RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02289
BRANCH OF SERVICE:  Army	BOARD DATE:  20140815
SEPARATION DATE:  20040830

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (63B/Light Wheel Vehicle Mechanic) medically separated for chronic neck and low back pain (LBP).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB only referred “chronic neck pain” and “chronic low back pain” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The PEB adjudicated the chronic neck and low back conditions as unfit, both absent neurologic abnormality, and rated each 10% with application of the VA Schedule for Rating Disabilities (VASRD) reference to the .  The CI made no appeals and was medically separated.

CI CONTENTION:  “All my disabilities were not included in the medical board proceedings.”

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 neck and low back conditions are addressed below; 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.

RATING COMPARISON:

Service IPEB – Dated 20040721 | VA – Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Neck Pain…w/o Neurologic Abnormality | 5242 | 10% | Degenerative Disc Disease, Cervical Spine | 5243 | 0% | STR
Chronic LBP …w/o Neurologic Abnormality | 5299-5237 | 10% | Limitation of Motion, Lumbar Spine | 5237 | 0% | STR
Other x 0 (Not in Scope) | Other x 2 | STR
Combined:  20% | Combined:  0%
Derived from VA Rating Decision (VARD) dated 20060831 (most proximate to date of separation [DOS]).
VARD 20070817 increased DC 5237 and 5243 to 20% each, effective 20040901.  VARD changed DC 5237 to DC 5243, maintaining the 20% rating for this code, effective 20040901.  

ANALYSIS SUMMARY:

Chronic Neck Pain.  The STR indicated that on 18 July 2003, the CI noted severe pain in his neck and arm after he pulled himself up in the back of a Humvee.  The CI complained of pain when wearing his personal protective equipment.  He did have equal grip strength.  Electro-diagnostic studies showed bilateral carpal tunnel syndrome (CTS) (indicating a nerve problem below the neck) without evidence of cervical radiculopathy.  The record also indicated that the CI was on Workman’s Compensation for ulnar nerve entrapment and surgery had been scheduled prior to activation.  Neurosurgical evaluation indicated the CI had chronic neck pain related to degenerative disc disease (DDD) consistent with magnetic resonance imaing findings.  Treatment with physical therapy and medications was inadequate.  The commander’s statement dated 26 February 2004 indicated the CI is physically incapable of performing basic soldiering tasks and MOS-related duties due to his neck and back pain.  He was unable to lift over 10 pounds or march over one half mile and was prohibited from wearing a backpack and a helmet.  At the MEB examination dated 27 February 2004, the CI reported neck pain down to shoulders, which was constant and radiated into the head.  Numbness of the fingers was associated with prolonged standing or cold weather.  The MEB physical examination noted decreased range-of-motion (ROM) of the cervical areas and tenderness with spine palpation.  The narrative summary (NARSUM) dated 7 April 2004 noted the CI could not perform the duties of his MOS secondary to chronic low back and neck pain.  A permanent profile U3/L3 dated 12 May 2004 was issued for neck pain, CTS and a chronic lower back condition (discussed below).  There was not a VA Compensation and Pension (C&P) examination proximate to separation.  At the VA C&P examination performed 26 months after separation and well outside the 12-month window assigned higher probative value, the CI reported cervical pain “all the time,” which was aggravated with “any movement and driving.”  He noted it radiated down the right arm to hand with numbness in the 4th and 5th fingers and interfered with his ability to work, “because [he was] in pain all the time and couldn’t “lift anything.”  X-Rays of the cervical spine dated 24 October 2006 revealed mild to moderate degenerative changes over the lower cervical spine, while a CT cervical spine series dated 24 October 2006 revealed multilevel degenerative disk disease of the spine.  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Cervical ROM
(Degrees)

PA ~6 Mo. Pre-Sep

MEB ~5 Mo. Pre-Sep

VA C&P ~26 Mo. Post-Sep

Flex (45 Normal) | 5 | 30 | 30
Combined (340) | 55 | 265 | 220

Comment

No comment made regarding the degree of restriction
These values do not track with the pathology in evidence

