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:  PD1201640
BRANCH OF SERVICE:  Army	BOARD DATE:  20130503
SEPARATION DATE:  20021012

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (92Y10/Supply Specialist) medically separated for neck and back condition.  The injuries occurred in 2001 from a fall and were treated non-surgically with anti-inflammatory medications and physical therapy, but she did not respond to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic low back pain (LBP), mild lumbar degenerative joint disease (DJD) and chronic neck pain conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated chronic pain, neck and low back as a single unfitting condition, rated 10%, with cited 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:  “My condition has not improved, and, I am still having problems but they are getting worse.”

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 chronic pain, neck and low back condition is addressed below.  Any other condition or contention not requested in this application, remain eligible for future consideration by the respective Service Board for Correction of Military Records.  The Board acknowledges the CI’s information regarding the significant impairment with which his condition continues to burden her; but, must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.

RATING COMPARISON:

Service IPEB – Dated 20020731 | VA - (3 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Pain, Neck and Low Back | 5099-5003 | 10% | Chronic Pain, Cervical & Lumbar... | 5290-5295 | 10% | 20030114
No Additional MEB/PEB Entries | Other: NSC x 1 | 20030114
Combined:  10% | Combined:  10%
Derived from VA Rating Decision (VARD) dated 20030218 (most proximate to date of separation (DOS)).   

ANALYSIS SUMMARY:  The DES is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veteran Affairs (DVA) but not determined to be unfitting by the PEB.  However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Neck and Low Back Chronic Pain Syndrome.  The PEB combined the neck chronic pain syndrome and LBP syndrome conditions as a single unfitting condition coded analogously to 5003 and rated 0% with application of the USAPDA pain policy AR 635-40 B24.f., citing the pain as slight and constant.  The approach by the PEB not uncommonly reflected its judgment that the constellation of condition was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.

Chronic Neck Pain Condition.  The CI had a history of chronic neck pain, starting April 2001, when she fell from a stationary military vehicle during training.  X-ray examination, 18 July 2001, evidenced a normal cervical spine.  Subsequently, she complained of constant neck pain (with occasional radiation into the right upper extremity), unalleviated by medication and physical therapy.  Clinic evaluation, on 24 September 2001, recorded complaint of right arm numbness.  Neck range-of-motion (ROM) was full with some discomfort and tenderness.  Strength, reflexes and sensation of the upper extremities were normal.  A magnetic resonance imaging (MRI) scan of the cervical spine, 24 October 2001, was normal.  Electrodiagnostic testing (electromyogram and nerve conduction velocity testing) of the upper extremities was normal (no evidence for radiculopathy or compressive neuropathy).  The CI continued to complain of neck pain and could not perform the full range of activities required by her MOS so she was referred to the MEB.  The commander’s letter, 22 April 2002, stated that the CI was unable to perform her duties as a supply specialist due to neck and low back pain including wear of the Kevlar helmet.

The Board considered whether the cervical spine pain condition, when considered alone separate from the lumbar spine pain syndrome, was unfitting for continued military service.  The Board noted that the CI complained of neck pain with occasional radiation in the right arm.  Imaging studies and examinations performed over time failed to evidence any abnormalities of the cervical spine, muscular structures or nerves.  All cervical spine ROM exams were normal, not limited by pain.  The MEB narrative summary (NARSUM), as well as, service treatment records (STRs) indicated that the back was worse than the neck pain.  The Board noted the permanent physical profile indicated the CI was medically cleared to wear a Kevlar helmet and carry a weapon, while the commander statement included reference to the cervical pain as duty limiting.  STRs were reviewed with regard to functional limitations.  One Board member concluded the evidence supported a conclusion the neck pain condition was not separately unfitting while the majority of the Board concluded that there was not sufficient evidence to overcome a determination that the neck pain condition was reasonably justified as unfitting.

The Board then considered its rating recommendation for the unfitting cervical pain condition, at the time of separation.  The MEB NARSUM physical exam from 9 June 2002 recorded that overall the back pain was worse than the neck pain.  On examination, the cervical spine was normal in appearance without deformity.  There was mild tenderness to palpation in the lower cervical paraspinous region with full ROM of the neck, and intact muscle strength.  At the VA Compensation and Pension (C&P) exam, performed on 14 January 2003, approximately 3 months after separation, the CI reported pain rated 5 out of 10 (10 being the maximum level of pain experienced) after taking anti-inflammatory medication, as well as stiffness, without inflammation.  She did not wear a neck brace.  The CI complained of inability to stand for longer periods of time secondary to increased pain.  She reported working at a retail shoe store.  Physical exam noted tenderness to palpation in the trapezius muscle region (upper back) without signs of inflammation.  ROM for the cervical spine was 30 degrees (flexion), 30 degrees (extension), 25 degrees (lateral flexion) and 45 degrees (rotation).  Neuro-muscular exam for both upper extremities was normal.  Both the PEB and VA adjudicated a single 10% rating for the cervical and lumbar pain condition.  The Board considered a separate rating for the cervical spine condition.  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 2002 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 must correlate the above clinical data with the 2002 rating schedule (applicable diagnostic codes include: 5290 limitation of cervical spine motion and 5293 intervertebral disc syndrome).  There was no evidence to support consideration for rating under the codes 5285(vertebral fracture), 5286-5287(ankylosis), or 5293 (intervertebral disc syndrome) as there was no evidence of vertebral fracture, ankylosis or intervertebral syndrome.  The MEB NARSUM physical examination documented normal ROM for the cervical spine that did not attain a minimum rating under code 5290 (limitation of motion for the cervical spine).  Although the C&P examination after separation recorded mild limitation of motion, all examinations prior to separation recorded full ROM and X-rays and MRI were normal.  The MEB NARSUM notes that that back pain was worse than the neck and STRs confirm this.  Based on the normal imaging and examinations, the Board concluded the neck pain condition more nearly approximated the 0% rating.  Although there were functional limitations in vigorous military activities, there was no objective evidence of functional impairment in routine tasks or average civil occupation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separately unfit determination with a disability rating of 0% for the cervical pain syndrome condition.

