RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX  	CASE:  PD-2018-00305
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030725

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Motor Transport Operator, medically separated for “chronic low back pain (LBP) secondary to degenerative disc disease [DDD]” with a disability rating of 10%. 

CI CONTENTION:  Per submitted legal brief, the CI contended a higher rating for his unfitting low back condition.  He also contended for service rating of bipolar disorder, not identified by the Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB), in addition to migraine headache and cervical spine conditions which were determined to be not unfitting.  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 - 20030416	VARD - 20030825	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain Secondary to DDD	5293-5299-5295	10%	Chronic LBP Secondary to DDD	5003-5292	10%	20030109	
Cervical Spine Pain	Not Unfitting	Cervical Spondylosis	5003-5290	10%		
HNP at C3-C4	Not Unfitting					
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Back Pain Secondary to DDD.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered an atraumatic onset of LBP at least 5 years before separation.  Imaging (X-rays and MRI) was normal except for a “tiny” disc protrusion at L4/5 without neural compromise.  Multiple neurological examinations were normal and surgery was not recommended.  Provider entries in the STR documented grossly normal thoracolumbar range of motion (ROM) except as noted below.  There was STR documentation of a normal gait and normal spinal contour, and no documentation of incapacitating episodes (no captured work loss or quarters assignments).  
A 9 January 2003 VA Compensation and Pension (C&P) general examination, 6 months before separation, documented “constant discomfort particularly when standing or sitting for prolonged periods” without radicular symptoms.  The physical examination recorded a normal gait and spinal contour, tenderness, no spasm and normal neurological findings.  Thoracolumbar ROM measurements were normal in all planes (flexion 90 degrees or greater and combined ROM 240 degrees or more), specifying painful motion but no degradation with repetition.   

The 2 April 2003 MEB NARSUM examination, 4 months prior to separation, documented constant LBP which prohibited running, prolonged sitting, loadbearing, and heavy lifting.  The physical examination recorded a normal gait without note of abnormal spinal contour, no note of tenderness, no spasm, and normal neurological findings.  The NARSUM noted lumbar flexion to 30 degrees and extension to 10 degrees, without further elaboration.  Of probative note, the subjective complaints and physical findings (specifically the ROM description) appeared to have been imported verbatim from an STR entry by the same provider on 7 October 2002 (6 months earlier, prior to the C&P ROM measurements).  A 5 May 2003 addendum to the NARSUM documented “moderately limited” ROM in all planes without providing measurements.  Pain was rated “moderate [and] frequent,” and gait and neurological findings remained normal.  

A C&P spine examination was performed on 30 June 2004, 11 months after separation.  At this time the CI complained of daily LBP and stated that he had to use a cane to walk, although his gait could not be assessed because of recent knee surgery.  The physical examination recorded no tenderness and no spasm.  Thoracolumbar ROM measurements were flexion to 80 degrees and were normal in all other planes, although a measurement of extension was omitted. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the lumbar spine condition 10%, coded 5293-5299-5295 (intervertebral disc syndrome rated analogously to lumbosacral strain), citing the applicable criterion “characteristic pain on motion” for a 10% rating under criteria of code 5295.  The VA also rated the condition 10%, coded 5003-5292 (degenerative arthritis rated for limitation of motion), based on the pre-separation C&P examination and citing the applicable criterion of “slight” limitation of motion for a 10% rating under criteria of code 5292.  The VA continued a 10% rating based on the post-separation C&P examination, and under new VASRD spine criteria as noted below.

The 2003 VASRD coding and rating standards for the spine, which must be applied to the panel’s recommendation IAW DoDI 6040.44, differed significantly from the current VASRD §4.71a general rating formula for the spine.  The next higher 20% rating under the PEB code 5295 in effect required “muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing' position.”  Panel members agreed that those criteria were not supported by the evidence.  Higher ratings under the VA code 5292 in effect were 20% for “moderate” limitation of motion (contrary to the assertion in the legal brief that this was a 40% criterion) and 40% for “severe” limitation.  Other than codes 5295 or 5292, the only code available in the VASRD in effect that might be considered was code 5293 (intervertebral disc syndrome).  Panel members agreed, however, that the latter was neither clinically applicable nor favorable given the lack of STR evidence for “recurring attacks” as requisite for a rating higher than 10% under criteria of code 5293.    

The panel was left to deliberate whether a rating higher than 10% could be justified under code 5292 as elaborated above.  Members agreed that the evidence did not support a conclusion that the ROM limitation could be characterized as severe (40%), but considered whether it was more fairly characterized as moderate (20%) or slight (10%).  Panel members ultimately agreed that the preponderance of ROM evidence was better aligned with the slight criterion than with the moderate one.  Although the NARSUM (likely presenting outdated findings) and subsequent addendum reflected more significant ROM limitation, the remaining STR evidence corroborated the objective measurements from the pre-separation and post-separation VA examinations that demonstrated normal or near normal ROM excursions.  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 lumbar spine condition.

Contended PEB Condition:  Cervical Spine Pain/Herniated Nucleus Pulposus (HNP) at C3-C4.    The CI suffered an atraumatic onset of neck pain in 2001.  An MRI of 5 September 2002 demonstrated a protruding disc (i.e., HNP) at C3/4 without nerve root compromise (some focal cord impingement); but, there was no clinically significant radiculopathy and surgery was not indicated.  Provider notes in the STR documented neck pain in addition to the back pain, with some nonspecific cervical ROM limitation and painful motion, but there was no evidence for significantly severe ROM limitation or note of specific functional impairment.  The MEB was initiated for the lumbar condition only.  

The NARSUM was directed at the lumbar condition, but documented the cervical condition, and the C3/4 HNP was listed on the MEB’s DA Form 3947 as failing retention standards (this does not equate to unfitting).  The cervical condition was never profiled (U1).  The commander’s performance statement did not specify the unfitting condition(s), but did not elaborate any functional limitations that could not be attributable exclusively to back pain.  The pre-separation C&P examiner noted that the neck pain was worsened with use of a Kevlar helmet, but this was not corroborated by service evidence (including profile limitations).   

The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The panel recognizes that determination of fitness is a strong prerogative of the PEB; and, DoDI 1332.38 (E3.P3.6.2) in effect at separation specifies that such determinations are based on a preponderance of evidence. There was not adequate performance-based evidence from the record that the cervical spine 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 condition; thus, no additional disability rating is recommended.

Contended PEB Condition:  Migraine Headaches.  There was a single provider entry in the STR from 9 July 2003 that documented a 9-week history of headaches unresponsive to over-the-counter medication.  There was no STR evidence for follow-up or emergent treatment of headaches.  The NARSUM documented “a history of migraine headaches that is currently inactive.”  The condition was judged to meet retention standards, was not profiled, and was not implicated in the commander’s statement.  As elaborated above for the cervical condition, there was no performance-based evidence that this 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 migraine headache condition and does not recommend additional disability rating for it.

BOARD FINDINGS:  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.   In the matter of the contended cervical spine pain/herniated nucleus pulposus at C3-C4 and migraine headache 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.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.     

AR20200005662 

Dear XXXXXXXXXXXXXXXXXXXXX:

	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.