Painful motion
Tender to palpation

Pain to percussion; pain on motion; evidence of weakness, lack of endurance, fatigue and incoordination with repetition with no additional loss of motion

§4.71a Rating | 30% | 20% | 0% (Revised to 20% VASRD 17 August 2007)

The Board directs attention to its rating recommendation based on the above evidence.  The Informal PEB (IPEB) rated the CI at 10% using the code 5242 (degenerative arthritis of the spine) for chronic neck pain related to cervical DDD with a ROM limited by pain, tenderness to palpation and no neurologic abnormality.  The VA initially rated the CI 0% using code 5243 (Intervertebral disc syndrome) for DDD of the cervical spine with a history of bilateral radiculopathy pending an examination by the VA.  The VASRD dated 17 August 2007 increased the rating for the cervical spine to 20% based on limitation in forward flexion relying on the examination 26 months post-separation.  The ROM measurements performed by a physician assistant 6 months prior to separation and a month prior to the NARSUM report examination, show a marked limitation.  However, these measurements are incongruous with the NARSUM measurements.  The NARSUM measurements are assigned a higher probative value as they were performed by a physician, were more proximate to separation and were more consistent with the expected findings from the X-ray studies and physical examinations.  The second, more probative examination showed a forward flexion of 30 degrees, which warrants a 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic neck condition.

Chronic Low Back Pain.   The service record indicated the CI’s LBP apparently began in July of 2003 without trauma or specific mechanism of injury although he related it to the same incident in which he injured his neck.  The first evaluation was performed on 26 January 2004 at which time the CI noted pain at the central and right lower when he walked.  X-rays of the lumbar spine showed congenital and developmental changes.  Neurosurgical evaluation on 8 January 2004 noted that LBP was without leg pain or numbness.  Treatment was with anti-inflammatory medication and muscle relaxers, which did not help.  The commander’s statement dated 26 February 2004 indicated the CI is physically incapable of performing basic soldiering tasks and MOS-related duties due to his back pain.  At the MEB examination dated 27 February 2004, the CI reported lower back pain in the right “small of back” without radiation.  On examination, he had decreased ROM of the lumbar spine and tenderness with spine palpation.  Provocative maneuvers for nerve root irritation (straight leg raise) were negative.  A permanent profile U3/L3 dated 12 May 2004 was issued for neck pain, CTS and a chronic lower back condition.  The NARSUM dated 7 April 2004 also noted the CI could not perform the duties of his MOS secondary to his chronic LBP.  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)

PA ~6 Mo. Pre-Sep

MEB ~5 Mo. Pre-Sep

VA C&P ~26 Mo. Post-Sep

Flexion (90 Normal) | 70 | 70 | 30
Combined (240) | 150 | 150 | 160
Comment | AO Comments | DTR 1+, sensation intact, SLR negative | DeLuca negative
§4.71a Rating | 10% | 10% | 20%

The Board directs attention to its rating recommendation based on the above evidence.  The IPEB rated the CI 10% using code 5299-5237 (Lumbosacral or cervical strain) for chronic LBP with no neurologic abnormality and tenderness to palpation.  The VA initially rated the CI 0% using code 5237 (Lumbosacral or cervical strain) for limitation of motion of the lumbar spine with chronic LBP pending a VA examination.  The VASRD dated 17 August 2007 assigned a rating of 20% based on forward flexion of 30 degrees with pain at 30 degrees with no additional loss of ROM with repetition.  As discussed previously, the VA examination is outside the 12-month window assigned higher probative value and the examination by the physician assistant was assigned a lower probative value than that of the NARSUM examiner, a physician, although this did not impact the rating for the back.  The Board considered the evidence proximate to separation and found no route to a rating higher than the 10% rating assigned by the PEB.  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 chronic LBP 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 pain condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the Low Back Pain conditions 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 recommends that the CI’s prior determination be modified as 
follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Chronic Neck Pain | 5242 | 20%
Low Back Pain | 5299-5237 | 10%
COMBINED | 30%

The following documentary evidence was considered:

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

			
XXXXXXXXXXXXXXXXX
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, AR20150005953 (PD201302289)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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

PD-2013-02289