Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE NUMBER:  PD1200808
BRANCH OF SERVICE:  Army	BOARD DATE:  20130801
Separation Date:  20020718

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M10/Heavy Vehicle Operator), medically separated for “chronic pain, neck and low back, without neurologic abnormality” (rated as a single unfitting condition).  The CI complained of initial onset of low back pain (LBP) with bilateral numbness radiating to both great toes after an injury during Advanced Individual Training in 1997.  She also complained of chronic neck pain without a specific injury noted.  Despite extensive, conservative (non-operative) treatment for the upper and lower back pain, the CI failed to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent PU2/L3 Profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded chronic back pain and chronic neck pain as medically unacceptable for Physical Evaluation Board (PEB) adjudication IAW AR 40-501.  The PEB adjudicated the “chronic pain, neck and LBP, without neurologic abnormality” as unfitting, rated together as 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated with a 10% disability rating.

CI CONTENTION:  The CI elaborated no specific contention in her 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 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 will be reviewed in all cases.  Therefore, the “chronic pain, neck and low back, without neurologic abnormality” condition meets the criteria prescribed in DoDI 6040.44 regarding Board purview and is addressed below.  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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20020403 | VA (13 Mos. Post-Separation) – All Effective Date 20020719
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Pain, Neck & Low Back, w/o Neurologic Abnormality | 5099-5003 | 10% | Degenerative Disc Disease (DDD), Cervical Spine | 5290 | 10% | 20030814
| | | DDD, Lumbar Spine | 5292 | 10% | 20030814
↓No Additional MEB/PEB Entries↓ | Other x1 | 20030814
Rated:  10% | Combined:  20%
Derived from VA Rating Decision (VARD) dated 20030911 (most proximate to Date of Separation)

ANALYSIS SUMMARY:  The PEB adjudicated the chronic back pain and the chronic neck pain conditions under the single analogous code 5099-5003, degenerative arthritis, and applied the USAPDA pain policy for rating purposes.  This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board uses the Veterans Affairs Schedule for Rating Disabilities (VASRD) guidance for its recommendation.  The Board will apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted, it must satisfy the requirement that each “unbundled” condition was reasonably justified as separately unfitting, with the caveat that the final recommendation may not produce a lower combined rating than that of the PEB.

The Board first considered if both the chronic neck and LBP conditions, having been de-coupled from the combined PEB adjudication, were each reasonably justified as separately unfitting.  The service treatment record (STR) includes a long history of LBP with many visits for treatment and duty restrictions.  The commander’s statement also identified the LBP as negatively impacting the CI’s ability to perform MOS specific duties.  All members agreed that the functional limitations in evidence reasonably justified the conclusion that the LBP condition was unfitting in and of itself and accordingly merits a separate rating.  The Board also considered if the chronic neck pain was unfitting when “unbundled” from the LBP condition.  The evidence for the neck pain being separately unfitting is sparse.  Although mentioned in the commanders statement, it was only profiled once and that was in preparation for the MEB, there was no specific injury noted (§4.41), no evidence of functional impairment specifically related to the C-spine, and there were very few STR entries concerning the neck prior to the MEB work-up.  All members agreed that the chronic neck pain was not unfitting.

Chronic Low Back Pain Condition.  The CI developed LBP with bilateral numbness radiating to both great toes after an injury in July 1997.  The CI was referred to physical therapy (PT) with a diagnosis of mechanical LBP and right sided muscle spasms without any sensory or motor changes.  Her LBP was treated with non-steroidal anti-inflammatory drugs, muscle relaxers, and PT intermittently from August 1997 through to June 2000.  During that time period, her exams were consistent with LBP with sciatica (negative straight leg raise with normal reflexes and strength) and she had normal thoracic and lumbar spine X-rays.  Her back pain continued and in April 2001 she had a lumbar spine magnetic resonance imagining (MRI) study that showed mild spondylosis throughout the lumbar spine with evidence of degenerative disc disease (DDD) at the L4-5 and L5-S1 levels; evidence of a small central herniated nucleus pulposus (HNP) at the L5-S1 level and evidence compatible with an early small left paracentral HNP at the L4-5 level.  In May 2001, the CI was evaluated in a pain clinic and received the first of a series of three epidural steroid injections.  An electromyogram (EMG) and nerve conduction study performed in July 2001 was normal.  The CI underwent a facet block for chronic LBP in February 2002.  The narrative summary (NARSUM), accomplished 3 months prior to separation, indicated that the CI’s constant LBP was 6-7 out of 10 in intensity and was aggravated by mopping or leaning over the sink to wash dishes.  The physical exam findings showed a normal gait, strength, reflexes and sensation bilaterally.  The VA Compensation and Pension (C&P) exam accomplished 13 months after separation documented ongoing pain and numbness in the lower extremities but to a lesser degree.  On physical examination, thoracolumbar forward flexion was 90 degrees (normal) and extension was 30 degrees (normal).  There was mild tenderness over the lower lumbosacral area.  The neurologic exam was normal.  The examiner’s diagnosis was DDD of the lumbosacral spine, mild, with mild loss of function and mild radiculopathy.

