RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02481
BRANCH OF SERVICE:  Army	BOARD DATE:  20141030
SEPARATION DATE:  20041026

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Combat Medical Specialist) medically separated for neck and back pain with degenerative disc disease (DDD).  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The low back pain (LBP) with DDD and chronic neck pain conditions, characterized as medically unacceptable, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded flexible pes planus (flat feet).  The Informal PEB adjudicated the neck and back pain with DDD as unfitting, rated 10%, with likely application of Department of Defense Instruction (DoDI) 1332.39.  The pes planus was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “One of the reasons is that I did not get to have a physical done when I left the military.  It was scheduled in Germany, and then my orders were changed having me leave Germany before the scheduled appointment.  When I called to reschedule the hospital in Lanstuhl said that they could not get it any earlier but to not worry I would get an exam from the VA when I returned to the states.  When I got the results of the rating it stated that I was a no show for the appointment.  I did not know that I could argue that point then and just accepted it.  Another issue is the fact that not all of my issues during my time in service were recorded, as I was a medic most issues were just dealt with by our PA and no paperwork done since injuries were not popular in the Infantry.  One of which was the damage to my right knee which was not noted because of happening during training.  A final reasoning on a re-look of my medical issues is that I was awarded 10% for back pain, however what I have is a spinal cord injury.  It is causing further issues than the loss of feeling in my left thigh.  I also lose feeling in both legs and feet very easily, and also have pressure placed on my spine in the cervical area as was not noted until and MRl (which seems to have disappeared) here at the ST Louis VA.  It is causing headaches and loss of feeling in my arms and hands.  I fear I am destined for a wheel chair as these continue to progress, and was handed a short straw for the responsibility of the Army in the damage.”[sic]

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 low back and neck conditions are addressed below along with the contended not unfitting foot condition.  The contended legs, headaches, arms and hands conditions were not identified by the MEB or PEB; and, thus are not within the DoDI 6040.44 defined purview of the Board.  The Board acknowledges the CI’s information regarding the significant impairment with which his medical conditions continue to burden him.  The Board also acknowledges the CI’s contention that suggests a higher rating should have been granted for other medical conditions. 

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 ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.  The Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected Disability Evaluation System (DES) improprieties in the processing of his case.

RATING COMPARISON:

Service IPEB – Dated 20040701 | VA* - (~2 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Neck & Back pain w/ DDD | 5237 | 10% | Thoracic & Lumbar Spine DDD | 5237 | 10% | 20040907
| | | Neck Pain | 5237 | NSC | 20040907
No Separate MEB/PEB Adjudication | LLE Neuropathy | 8520 | 10% | 20040907
Flexible Pes Planus | Not Unfitting | Bilateral Pes Planus | 5276 | NSC | 20040907
Other x 0 (Not in Scope) | Other x 5
Combined:  10% | Combined:  20%
*Derived from VA Rating Decision (VARD) dated 20041110 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  The PEB combined the neck and back conditions as a single unfitting condition coded to 5237 and rated 10%.  The approach by the PEB reflected its judgment that the constellation of conditions 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 unbundled 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.  

Back Pain with DDD Condition.  The service treatment record (STR) shows the CI had sudden onset of LBP in March 1999 while performing sit-ups.  Medical imaging (thoracic, lumbar and lumbosacral spine X-rays, and thoracic magnetic resonance imaging [MRI]) was unremarkable.  A 26 April 2001 thoracic spine MRI showed a small L5-S1 right disc protrusion without nerve root impingement.  A 22 May 2001 whole body bone scan showed no pathological uptake in the spine.  At the 9 June 2003 neurology consult, the CI complained of a 6-month history of numbness and tingling over the left lateral thigh and a burning pain with prolonged standing.  The gait, strength and reflexes were normal.  Left lateral thigh hyperalgesia (abnormal pain sensitivity) was present, but sensation was intact in all other areas.  Tapping elicited paresthesia (abnormal sensation) over the distribution of the left lateral femoral cutaneous nerve (a peripheral nerve).  The neurologist diagnosed a left lateral femoral cutaneous neuropathy (injury, disease, irritation, or dysfunction causing peripheral nerve pathology).  Nerve root irritation (radiculopathy) was not diagnosed and no further neurologic evaluation was recommended.  In the 4 June 2004 MEB narrative summary (NARSUM) by orthopedic surgery, the CI complained of LBP with left anterior thigh pain, tingling and numbness.  The LBP was increased with activity.  Conservative management was unsuccessful and surgery was not recommended.  Radiculopathy was not present.  There was paravertebral muscle spasm with motion, but the gait and contour were normal.  The CI could bend forward with fingertips 40 cm from floor.  Lying, however, the CI could bring the knees to the chest, and the chin to the knees, with low back discomfort.  Lateral bend, rotation and hyperextension were limited at the extremes.  Provocative tests to elicit sciatic nerve compression were negative.  
The neurological exam was essentially normal except for the decreased sensation on the left anterior lateral thigh.  The diagnosis was listed as LBP with DDD.  A lumbar spine X-ray was normal.  The CI did report for the 7 September 2004 range-of-motion (ROM) evaluation, but did not report for the scheduled VA Compensation and Pension (C&P) examination and requested that his records be evaluated without it.  
The back 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)