Chronic Pain, Low Back Condition.  After the injury sustained in April 2001, the CI started complaining of LBP, occasionally radiating to the right thigh.  The pain was exacerbated by running, lifting, prolonged standing and was not alleviated by medication, physical therapy.  Radiologic exam from December 2001 noted a mild right convexity rotoscoliosis (developmental finding) with normal vertebral heights and inter-disk spaces.  Clinical notes up to February 2002 documented full and painful ROM for the lumbar spine, tenderness to palpation in the paraspinous muscles region and occasional radiation of pain into the right thigh.  There was no evidence of decreased muscle strength or abnormal neuro-vascular exams.  An orthopedic surgery examination from February 2002 was the first one to evidence mild limitation of motion (flexion 60 degrees, extension 20 degrees, bilateral bending 30 degrees) associated with pain and muscle tenderness.  MRI exam from May 2002 noted mild disk dessication in the L2-4 region, and minimal disc protrusion L4-5 and L5-S1.  Electromyography and nerve conduction velocity study of the right leg was negative for radiculopathy correlating with the MRI scan results showing no nerve root impingement.  The commander’s letter, 
22 April 2002, stated that the CI was unable to perform her duties as a supply specialist due to low back pain including lifting heavy equipment.

The Board considered whether the lumbar spine pain condition, when considered alone separate from the cervical spine pain syndrome, was unfitting for continued military service.  The lumbar pain condition was main focus of attention over time.  The condition was mentioned in the commander statement and considered severe enough to warrant a permanent profile.  All members agreed that the LBP, as an isolated condition, prevented the CI from meeting the physical requirements of her MOS due to inability to stand for prolonged periods of time, lift more than 30 pounds, and perform other strenuous activities.

The Board then considered its rating recommendation for the unfitting low back pain condition, at the time of separation.  The MEB NARSUM physical exam from 9 June 2002, approximately 4 months prior to separation noted constant pain localized in the lower lumbar region with occasional numbness of the right leg.  The CI considered the back pain “worse” than the neck pain.  She stated the pain was worse in the evening and was aggravated by prolonged standing and strenuous physical activity.  There was tingling in the lateral tight about once per week without weakness, bowel or bladder dysfunction.  Physical exam noted a normal gait, no back deformities, and mild tenderness to palpation in the lower lumbar paraspinous region.  Flexion of the lumbar spine was 75 degrees limited by pain.  Lower back pain was also elicited at terminal extension and terminal side bending.  Strength, reflexes and sensation were intact.  At the C&P exam, performed on 14 January 2003, approximately 3 months after separation, the CI reported back pain rated 5 out of 10 (10 being the maximum level of pain experienced) after taking anti-inflammatory medication, as well as stiffness, without inflammation.  She did not wear a back brace.  The CI complained of inability to stand for longer periods of time secondary to increased pain.  She reported working at a retail shoe store.  Physical exam noted normal posture without antalgic gait.  There was tenderness to palpation in the lumbo-sacral area without inflammation.  Lumbar flexion was 80 degrees; extension was 25 degrees, lateral flexion 25 degrees, and rotation 30 degrees.  Straight leg raising (SLR) was accompanied by tenderness at 50 degrees bilaterally.  Neuro-muscular exam was intact and deep tendon reflexes (DTRs) were symmetrical in all extremities.  The Board notes that the 2002 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 must correlate the above clinical data with the 2002 rating schedule (applicable diagnostic codes including: 5292 limitation of lumbar spine motion; 5293 intervertebral disc syndrome [interim rules based on incapacitating episodes]; and 5295 Lumbosacral strain).  The Board noted the CI had full ROM on most of the medical exams and slightly diminished flexion (75 degrees evidenced at the MEB exam) which increased to 80 degrees, 3 months post separation.  The Board concluded the preponderance of evidence did not support a rating higher that the 10% for mild limitation of motion of the lumbar spine.  There was characteristic pain on motion to support a 10% rating under 5295 (strain), but no evidence such as loss of lateral motion or muscle spasm on forward bending to support a higher rating.  There were no incapacitating episodes to support consideration under 5293 (intervertebral disc syndrome).  Although there was some occasional radiation of pain, there was no evidence of peripheral nerve impairment for consideration of a separate rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separately unfit determination with a rating of 10% for the chronic low back condition.

The Board’s final recommendation for separately unfitting determinations and ratings for the neck and back pain condition results in a combined rating that is not higher than the single rating adjudicated by the PEB for the conditions combined.  Therefore the Board recommends no change in the PEB’s adjudication for the chronic neck pain and 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 was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic neck pain condition, the majority of the Board recommends a separately unfit determination with a disability rating of 0%, coded 5290 IAW VASRD §4.71a.  In the matter of the chronic pain, low back condition, the Board unanimously recommends a separately unfit determination with a disability rating of 10%, coded 5292 IAW VASRD §4.71a.  Since these recommendations result in a combined rating of 10% that is no higher than the PEB’s combined adjudication, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Pain, Neck and Low Back | 5099-5003 | 10%
COMBINED | 10%

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

	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 AR20130010783 (PD201201640)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1201640