RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
BRANCH OF SERVICE: ARMY
SEPARATION DATE: 20061206
NAME: XXXXXXXXXXXX
CASE NUMBER: PD1200396
BOARD DATE: 20121211
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty CPT/O‐3 (13A00/Field Artillery Officer), medically
separated for chronic neck pain and chronic low back pain (LBP). The CI initially injured his back
while deployed in 2004 and then was assaulted in January 2006, injuring his neck and reinjuring
his back. He was treated with medications, duty limitations and physical therapy (PT) without
adequate improvement 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 determined the neck and back
conditions to be medically unacceptable and forwarded both to the Physical Evaluation Board
(PEB) for adjudication. No other conditions were forwarded to the PEB. The PEB adjudicated
the chronic neck pain and chronic LBP conditions as unfitting, rated 10% each, with probable
application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no
appeals and was medically separated with a 20% disability rating.
CI CONTENTION: The CI attached 85 pages consisting of his statement and attachments from
the VA, his personnel file and the service which was reviewed by the Board and considered in
its recommendations. He contends for an increase in the neck and back conditions and
requests the addition of post‐concussive headaches.
SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI
6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined
by the PEB to be specifically unfitting for continued military service; or, when requested by the
CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings
for unfitting conditions will be reviewed in all cases. The remaining conditions rated by the VA
at separation and listed on the DA Form 294 application are not within the Board’s purview. In
this case, only the neck and back conditions are within the 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 Army Board for
Correction of Military Records.
RATING COMPARISON:
Service PEB – Dated 20061010
VA (1 Mos. Pre‐Separation) – All Effective Date 20061205
*Increased to 30 and 20%, respectively, based on the 20070511 C&P examination, effective 20070326
Condition
Chronic Neck Pain
Chronic Low Back Pain
Code
5243
5243
↓No Addi(cid:415)onal MEB/PEB Entries↓
Combined: 20%
Rating
10%
10%
Condition
Cervical HNP with Radiculopathy
to the Bilateral Shoulders
Lumbar Spine HNP with DDD
Post Concussive Syndrome HA
Code
5243
5243
9304‐8045
Rating
10%*
10%*
10%
Exam
20061109
20061109
20061109
0% X 2 / Not Service‐Connected x 2/Deferred x 1
Combined: 30%
ANALYSIS SUMMARY: The Disability Evaluation System (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 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 Veterans 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 his 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 VASRD standards, based on severity at the time of
separation. The Board utilizes DVA evidence proximal to separation in arriving at its
recommendations; and, DoDI 6040.44 defines a 12‐month interval for special consideration to
post‐separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides
in evaluating the fairness of DES fitness determinations and rating decisions for disability at the
time of separation. Post‐separation evidence therefore is probative only to the extent that it
reasonably reflects the disability and fitness implications at the time of separation. The Board’s
recommendation must incorporate a probative value judgment between the disparate
evidence from the file and the VA Compensation and Pension (C&P) examination. The
probative value judgment has to acknowledge a normal tendency to maximize symptoms in the
context of DVA rating evaluations with their attendant secondary gain pressure, but the Board
concedes the validity of all evidence unless contradicting evidence can be cited.
The CI first injured his back in‐theater in August 2004 during a blast from a homicide bomber.
There are no records from his treatment in evidence. On 31 December 2005, he was assaulted
by multiple individuals and suffered a concussion as well as neck and back injuries and
secondary pain. He was placed on quarters for 24 hours after the assault; this is the only record
of quarters for either the back or neck pain in the record. He was treated with medications,
duty restrictions and PT for both conditions without improvement adequate to meet duty
requirements. On 11 January 2006, magnetic resonance imaging (MRI) of the lumbar spine was
suspicious for a 4‐5 mm focal protrusion at L5‐S1 without neural compromise with minimal
degenerative changes in the thoracic spine. An MRI of the cervical spine on 4 March 2006
showed a protrusion and annular tear at C5‐6 with slight indentation of the thecal sac.
Neck Condition. There were three goniometric range‐of‐motion (ROM) evaluations in evidence,
with documentation of additional ratable criteria, which the Board weighed in arriving at its
rating recommendation; as summarized in the chart below.
MEB ~4 Mo. Pre‐Sep
VA C&P ~1 Mo. Pre‐Sep
VA C&P ~6 Mo. Post‐Sep
Cervical ROM
Degrees
Flex (45 Normal)
COMBINED (340)
45 (60, 60, 60)
265
35
250
palpation
10%
15
25
DeLuca negative
30%
Comment
Motion limited by pain
Nml position; tender to
§4.71a Rating
10%
Following the assault on New Year’s Eve, the CI was seen several times in the immediate post‐
trauma period and noted to have pain and reduced ROM. He was treated with PT and home
traction as well as medications. A 14 March 2006 PT appointment documented a moderate
decrease in right cervical rotation which was persistent on a repeat visit ten days later. At an
18 April 2006 PT appointment, he continued to complain of 7/10 pain, but was noted to have
full flexion and left rotation with minimally reduced extension and moderately decreased right
rotation. Strength was noted to be normal in both upper extremities (BUE). The ROM values
2 PD12‐00396
obtained for the MEB examination are above; CI again noted 7/10 pain. At the MEB
examination on 7 July 2006, 5 months prior to separation, the CI reported continued neck pain.