The Board directs attention to its rating recommendation based on the above evidence.  The “unbundled” chronic back pain condition was adjudged by the Board to be separately unfitting, therefore, a separate coding and rating recommendation will be made IAW DoDI 6040.44.  While the PEB did not utilize VASRD standards, the VA used the 2002 VASRD standards in effect at the time of separation, and applied VASRD code 5292, limited motion of the lumbar spine, and rated the condition 10% citing “…slightly limited motion of the lumbar spine or demonstrable deformity of a vertebral body from fracture with muscle spasm or limited motion.”  The 2002 standards for rating impairment based on limited motion were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds based on degrees of range-of-motion (ROM) impairment.  The STR and NARSUM do not document any measurement in degrees of ROM useful for objectively rating the CI’s impairment due to LBP.  While the C&P exam does contain useful measurements in degrees of ROM under current VASRD standards, it was performed 13 months after separation potentially minimizing the assessment of her impairment proximate to separation.  It stated that the CI had “…ongoing pain, and numbness in the lower extremities but to a lesser degree.”  No exam has a higher probative value compared to another, therefore the Board considered the totality of the record for its rating recommendation.

The CI had symptoms compatible with sciatic neuropathy with characteristic pain but no abnormal neurological findings or demonstrable muscle spasm.  Rating the CI’s symptoms as “moderate” with recurring attacks (20%) under VASRD code 5293, intervertebral disc syndrome, is easily supported by the STR.  This is the best clinical fit as it is most consistent with her complaints and MRI findings support its use.  The CI did have recurring attacks as required for the 20% rating.

The rating criteria for VASRD code 5293, intervertebral disc syndrome, are copied below for the reader’s convenience:

5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief............................................ 60
Severe; recurring attacks, with intermittent relief.......................... 40
Moderate; recurring attacks........................................................... 20
Mild................................................................................................. 10
Postoperative, cured.......................................................................   0

Other rating options utilizing codes 5292 and 5295, lumbosacral strain, were deliberated by the Board.  Under code 5292, a rating of slight (10%) is most consistent with the C&P’s ROM measurements using current VASRD guidelines but was outside the 12-month window for consideration of post-separation evidence.  Moderate (20%) was supported by the STR with consideration of the “intensity” of her treatment interventions (numerous epidural steroid and facet injections), the number of duty limiting profiles and considering a C&P exam statement that she was “better” 13 months after separation and rated as slight (10%) by the VA.  A designation of moderate (20%) is more consistent with the clinical picture (and reasonable doubt favoring the CI) for rating proximate to separation.  Rating under code 5295, the 10% option, for characteristic pain on motion, is the only appropriate choice based on the STR evidence.  She did not have muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position as required for the 20% rating.  Although the CI had a sensory radiculopathy with pain, there was no motor component to the radiculopathy.  An EMG performed of the lower extremities was normal.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The sensory component in this case had no functional implications.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  There is no reasonable rating option that results in a rating higher than 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% coded 5293 for the chronic back pain 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, neck and low back, without neurologic abnormality was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the “unbundled” chronic back pain condition, the Board unanimously agrees that it was separately unfitting and unanimously recommends a disability rating of 20% coded 5293 IAW VASRD §4.71a.  In the matter of the “unbundled” chronic neck pain condition, the Board unanimously agrees it was not separately unfitting and that it cannot recommend it for additional disability rating.  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 her prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Low Back Pain | 5293 | 20%
Chronic Neck Pain | Not Unfitting
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120616, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130018101 (PD201200808)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1200808