RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX CASE: PD1200428 BRANCH OF SERVICE: ARMY BOARD DATE: 20130426 SEPARATION DATE: 20041030 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized Reserve SSG/E-6 (92A/Supply Specialist) medically separated for low back pain (LBP) and chronic neck pain with tension headaches. He had chronic low back and neck pain over a 19 month period beginning in March 2003 with one injury to his neck due to blunt trauma in July 2003. His chronic low back and neck pain was treated non-operatively with one epidural steroid injection (ESI) to his lumbar spine. His low back and neck pain conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent profile and referred for a Medical Evaluation Board (MEB). The low back and neck conditions, characterized as “low back pain, slight/intermittent, muscle strain” and “neck pain, slight, occasional, secondary to muscle spasm,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded two other conditions, as identified in the rating comparison chart below, for PEB adjudication. The Informal PEB (IPEB) adjudicated the LBP and chronic neck pain with tension headaches (subsuming the headache condition within the neck condition) as unfitting and rated each condition at 10% (20% combined rating), with likely application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining condition was determined to be not unfitting. The CI made no appeal, was released from active duty and transferred to the Retired Reserve List awaiting pay at age 60, pursuant to his request. CI CONTENTION: The application states simply, “Not all Conditions Developed and Aggravate By the Service While Activated for Mobilization Enduring Freedom were Considered During the MEB and PEB Proceedings.” The CI does not elaborate further or specify a request for Board consideration of any additional conditions. SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The ratings for the unfitting LBP and chronic neck pain w/tension headache conditions are addressed below. The mild gastritis and esophagitis with esophageal ulcer condition, identified by the MEB and adjudicated as not unfitting by the PEB, as requested by the CI will be reviewed below. The other requested conditions (conditions developed/aggravated while mobilized and not listed by the MEB or PEB) are not within the DoDI 6040.44 defined purview of the Board. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records (ABCMR). RATING COMPARISON: Service IPEB – Dated 20040525 VA – 3 Mos. Post-Separation Condition Code Rating Condition Code Rating Exam Low Back Pain 5299-5237 10% Lumbosacral Disc Disease L4-5 5299-5242 10% 20050126 Chronic Neck Pain w/ Tension Headache 5299-5237 10% Cervical spondylosis 5299-5237 10% 20050126 Tension Headache - Muscle Spasm 8199-8100 10% 20050126 Mild gastritis/Esophagitis Not Unfitting NO VA ENTRY No Additional MEB/PEB Entries Other x2 20050126 Combined: 20% Combined: 30% Derived from VA Rating Decision (VARD) dated 20050302 (most proximate to date of separation [DOS]) ANALYSIS SUMMARY: The Board acknowledges the CI’s assertions that his disability disposition did not address all conditions he believed developed and were aggravate by the Service. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the ABCMR and/or the United States judiciary system. Low Back Pain Condition. The service treatment records (STRs) in evidence document that the CI was taking non-steroidal anti-inflammatory drugs (NSAIDS) once weekly for his LBP in February 2003. There was no documentation of an injury to his low back, he continued to take NSAIDS and was treated regularly by physical therapy (PT) for myofascial pain and intermittent lumbar muscle spasm. In October 2003, he had magnetic resonance imaging (MRI) that revealed a normal thoracic spine and “small focal disc protrusions at L4-L5 of the lumbar spine.” In January 2004, he had a single ESI with some initial improvement however; his pain recurred within 2 months. There were no documented complaints of radicular symptoms or incapacitating episodes. The narrative summary (NARSUM) prepared 6 months prior to separation documented: “…he was evaluated by a Physical Medicine doctor from the Army Reserve who could not find any objective findings on physical examination to explain the symptoms. Because of persistence of symptoms, he was then referred to a Pain Control Clinic where he received injections to trigger points, epidural blocks, and acupuncture. Despite this treatment he continued to complain of persistent pain and in February 2004, on reevaluation at the Pain Control Clinic the assessment was that at that time he had reached maximum benefits from palliative treatment.” At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported that he “rarely” had low back pain prior to active military service. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below. Thoracolumbar ROM NARSUM 6 Mos. Pre-Sep VA C&P 3 Mos. Post-Sep Flexion (90° Normal) 75° 90° Combined (240°) 200° 240° Comment Normal gait, strength, sensation and reflexes bilat. legs; Slight tenderness to palpation bilat. lumbar paravertebral area; Neg. straight leg raise bilaterally; ROM limited by stiffness & poor effort; Waddell's signs pos. for axial loading & rotation Normal posture; No kyphosis, lordosis or scoliosis; Pos. waist corset use; Positive painful motion; No tenderness in lumbar area; Pos. mild muscle spasm at L2 to L5 §4.71a Rating 10% 10%* * IAW VASRD §4.59, Painful Motion The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and VA rated the CI’s low back condition as 10% disabling. While the PEB applied the analogous VASRD code 5299-5237, lumbosacral strain, and the VA applied VASRD code 5299- 5242, degenerative arthritis of the spine, both coding options utilize the same rating guideline, the general rating formula for diseases and injuries of the spine. The PEB’s rating was reflective of the documented NARSUM ROM measurements that were compensable at the 10% level, while the 10% rating granted by the VA was supported by their application of VASRD principle §4.59 (Painful Motion), as the ROM measurements documented in the C&P exam were non- compensable. There was no evidence of incapacitating episodes (bed rest and treatment prescribed by a physician) or functionally limiting radiculopathy for separate peripheral nerve rating that would be necessary for higher or additional rating options. All data present for review supports a 10% disability rating for the CI’s LBP. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic LBP condition. Chronic Neck Pain with Tension Headache Condition. The PEB combined chronic neck pain and tension headache as a single unfitting condition, coded analogously to 5237, cervical strain, and rated 10%. The PEB may have relied on AR 635.40 (B.24 f.) for not applying separately compensable VASRD codes. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a and §4.124a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. The Board first considered if neck pain, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above. The CI’s chronic neck pain was the cause for at least 39 medical encounters over the 18-month period prior to separation. There was an injury to his cervical spine and MRI revealed cervical spasm. The STRs document the CI was missing too much duty time attending PT sessions for his neck pain. Although the CI’s commander’s statement does not specifically implicate neck pain, members agree that neck pain, as an isolated condition, would have rendered the CI incapable of continued service within his MOS, and accordingly merits a separate service rating. Next, the Board considered whether tension headache remains separately unfitting, having de-coupled it from a combined PEB adjudication. In analyzing the intrinsic impairment for appropriately coding and rating the tension headache condition, the Board is left with a questionable basis for arguing that it was indeed independently unfitting. There are only two episodes of headache documented in the STR which was mentioned only in conjunction with visits for neck pain. The headache condition was not implicated by the commander’s statement and was only profiled in preparation for the MEB. There was no indication that the CI’s headache independently caused any functional limitation or missed duty time. After due deliberation, members agreed that evidence does not support a conclusion that tension headache, as an isolated condition, would have rendered the CI incapable of continued service within his MOS, and accordingly cannot recommend a separate rating for it. The CI’s chronic neck pain condition began in March 2003 and continued unabated to the date of separation. He suffered a contusion (bruise) to his cervical spine in July 2003 when a “heavy metal plate” struck him in the posterior neck. His neck pain persisted despite continued treatment by PT and trigger point injections. Radiographic imaging in October 2003 revealed cervical spasm but no disc herniation. He did not complaint of any radicular symptoms or had any periods of incapacitation. The NARSUM noted that the CI had LBP, complicated by neck pain that was further exacerbated by blunt trauma to his posterior neck while he was working during the mobilization of his unit. At the C&P exam performed 3 months after separation, the CI reported a similar history to the one summarized above. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below. Cervical ROM MEB 6 Mo. Pre-Sep VA C&P ~3 Mo. Post-Sep Flex (45° Normal) 35° 45° COMBINED (340°) 275° 340° Comment All ROM limited by stiffness & poor effort; Normal strength bilateral upper extremities Pos. discomfort at bilateral rotation & lateral flexion, more marked to the right; cervical spasm is detected bilaterally, extending from shoulder area to back of the neck; Pos. mild tenderness to palpation; No scoliosis, kyphosis, lordosis or contracture; No lack of endurance or fatigue with repetitive movement §4.71a Rating 10% 10%* * IAW VASRD §4.59, Painful Motion The Board directs attention to its rating recommendation based on the above evidence. The PEB combined chronic neck pain with tension headaches, applied the analogous VASRD code of 5299-5237 (cervical strain) and rated it 10% disabling. As discussed earlier, the chronic neck condition was found separately unfitting and will be recommended for a disability rating. The VA also applied VASRD code 5237 and rated it 10% based on painful motion as the ROM measurements documented on the C&P exam were non-compensable. Properly coding the CI’s chronic neck pain is best achieved by applying VASRD code 5237 as evidenced by the PEB’s and VA’s utilization of that code. The general rating formula for diseases and injuries of the spine, which uses ROM measurements to assign disability levels, is used for rating 5237 IAW §4.71a. Both exams contain goniometric measurements, were complete for rating purposes and were within 6 months of separation. The ROM measurements documented by the MEB exam are consistent with a 10% disability rating, while those documented by the C&P exam were non- compensable. Application of an acceptable alternate coding and rating method to the C&P exam, utilizing VASRD code 5003 (degenerative arthritis), would also result in a 10% rating due to painful motion IAW VASRD §4.59. There was no evidence of incapacitating episodes (bed rest and treatment prescribed by a physician) or functionally limiting radiculopathy for separate peripheral nerve rating that would be necessary for higher or additional rating options. All data present for review supports a 10% disability rating for the CI’s chronic neck pain. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic neck pain condition. Contended PEB Condition. The Board’s main charge is to assess the fairness of the PEB’s determination that mild gastritis and esophagitis with esophageal ulcer condition was not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The mild gastritis and esophagitis with esophageal ulcer condition was not profiled or implicated in the commander’s statement and were not judged to fail retention standards. It was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition. As discussed above, probable PEB reliance on AR 635.40 for rating chronic neck pain w/tension headache was operant in this case and the condition was adjudicated independently of that regulation by the Board. In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a. In the matter of the tension headache condition, the Board unanimously recommends that it was not unfitting and therefore cannot recommend it for additional disability rating. In the matter of the contended mild gastritis and esophagitis with esophageal ulcer condition, the Board unanimously recommends no change from the PEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Lumbosacral Strain 5299-5237 10% Cervical Strain 5237 10% Tension Headache NOT UNFITTING COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120504, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxx, DAF Director of Operations Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxx, AR20130011058 (PD201200428) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability description without modification of the combined rating or recharacterization of the individual’s separation. This decision is final. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)