The MEB examiner noted cervical paraspinal tenderness, right trapezius spasm and limited,
painful motion. The narrative summary (NARSUM) was dictated on 14 August 2006, 4 months
prior to separation. It noted persistent pain including the right shoulder and scapular area. He
was noted to have spasm and tenderness of the cervical paraspinal muscles. Sensation,
strength and reflexes were normal. The ROM is above. At the first C&P exam on 9 November
2006, less than a month prior to separation, the CI reported constant 7/10 pain which improved
to 2/10 with medications. It was noted that he could not lift more than 50 pounds or engage in
jarring activities although he could jog ½ mile. Posture and gait were normal. The ROM was
reduced secondary to pain, but not further reduced with repetition although his pain was
increased. Sensation, strength and reflexes were normal. The neck was tender to palpation,
but without spasm. A second C&P was performed on 11 May 2007, 6 months after separation,
at the request of the CI for an increased disability rating. The CI reported continued pain and
that he had needed to leave work several times due to pain; he had been employed as a civil
engineer since separation. There had been no incapacitation though. The ROM is above and is
inconsistent with the other examinations. Sensation, strength and reflexes were normal.
DeLuca were negative other than increased pain. An MRI that day showed partial loss of
normal lordosis. There was degenerative disc disease (DDD) with protrusion at C5‐6 without
cord compression. The Board directs attention to its rating recommendation based on the
above evidence. It noted that the ROM was consistently reduced for right rotation prior to
separation, but that forward flexion was not reduced, other than on the two C&P examinations,
and that the second examination showed a dramatic reduction in motion without intervening
trauma to explain the further deterioration. The initial C&P examination is the most proximate
examination to separation and was performed within weeks of separation. It was therefore
assigned the highest probative value for rating purposes. 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 neck condition.
in evidence, with
Back Condition.
documentation of additional ratable criteria, which the Board weighed in arriving at its rating
recommendation; as summarized in the chart below.
There were three goniometric ROM evaluations
MEB ~5 Mo. Pre‐Sep
VA C&P ~1 Mo. Pre‐Sep
VA C&P ~6 Mo. Post‐Sep
+ Tenderness; spasm
+ Tenderness; painful motion
Neg DeLuca
The CI was placed on quarters for 24 hours on 3 January 2006 following the assault 3 days
earlier. As noted, this is the only documented placement on quarters. A 14 February 2006 PT
note documented normal ROM for the back. However, he was noted to have limited flexion
and extension at a second PT appointment 2 weeks later. At the MEB examination, the CI
reported recurrent LBP. The examiner noted limited ROM without documenting the actual
ROM values. The NARSUM documented persistent pain with bilateral lower extremity
numbness and tingling. He was noted to have spasm and tenderness of the paralumbar
muscles. Sensation, strength and reflexes were normal. Straight leg raise, a provocative test
for radicular irritability, was negative. The ROM values were obtained a month earlier in PT and
are above. At a follow‐up PT visit a week after the above ROM values, he was normal to have
normal motion of the back. At the C&P examination prior to separation, the CI reported achy
pain rated 4/10 several times a week which usually subsided over a few hours. Walking was
unlimited and lifting limited to 30 pounds (see different limitations for the neck). On
examination, he was noted to have normal gait and posture. Sensation, strength and reflexes
Thoracolumbar ROM
Degrees
Flexion (90 Normal)
Combined (240)
Comment
§4.71a Rating
55 (50, 55, 55)
205
20%
85
235
10%
60
200
20%
3 PD12‐00396
were normal. The ROM was above and pain noted at 7/10 for the measurements. At the
second C&P examination, the CI noted that he could not sit for long periods of time, stiffness
and the need to lie down for an hour after returning home from work. He denied
incapacitation. Sensation, strength and reflexes were normal on examination. The Board
directs attention to its rating recommendation based on the above evidence. As already noted,
the Board determined the C&P proximate to separation to have the highest probative value.
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 back 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 neck and back 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, therefore, recommends that there be no recharacterization of
the CI’s disability and separation determination, as follows:
UNFITTING CONDITION
VASRD CODE RATING
Chronic Neck Pain, Secondary to Herniated Nucleus Pulposus
Chronic Low Back Pain, Secondary to Herniated Nucleus Pulposus
5243
5243
COMBINED
10%
10%
20%
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120501, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
SFMR‐RB
XXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
4 PD12‐00396
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for
XXXXXXXXXXXXXXX, AR20120022692 (PD201200396)
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
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
5 PD12‐00396
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