RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02061
BRANCH OF SERVICE: Army 	BOARD DATE:  20140805
SEPARATION DATE:  20040805

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (77F/Petroleum Supply) medically separated for a neck and upper back problem.  The neck and upper back conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The neck and upper back condition, was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic neck and upper back pain” as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals at that time and was medically separated.

CI’s CONTENTION:  “My injuries were service connected resulting in neck, upper and lower back pain due to serving in my military occupation.  I have suffered for years with pain which has resulted negatively with me staying in the Army for 20 years.  Doing day to day tasks such as sleeping without my neck popping, driving my car, walking distance and lifting my special needs child when necessary.  My range-of-motion (ROM) has been limited at times due to the pain I suffer on a daily basis.  I cannot run in the park with my children, I cannot stand for long periods of time due to having muscle spasms, flare-ups, and this has been depressing and difficult with my day to day activities for years. I did not have these problems before the military and since my pain issues in my neck and back I would like to be considered for a PDBR.”

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 rating for the unfitting neck and upper back pain is addressed below.  The contended low back condition was not identified by the MEB or PEB; and, thus is not within the Board’s purview.  No other conditions are within the DoDI 6040.44 defined purview of the Board.  Any condition outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records. The Board acknowledges the sentiment expressed by the CI regarding the impairment with which her conditions continue to burden her; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate service 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 IPEB – Dated 20040511	VA* – (1 mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck and Upper Back Pain	5237	10%	Chronic Neck and Upper Back Strain	5237	10%	20040701	
Other x 0 (Not in Scope)	Other x 0	
Combined:  10%	Combined:  10%	
*Derived from VA Rating Decision (VARD) dated 20040823 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Chronic Neck and Upper Back Pain.  The CI has had a long history of pain in the neck and upper back region.  She was treated with medication and physical therapy.  However, in spite of treatment, her symptoms persisted.  She was referred to the Disability Evaluation System by her unit commander, and an MEB was initiated.  The MEB physical examination (PE) was on 7 January 2004.  At that visit, the CI reported that certain activities made her pain worse.  These activities included push-ups, sit-ups, running, jumping, and carrying her children up and down four flights of stairs.  On PE, the upper extremities were symmetrical without gross atrophy.  Manual muscle strength testing was 5/5 (normal) bilaterally.  On active ROM, the CI grossly lacked full chin flexion (chin to chest).  The examiner’s diagnostic assessment was:  chronic neck and upper back pain from ligament strain, from repetitive overuse of upper torso.

A month prior to separation, on 1 July 2004, the CI had a VA Compensation and Pension (C&P) exam.  She described her overall health as “good.”  She reported that she had begun light running, and could sustain heavy physical activities without immediate distress.  On general appearance, she appeared to be fit and healthy, and in no distress.  Posture and gait were normal.  On PE, the neck was supple with no pain on palpation.  There was full ROM of the spine and no paraspinal muscle spasm was present.  Neurological exam of the upper extremities was normal, with symmetric musculature and strength bilaterally.  Once again, the examiner’s diagnosis was: chronic neck and upper back pain from ligament strain, from repetitive overuse of upper torso.  The ROM evaluation from this July 2004 C&P exam is summarized in the chart below.

Cervical ROM
(Degrees)	VA C&P ~1 mo. Pre-Sep
(20040701)	
Flex (45 Normal)	45 (50)	
Extension (45)	35	
R Lat Flexion (45)	45	
L Lat Flexion (45)	30	
R Rotation (80)	65	
L Rotation (80)	65	
Combined (340)	285	
Comment	Examiner wrote “full”	

The Board carefully reviewed all available evidence, and directs attention to its rating recommendation.  The Army PEB chose diagnostic code 5237 (cervical strain), and assigned a disability rating of 10%.  The neck pain and the upper back pain were bundled together, and treated as a single unfitting condition.  The Board evaluated whether or not it was appropriate for the two problems to be “bundled” together.  The Board must determine if the PEB’s approach of combining the problems under a single rating was reasonably justified in lieu of separate ratings.  The Board must apply separate ratings in its recommendations if compensable ratings for each condition are achieved IAW the VASRD.  If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each ‘unbundled’ condition was separately unfitting.  After due deliberation, the Board agreed that the evidence does not support a conclusion that both of the chronic pain problems, separately, would have rendered the CI unable to perform her required military duties.  Therefore, the Board does not recommend a separate disability rating for each of the pain problems.  Her pain was in a region of her body involving neck and upper back.  There is insufficient reason to treat this painful region as two separate regions.  The Board concluded that it is appropriate for the neck pain to be bundled together with the upper back pain and treated as a single unfitting condition.

The 1 July 2004 C&P exam was performed just a month prior to separation and therefore had significant probative value.  At that exam, combined cervical ROM was 285 degrees.  IAW VASRD §4.71a, a 10% rating is warranted when combined cervical ROM is greater than 170 degrees but not greater than 335 degrees.  The Board determined that a disability rating of 10% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the chronic pain condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling condition which would justify a rating higher than 10%.  The Board also considered the matter of cervical peripheral neuropathy.  After review of all the information in the record, there was insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the chronic 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the chronic neck and upper back pain, 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 20131101, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150001812 (PD201302061)

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