDS]). The PEB cited “cervical flexion 35 degrees.” The VA based the rating on the C&P examination, citing painful motion. 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), as reported at the PT examination. The presence of tenderness and painful motion at the MEB examination also supported this rating. There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition. 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 chronic pain, due to C5-7 HNPs.

Chronic Back Pain. According to the STR and MEB NARSUM, the CI’s back pain began as early as June 2000 and was associated with a pregnancy. A chest X-ray dated 19 October 2000 demonstrated dextroscoliosis (curvature of the spine to the right) of the thoracic spine. The CI reenlisted with a waiver for scoliosis (an abnormal lateral curvature of the spine) in February 2001. At a clinic visit dated 12 February 2004, the CI reported back pain occurred 4 weeks earlier. The examiner noted the CI’s left leg was approximately one inch shorter than the right leg, and attributed the back pain to leg length discrepancy. Heel lifts were ordered. While she was an Army student the CI had a back contusion secondary to a fall off an ATV (all-terrain vehicle). She received treatment in the emergency room (ER) with a muscle relaxer and pain medication on 10 April 2004. She was then placed on quarters. X-rays of the lumbar spine, pelvis, and hips were normal. A scoliosis survey that month showed 24.3 degrees of right rotoscoliosis from T7 and T12 and 18 degrees of left rotoscoliosis between L1 and L5. X-rays dated 28 February 2005 showed mild levoscoliosis (curvature to the left).

The 7 April 2005 MEB NARSUM examination, 7 months prior to separation, noted complaints of ongoing back pain. Physical examination showed a normal gait, no muscle spasm in the back, and slight idiopathic scoliosis with no imbalance of her shoulders or pelvis. At a PT appointment

a week later the examiner recorded ROM measurements for flexion to 90 degrees (normal) and combined ROM of 230 degrees (normal 240). Painful motion was noted by the examiner. A 20 April 2005 MRI of the lumbar spine was normal and physical examination during the MEB examination that day revealed tenderness of the back, with “limitation of movement with flexion and extension secondary to pain.” Gait was normal. The commander’s statement dated 21 April 2005 indicated the CI had to limit some of her nursing duties, and she was unable to fulfill professional training.  As a result her shifts were modified.

During the 8 November 2005 C&P examination, 2 weeks before separation, the CI reported ongoing back pain treated with Percocet and ER visits during exacerbations. Physical examination of the thoracolumbar spine showed no tenderness or muscle spasm. ROM was full without limitations or pain.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the chronic back pain, due to scoliosis, with DDD as EPTS, analogously coded 5237 (lumbosacral strain), citing scoliosis existed prior to enlistment and was not permanently aggravated beyond the natural progression by such service. The VA rated the back 0% coded 5243 (IVDS), based on the C&P examination.

The PEB determined the chronic back pain condition was EPTS based on findings of scoliosis in 2000 prior to entering active duty military service on 13 September 2004. The panel found no evidence to indicate this was incorrect. 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 the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service. The CI had a contusion of the back after a fall off an ATV while she was an Army student. Although she had scoliosis, an MRI of the thoracic spine revealed some anterior disk degenerative changes at T9-T10, T10-T11, and T11-T12 with a minimal bulge at T11-T12 and slight bulges at T3-T4 and T4-T5, as well as minimal upper thoracic scoliosis. The NARSUM described the idiopathic scoliosis as slight, and an MRI noted minimal upper thoracic scoliosis. The CI served as an enlisted medic and then as a nurse officer. She did have an L3 profile and had to limit some of her nursing duties, but could not deploy or perform many required duties of a soldier. Therefore, while she had scoliosis, she sustained a back contusion that may have been contributory to disc bulges noted on the MRI. The panel determined that the imaging findings exceeded the natural progression of the mild scoliosis and thus the CI’s unfitting condition was service aggravated, which warrants a rating.

Turning to rating criteria, the panel noted there was no limitation of thoracolumbar spine motion to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine and the NARSUM and VA C&P examinations, which were the most proximate prior to separation, did not note the presence of painful motion, muscle spasm, guarding, or localized tenderness. There was no history or evidence of vertebral body fracture with loss of 50% or more of the height, nor was there evidence of additional functional loss that would impact functioning in the average civil occupation. There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition. After due deliberation and considering all the evidence the panel concluded the chronic back pain condition was permanently aggravated by service and recommends a disability rating of 0%, coded 5243. However, the panel recognized that an assigned 0% rating for the service aggravated back condition rating produces no benefit to the CI.  Therefore, the panel recommends no change to the rating recorded by the PEB.

Contended PEB Condition: Mild Obstructive Ventilatory Defect. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The contended  condition  was  profiled  U2, but  was not  explicitly  implicated  in the commander’s

statement, and did not fail retention standards. There was no performance-based evidence from the record that the condition 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 the contended condition, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the chronic pain due to C5-7 herniated nuclei pulposi and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the chronic back pain and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication, albeit the panel determined the condition was service aggravated. In the matter of the contended mild obstructive ventilatory defect condition, the panel recommends no change from the PEB determination as not unfitting. 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 20170227, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

	PD-2017-02425
AR20190012335, XXXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXX

	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

	PD-2017-02425