RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05520
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20071121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Military Police, medically separated for “compression fracture T11-12 coupled with T7-8 and L1-2 disc herniation” and “cervical degenerative disc disease,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  Review requested of the back condition, hearing loss, and headaches, as well as additional conditions not identified by the Medical Evaluation Board (MEB) and/or 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 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 – 20070924	VARD – 20080421	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Compression Fracture T11-12 and T7-8 and L1-2 Disc Herniation	5235	10%	Herniated Intervertebral Disc T7-8 and L1-2 with Spondylosis at T11-12, L1-5 and S1 and Compression Fracture at T11-12	5235-5242	10%	20080112	
Cervical Degenerative Disc Disease (DDD)	5299-5242	0%	DDD C3-4 and 5-6	5242	10%	20080112	
Mixed Conductive and Sensorineural Hearing Loss	Not Unfitting	Hearing Loss Left Ear	6100	0%	20080201	
		Hearing Loss Right Ear	6100	NSC		
Headache	Not Unfitting 	Migraine Headaches	8100	0%	2008012	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Back Compression Fracture and Disc Herniations.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI recalled no specific injury to his back other than when he fell backwards in a chair in 2002.  Then in 2004, he experienced back pain that continued to gradually worsen.  An MRI on 14 July 2005 showed a broad based disc protrusion at T11-12 and chronic appearing wedging to the T12 vertebral body from an old compression fracture.  An MRI on 1 June 2007 showed anterior wedging at T12 with the original vertebral height reduced by 75%.  There was a small disc bulge at T11-12 that slightly narrowed the spinal canal and flattened the ventral surface of the cord.  At T7-8, there was a very small posterior right paramedian disc extrusion with no spinal canal or foraminal narrowing, or cord deformation.  The 13 July 2007 MEB physical therapy (PT) range of motion (ROM) study, 4 months prior to separation, showed thoracolumbar flexion of 80 degrees (normal 90) and combined ROM of 225 degrees (normal 240) after repetition, with pain during flexion and extension.  Both an inclinometer and goniometer were used.  Abnormal spinal contour, abnormal gait, guarding, muscle spasm and tenderness were all absent.  During the 12 September 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months before separation, the CI reported chronic back problems to include stiffness.  Physical examination revealed mild lumbar spine tenderness and pain at limits of motion.  The MEB NARSUM examination, on the same day, noted complaints of constant but tolerable back pain.  Physical findings showed mild tenderness with no spasm or guarding, and normal heel, toe and tandem walking.  Measured ROM was grossly normal with pain at the limits of motion.  At the 12 January 2008 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported nagging back pain on a daily basis with occasional flare-ups, but denied any incapacitating episodes.  Physical examination showed a normal gait with compensatory lumbar muscle spasms.  Thoracolumbar flexion was to 90 degrees and combined ROM was 240 degrees, after repetition and without pain.  However, the examiner noted the CI had difficulty moving from a flexed position to an extended position because of pain.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5235 (vertebral fracture or dislocation), citing forward flexion of 82 degrees and combined ROM greater than 235 degrees, with no spasm or guarding.  The VA also rated the back condition 10%, but analogously coded 5235-5242 (vertebral fracture-degenerative arthritis of the spine), based on the C&P examination, citing full but painful thoracolumbar ROM.  Although there was no compensable limitation of motion, panel members
agreed that a 10% rating was justified for the presence of painful motion and tenderness as reported on the MEB NARSUM and VA examinations closest to separation.    Although there was muscle spasm noted on the C&P examination, it was not 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 (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 back condition.  

Cervical DDD.  According to the STR and MEB NARSUM, the CI first experienced neck pain in 2002 when a chair collapsed under him.  The pain resolved with PT, but recurred in 2004, and MRI studies in June 2007 revealed very small disc bulges at C3-4 and C5-6.  There was no significant spinal canal or foraminal narrowing or cord deformation, and surgery was not recommended.  The MEB PT cervical spine ROM evaluation showed flexion to 50 degrees (normal 45) and a combined ROM of 320 degrees (normal 340), after repetition, and with pain during left lateral flexion and left lateral rotation (measured with inclinometer and goniometer).  Abnormal spinal contour, abnormal gait, guarding, muscle spasm and tenderness were all absent.  During the MEB examination, the CI reported a stiff neck and the examiner noted pain at limits of motion but otherwise unremarkable physical findings.  The MEB NARSUM noted complaints of chronic neck pain, but physical examination showed no tenderness, spasms or guarding.  Measured ROM was grossly normal with end range pain.  At the VA C&P examination, the CI reported pain with flare-ups every few days, but denied any incapacitation.  Physical examination showed a normal gait with neck tenderness and “some loss of cervical lordosis.”  Goniometrically measured flexion was to 45 degrees with a combined ROM of 340 degrees, and no increase in pain or decrease in motion with repetition.  The CI stated he was not having a flare and that the ROM movements did not bother him.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the cervical spine condition 0%, analogously coded 5299-5242, citing a normal gait, and no spasm, tenderness or guarding.  The VA rated the cervical spine condition 10%, coded 5242, based on the C&P examination, citing pain on movement.  Although there was no compensable limitation of motion, panel members agreed that a 10% rating was justified for the presence of painful motion and tenderness as reported on the MEB NARSUM and VA examinations closest 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 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 cervical spine condition, coded 5299-5242.  

Contended PEB Conditions:  Hearing Loss and Headache.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  Headaches did not fail retention standards and therefore were not profiled.  There was no performance-based evidence from the record that either 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 determinations for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the cervical spine condition, the panel recommends a disability rating of 10%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the contended headaches and hearing loss 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, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Compression Fracture T11-12…	5235	10%	
Cervical Degenerative Disc Disease	5299-5242	10%	
COMBINED	20%	

The following documentary evidence was considered:

AR20200004261

Dear XXXXXXXXXXXXXXXXXXXXXXXXXX:

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.