RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01911
BRANCH OF SERVICE:  Army	BOARD DATE:  20141112
SEPARATION DATE:  20040823

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reservist, SSG/E-6 (88M10/Motor Transport) who was medically separated for lumbar and cervical spine condition.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The lumbar and cervical spine conditions, characterized as “chronic low back pain” and “neck pain,” were the only conditions forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic low back pain (LBP) without neurologic abnormality” and “chronic neck pain without neurological abnormality” as unfitting, rated 10% and 10% respectively, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI appealed to the Formal PEB (FPEB) which affirmed the PEB findings and ratings.  The CI was then separated.

CI CONTENTION:  “I currently have a combined rating of 90%, disabled.”

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 lumbar and cervical spine conditions are addressed below; and no additional conditions are 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 Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System 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, operating under a different set of laws.

RATING COMPARISON:

Service FPEB – Dated 20040701 | VA - (6 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Low Back Pain w/o Neurologic Abnormality | 5299-5237 | 10% | Radiculopathy, Left Lower Extremity associated with Disc Protrusion Lumbar Spine | 8520 | 40% | 20050212
| | | Disc Protrusion Lumbar Spine | 5243 | 10% | 20050212
Chronic Neck Pain w/o Neurologic Abnormality | 5299-5237 | 10% | DDD, Cervical Spine, Previously Claimed as Cervical Back Injury* | 5243 | 20% | 20050725
Other x 0  (Not in Scope) | Other x 3 |
Combined/Rating:  20% | Combined:  60%
Derived from VA Rating Decision (VARD) dated 20050810 (most proximate to date of separation)
The cervical spine condition was added by VARD of 20060708, backdated to the day after separation

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The CI first reported LBP in 1990 after jumping from a truck and again in 1991 after carrying a ruck pack.  The treatment record indicated “resolved” mechanical LBP in late 1994.  There were periods of similar symptoms of mechanical LBP through the 9-year period from 1994 to 2003.  A magnetic resonance image (MRI) dated 8 April 2003 revealed small L4-L5 and L5-S1 herniated discs.  He continued to experience intermittent LBP with painful symptoms radiating into both lower extremities; left greater than right.  Electro-diagnostic studies from December 2003 were normal.  He underwent three epidural injections without prolonged relief.  Secondary to persistent symptoms, the CI was referred to MEB.  Repeat electro-diagnostic test performed on 28 July 2004 (a month prior to separation) revealed moderately severe left-sided L4-S1 radiculopathy.  An MRI dated 10 August 2004 (2 weeks prior to separation) revealed the prior disc herniation with “mild narrowing” of boney exits for spinal nerves.  At a neurologic examination, obtained 2 months prior to the MEB, the CI’s thoracolumbar flexion was measured at 20 degrees (normal 90 degrees).  

At the MEB narrative summary (NARSUM) examination on 18 March 2004 (5 months prior to separation), the CI reported a sharp LBP extending into both lower extremities; left greater than right.  Aggravating factors included standing or sitting for prolonged periods and relief was obtained with medication and stretching.  He denied weakness.  His functional status included the ability to carry and fire a rifle, wear a helmet and lift up to 20 pounds.  His civilian occupation was a truck driver for the US Postal Service.  The physical examination (PE) revealed a slumped posture with a stiff gait and transfer movements.  There was painful decreased range-of-motion (ROM) and tenderness to the lumbar spine.  Thoracolumbar flexion was limited to 10 degrees.  “The [CI] was extremely reluctant to side bend and he resisted passive ROM adduction.”  The diagnosis remained chronic LBP.  A pain management follow-up appointment obtained in June 2004 indicated LBP at a 9/10.  The examiner stated that “the [CI] complains of pain in his back, but the majority of his pain is in the posterior aspect of both lower extremities.”  

The VA Compensation & Pension examination performed on 12 February 2005 (6 months after separation) the CI endorsed severe LBP with “occasional numbness down his legs.”  The record reflects, “The pain in his back is worse than the pain in his legs.”  The PE revealed a normal gait and decreased ROM; flexion was measured at 65 degrees.  The left lower extremity revealed decreased motor strength and sensation as compared to the right.  There was no comment on the presence of painful motion.  There was “tightness in his back.”  His occupation was working in the mail office.  A FPEB Advisory Opinion dated 2 May 2007 stated, “…medical findings did not support any mechanical basis for ROM limitations nor were there any noted spasms or severe guarding.”

