RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201569 SEPARATION DATE: 20030205 BOARD DATE: 20130307 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-6 (92Y/Unit Supply Specialist), medically separated for chronic pain, due to cervical spondylosis and low back pain (LBP) due to lumbar degenerative joint disease (DJD) which did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). One other condition, mild hearing loss, was also forwarded by the MEB. The Physical Evaluation Board (PEB) adjudicated the chronic pain, due to cervical spondylosis and LBP due to lumbar DJD conditions as unfitting, rated 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy. It determined that the mild hearing loss was not unfitting. The CI made no appeals and was medically separated with a 10% disability rating. CI CONTENTION: The CI elaborated no specific contention in his application. SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions chronic pain due to cervical spondylosis and LBP due to lumbar DJD will be reviewed. The MEB diagnosis of mild hearing loss was determined to be not unfitting by the PEB and was not contended by the CI; it is thus not within the 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. RATING COMPARISON: Service IPEB – Dated 20021203 VA (5 Mos. Pre -Separation) – All Effective Date 20030206 Condition Code Rating Condition Code Rating Exam Chronic Pain, Due to Cervical Spondylosis and LBP due to Lumbar DJD 5099-5003 10% DDD Cervical Spine 5293-5290 *30% 20020925 DDD Lumbar Spine 5293-5292 *40% 20020925 Mild Hearing Loss Not Unfitting NSC 20020925 .No Additional MEB/PEB Entries. DJD, Right Shoulder 5203 10% 20020925 Residuals of Right Knee Injury 5260 10% 20020925 Left Knee Strain 5260 10% 20020925 Tinnitus 6260 10% 20020925 0% X 1 / Not Service-Connected x 2 20020925 Combined: 10% Combined: *70% *Initially both were rated at 10% each. Per VARD dated 20040512 a clear and unmistakable error was made by the VA, the noted changes were made and the overall rating was changed to 70% effective 20030206 ANALYSIS SUMMARY: The PEB combined chronic pain from cervical spine spondylosis and LBP due to lumbar DJD as the single unfitting and solely rated condition, coded analogously to 5099- 5003 and rated 10%. The PEB may have relied on AR 635.40 (B.24 f.) and/or the USAPDA pain policy for not applying separately compensable Veteran’s Affairs Schedule for Rating Disabilities (VASRD) codes. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting and that there was no need for separate fitness adjudications rather than a judgment that each condition was independently unfitting. If the Board judges that each ‘unbundled’ condition was unfitting in and of itself, the Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a. Thus, the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. Cervical Spondylosis. The CI was first seen for neck pain in 1997 after a motor vehicle accident (MVA). In 1998, a bone scan performed to evaluate his LBP showed DJD of the cervical spine. He apparently did well until 2 years prior to separation when he noted the insidious onset of neck pain without recent trauma. On 3 December 2001, a magnetic resonance imaging (MRI), ordered to evaluate bilateral upper extremity (BUE) paresthesias was remarkable for moderate degenerative disc disease (DDD) at C6-7 with a disc protrusion and right foraminal stenosis. He was seen in neurosurgery on 26 March 2002. The CI reported an 18-month history of pain which radiated into both arms and was associated with paresthesias. Conservative management had not been successful and high impact activities aggravated his pain. The neurosurgeon documented that electrodiagnostic studies of BUE had been normal, indicative of no neurological impairment. This report is not in evidence. On examination, the CI had minimal tenderness over the neck. He had normal sensation, strength, reflexes, and full range- of-motion (ROM). There was no mention of spasm of neck muscles. He had a normal gait. Compression of the turned neck, a provocative test for cervical radiculopathy, did not reproduce the symptoms. The neurosurgeon did not recommend surgery. The CI's commander's statement dated 31 July 2002 cites his profile as basis for stating that the CI is non-deployable; this statement does not mention any specific underlying diagnosis. The CI was given several profiles for his neck. The final profile was a permanent U3L3H2 profile on 16 August 2002. At the MEB examination on 28 August 2002 (6 months prior to separation), the narrative summary (NARSUM) documented slight tightness of the neck muscles bilaterally and full ROM was demonstrated. Sensation and strength of upper extremities were normal as was the gait. There was no muscle atrophy. There was no specific comment regarding spasm. At the VA Compensation and Pension (C&P) on 25 September 2002 (5 months prior to separation), the CI complained of neck pain going to his shoulders and that the neck pain is constant. He also stated the neck pain does not require bed rest or the attention of a physician. His ROM was reduced and painful in all planes and the CI declined to rotate his head either to the left or right secondary to pain. There was no reason provided in the record to explain the significant decrease in the ROM in a month. There were no neurological abnormalities, muscle spasm, or radiculopathy. The Board first considered if DDD cervical spine, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above. The Board notes that an MRI revealed moderate DDD. The CI had neck pain for several years with no apparent improvement anticipated. The CI was placed on multiple profiles that specifically noted his cervical disease (along with lumbar disc disease) as one of the conditions for permanent duty restrictions. The commander did not distinguish between the neck and the back in his statement that the CI cannot perform his duties within the limits of his profile. After consideration of above, all members agreed that DDD cervical spine, as an isolated condition, would have rendered the CI incapable of continued service within his MOS; and, accordingly merited a separate rating. The Board directed attention to its rating recommendation based on the above evidence. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board noted that the 2003 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004. The Board discussed the CI's ROM at the neurosurgical examination (10 months prior to separation), the MEB examination (6 months prior to separation), and the C&P exam (5 months prior to separation). In assigning probative value to these somewhat conflicting examinations, the Board notes that two separate prior to separation examinations, the neurosurgical consult and the MEB examination, documented normal ROM of the cervical spine. There is not a reasonable explanation for the significantly more limited ROM in the one month interval between the MEB and VA examinations. Therefore, based on all evidence and associated conclusions just elaborated, the Board is assigning preponderant probative value to the MEB evaluation. The Board considered the various rating options for the neck and noted that DDD was clearly present on the MRI. The neurological examination and the ROM on the two probative examinations were normal. There was neither incapacitation documented nor was there muscle atrophy. The CI did have minimal tenderness at the prior to separation neurological consultation and had slight tightness of the neck muscles at the MEB examination in addition to the positive MRI findings. The Board determined that these findings supported a 10% rating for the neck utilizing an analogous code 5099-5003, degenerative arthritis. The Board could find no route to a higher rating. Thus after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% coded 5099-5003 for the DDD cervical spine condition. Degenerative Disc Disease Lumbar Spine. The CI first was seen for LBP after falling off a vehicle almost 10 years prior to separation. He was treated with medications and physical therapy with resolution over the next year. In 1997, the CI was in a MVA with recurrent pain. X-rays showed mild DJD at L4. He was treated with medications, physical therapy, and chiropractic care, but had continued pain. A CT scan of the lumbar spine on 28 May 1998 revealed a mild disc bulge at L5-S1, without significant canal or neuroforaminal narrowing, and degenerative changes at L4-L5 and L5-S1. He was seen by Physical Medicine and Rehabilitation (PMR) on 12 June 1998 and continued conservative management recommended. An orthopedic evaluation on 23 September 1998 recommended no surgery. A bone scan, accomplished on 18 November 1998 for the LBP, showed increased uptake in the cervical spine, right acromioclavicular (AC) joint, and sternomanubrial joint; however, the thoracolumbar spine was normal. He continued conservative management with periodic follow up in orthopedics and family practice over the next few years. He was given a permanent U3L3 profile and referred to MEB. A neurosurgical consult to the MEB on 26 March 2002 (10 months prior to separation) noted normal gait, normal ROM of the lumbar spine, and normal sensation, strength, and reflexes. Heel and toe walk were normal. The CI reported minimal sciatic pain and no incontinence. He did have minimal tenderness to palpation and there was no comment regarding spasm. The CI's commander's statement dated 31 July 2002 cites his profile as the basis for stating that the CI is non-deployable; this statement does not mention any specific underlying diagnosis. The CI had multiple temporary profiles for his back. The final, permanent U3L3H2 profile was issued on 16 August 2002 citing his back, neck, and hearing conditions. The MEB narrative summary (NARSUM) dated 28 August 2002 (6 months prior to separation) noted the CI had full ROM of lumbar spine and normal gait, reflexes, sensation, and strength; there was no comment regarding spasm. No incapacitation was noted. At the C&P exam on 25 September 2002 (5 months prior to separation), the CI stated he had constant pain and required bed rest for several hours and the attention of a physician two to three times a month. This is not supported by the records in evidence. Posture and gait were normal. His ROM was reduced to 30 degrees in flexion as well as 20 degrees in extension. There was also loss in all other planes of movement. The ROM was limited by pain. There were no neurological abnormalities, muscle spasm, tenderness, or radiculopathy. X-rays showed minimal spondylosis (degenerative changes). The Board first considered if DDD lumbar spine, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above. The Board notes that the CI had organic basis for his pain in that a CT revealed disc bulge and degenerative disc disease. The CI was placed on numerous profiles that specifically noted his lumbar disease as a condition for permanent duty restrictions. The commander did not distinguish between the neck and the back; a letter from the CI's commander dated 31 July 2002 stated that the CI cannot perform his duties within the limits of his profile. After consideration of above, all members agreed that DDD lumbar spine, as an isolated condition, would have rendered the CI incapable of continued service within his MOS; and, accordingly merited a separate rating. The Board directed its attention to the rating recommendation based on the above evidence. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. The Board notes that the 2003 VASRD standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards in 2004. As already discussed for the cervical spine, the MEB examination is given the highest probative value for rating purposes. The Board considered the various rating options for the back. The MEB examiner documented a normal gait, neurological examination, and ROM. Neither spasm nor incapacitation was noted. The most proximate X-ray to separation showed minimal spondylosis. The Board determined that the presence of the X-ray findings in the absence of limitation in ROM and incapacitation supported a 10% for the back via analogous code 5099-5003, degenerative arthritis. The Board could find no route to a higher rating. Thus after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% coded 5099- 5003 for the DDD lumbar spine condition. 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. As discussed above, PEB reliance on the USAPDA pain policy for rating chronic pain due to cervical spondylosis and LBP due to lumbar DJD was operant in this case and the conditions were adjudicated independently of that policy by the Board. In the matter of the DDD cervical spine condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. In the matter of the DDD lumbar spine condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. 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 Degenerative Disc Disease Cervical Spine 5099-5003 10% Degenerative Disc Disease Lumbar Spine 5099-5003 10% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120913, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxx, AR20130007485 (PD201201569) 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 rating to 20% without 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 xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)