NARSUM 4.8 Mos. Pre-Sep

Outpatient 4.7 Mos. Pre-Sep

VA C&P 1.6 Mos. Pre-Sep

Flexion (90 Normal) | Fingertips ~40 cm of floor | 75 | 90
Combined (240) | -- | 210 w/ 3 reps | 205
Comment | 40 cm is greater than 60 degrees, but less than 90 | Lumbosacral not Thoracolumbar spine | Goniometer utilized
§4.71a Rating | 10% | 10% | 10%

The Board first considered whether the back pain condition was separately unfitting for continued military service.  Chronic back pain was implicated in the permanent physical profile, commander’s statement and the MEB determined it to be medically unacceptable.  All Board members agreed that the back pain condition was the primary condition interfering with the CI’s ability to perform the military mission and that it was separately unfitting.  The Board then considered its rating recommendation for the back pain condition.  The PEB and VA rated the neck and back pain with DDD condition as lumbosacral or cervical strain (5237) at 10%.  No route to a higher rating was found.  Board members agreed that, although muscle spasm was in evidence on the NARSUM examination, there was no evidence for an abnormal gait or contour secondary to the spasm to support a 20% rating.  The Board considered if an unfitting neuropathy was present at separation, but there was no evidence that motor weakness or sensory loss impaired duty sufficiently to be separately unfitting and warranting an additional disability rating.  After due deliberation, considering all of the evidence, and mindful of VASRD §4.3 (reasonable doubt), the Board recommends that the back pain with DDD condition be found separately unfitting, coded 5237, and rated at a 10% disability.

Neck Pain with DDD Condition.  The STR reports a history of a whiplash injury in 1989.  Scattered encounters by multiple providers (emergency department staff, primary care physician, orthopedic surgeon, orthopedic physician assistant and physical therapist), provided limited and conflicting information regarding neck complaints, associated symptoms and exam findings.  Complaints were variable and included intermittent neck pain with associated headaches, shoulder pain, and left arm, hand, and finger numbness.  Symptoms were increased with wearing a helmet and overhead work.  Examinations and imaging were unremarkable.  The 9 June 2003 neurology consult contained no neck-specific complaint or diagnosis.  A spinal cord MRI on 3 December 2003 showed a left disk bulge at C5-6 which contacted the anterior spinal cord and the left C6 nerve root.  The orthopedic surgeon opined that the neck condition may be medically unacceptable as the CI had difficulty wearing the helmet, web gear and load-bearing equipment for prolonged periods.  The 7 June 2004 cervical spine X-ray was essentially normal.  The neck ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are charted below.

Cervical ROM
(Degrees)

NARSUM 4.8 Mos. Pre-Sep

PT 4.0 Mos. Pre-Sep

VA C&P 1.6 Mos. Pre-Sep

Flex (45 Normal) | At UE FROM | 45 | 454
Combined (340) | “ | --- | 325 after 5 reps
Comment | FROM | --- | Goniometer utilized
§4.71a Rating | 0% | 10% | 10%

The Board first considered whether the neck pain condition was separately unfitting for continued military service.  Chronic neck pain was implicated in the permanent physical profile and MEB, but not in the commander’s statement.  The Board noted that the orthopedic surgeon determined that the condition was medically unacceptable due to interference with the wear of a helmet and protective gear.  
The Board noted the evidence reasonably supported a conclusion that the neck pain condition alone would have interfered with his military duties and was separately unfitting.  The Board then considered its rating recommendation.  The PEB rated the unfitting neck and back pain at 10% using the 5237 code.  The VA denied service-connection for neck pain.  The ROM on the VA C&P examination supported a 10% rating.  No route to a higher rating was found.  Therefore, the Board recommends that the neck pain condition be found separately unfitting, coded 5237, and rated at a 10% disability.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral pes planus (flat foot) condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The MEB listed flexible pes planus as medically acceptable and existing prior to service.  The STR remained silent regarding foot complaints since 1994.  Foot pain was not implicated in the permanent profile or commander’s statement.  The contended bilateral pes planus condition was reviewed and considered by the Board.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the bilateral pes planus condition and so no additional disability rating is recommended.

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.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends that the neck and back conditions be found separately unfitting and each rated 10% and coded 5237 IAW VASRD §4.71a.  In the matter of the contended bilateral pes planus condition, 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Back pain with DDD condition | 5237 | 10%
Neck pain with DDD condition | 5237 | 10%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131118, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXXXXX, AR20150008382 (PD201302481)

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		     XXXXXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-02481