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the back analogously as 5237 (lumbosacral strain) at 10% citing characteristic painful motion.  The VA rated under a peripheral nerve code 8520 (sciatic nerve) at 40% (moderately severe) citing pain and numbness to both extremities; in addition to lumbar disc protrusion for 10% under code 5242 (degenerative arthritis).  Board members first agreed that sufficient evidence of painful motion was present to justify the rating of 10%, as well as the presence of localized tenderness not resulting in abnormal gait or spinal contour IAW §4.59 and §4.71a.  Next, members acknowledged the ROM values reported by the MEB examiner, at 5 months prior to separation, being significantly worse than those reported by the VA examiner approximately the same time period after separation, having very significant implications regarding the Board's final rating recommendation.  The Board thus carefully deliberated its probative value assignment to these differing evaluations and carefully reviewed the file for other corroborating evidence.

It was the action officer’s opinion that the poorer ROM values based on subjective pain responses as recorded by the MEB examiner were not clinically consistent with the objective absence of back spasms on examination.  The measured flexion of 10% was near that of an ankylosed spine which was not applicable in this case.  Although clinically plausible, such severe limitation of motion (lacking a surgical cause or profound multi-level arthritis) would only be manifested with significant and palpable paraspinal muscle spasms, which would have been obvious on examination.  The MEB examiner clearly indicated the CI’s reluctance and resistance in attempting various ROM maneuvers.  Furthermore, the action officer opined that in a non-surgical spine, this degree of limitation severity is consistent with a protective exaggeration of anticipatory pain (that is guarding oneself or exhibiting a reluctance/hesitancy to perform an act “knowing” it will cause pain).  Based on the absence of examination findings just elaborated coupled with the Advisory Opinion noting the same in regards to inconsistent physical findings, members consensus was that the ROM severity could not be medically supported as described.  The Board extensively deliberated on the use of “individual exam” ROM values and concluded that due to the inconsistencies as stated, not to rely on any specific single exam for probative value, but rather the totality of evidence and medical plausibility in its recommendation.  Board members also considered application of §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled,” and clearly, the persistence of painful motion was such the case in this condition.  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 lumbar spine condition.  In light of the symptomatic lower extremity radiculopathy findings, Board members also considered a peripheral nerve code as adjudicated by the VA; but, members agreed that the requisite link of the neuropathy symptoms with functional impairment was not in evidence.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The Board concluded therefore that the radiculopathy condition could not be recommended for an additional disability rating.

Cervical Spine Condition.  Absent direct trauma, the CI first reported neck pain in late 2003; and, persisted throughout the balance of his service career.  A complete radiology work-up was normal and his diagnosis was a neck sprain.  At the MEB exam, the CI reported non-radiating neck pain.  The PE noted C-spine tenderness.  Measured ROMs were not obtained.  Approximately a month prior to the NARSUM, a PT exam revealed normal cervical flexion and a decrease in combined ROM of 175 (normal = 340).  There was no comment in regards to painful motion.  At the VA exam, the CI reported neck pain and stiffness.  The PE revealed decreased flexion at 30 degrees (normal = 45) and painful motion without radiculopathy.

The Board directs attention to its rating recommendation based on the above evidence.  The service analogously coded the unfitting neck condition as 5299-5237 (lumbosacral strain) and rated 10%; whereas the VA found the condition as not service-connected by virtue of a failure to show that a disability has been clinically diagnosed.  Board members first agreed that sufficient evidence of painful motion or a combined ROM was present to justify the PEB’s 10% rating IAW §4.59 or §4.71a.  After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board members agreed that the majority of criteria parameters lent support at the 10% level of impairment, and therefore, concluded that there was insufficient cause to recommend a change in the PEB adjudication for the neck 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 DoDI 1332.39 for rating the neck and back was operant in this case and the conditions were adjudicated independently of that policy by the Board.  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the neck condition and IAW VASRD §4.71a, 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130926, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXX, AR20150006957 (PD201301911)

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						     XXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-01911