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AF | PDBR | CY2012 | PD2012 01526
Original file (PD2012 01526.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201526
BRANCH OF SERVICE: Army  BOARD DATE: 20130409
SEPARATION DATE: 20030428


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SPC/E-4 (88M/Motor Transport Operator) medically separated for chronic neck and back conditions. The CI fell and injured his neck and back while taking an Army Physical Fitness Test in April 2000. He was unable to be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The chronic neck and low back conditions, characterized as “cervical spondylosis” and “lumbar spondylosis” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB (IPEB) combined the conditions and adjudicated them as a single condition “chronic pain in neck and low back” with likely application of the US Army Physical Disability Agency pain policy. There were no additional conditions. The CI initially decided to appeal to the Formal PEB but then withdrew his request. He was then medically separated with a 0% disability rating.


CI’s CONTENTION: “Spinal condition, TBI, hearing loss, sciatica, nerve damage (left hip).”


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 chronic neck and back condition is 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 Army Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20030211
 VA - (8 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Pain in Neck and Low Back 5099-5003 0% Cervical Spine Injury 5237 NSC 20041207
Back Condition 5237 NSC 20041207
No Additional MEB/PEB Entries
 Other x 1 20041207
Combined: 0%
 Combined: 10%
Derived from VA Rating Decision (VA RD ) dated 200 50107 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: It is noted for the record that the Board is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation. The VA, however, is empowered to compensate for service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the veteran’s disability rating should the degree of impairment change over time.
Chronic neck and back pain. The CI fell and injured himself while taking an AFPT in April 2000. After the accident, the CI had pain in the neck and back. Magnetic resonance imaging (MRI) of the neck showed a small lateral disc protrusion at C2-C3. Lumbar spine MRI showed very mild degenerative disc disease. Since he was not able to fully perform his military duties, an MEB was initiated. The MEB narrative summary dictated on 3 October 2002. At that time, the CI was taking Percodan, Celebrex, Tylenol #3, Motrin, and Flexeril. He walked with an abnormal gait. Cervical range-of-motion (ROM) was full, with minimal pain at the extremes. Muscle strength and deep tendon reflexes (DTRs) in the upper extremities were normal. The lower extremity exam showed a negative straight leg raise, normal sensory exam, and normal DTRs. There was some “give away” weakness in all motor groups of the left leg. Lumbar ROM was not documented by the examiner. As noted above, the CI was medically separated from the Army in April 2003 due to chronic neck and back pain.

Twenty months later, he had a VA Compensation and Pension exam. The CI reported left hip pain, but made no reference to the neck and back injury of April 2000. He denied any limitation of performance of activities of daily living. He was refereeing football and wrestling, three times a week. He would walk about two miles, and jog half a mile, on alternate days, five times a week. The physical exam was essentially non-contributory. His gait was non-antalgic, and he was in no apparent distress. Neurological exam was normal.

The Board carefully reviewed all evidentiary information available, and directs attention to its rating recommendation based on the above evidence. The PEB combined the CI’s two chronic pain problems into a single unfitting condition characterized as: “chronic pain in neck and low back following a fall.” The condition was coded 5099-5003 (analogous to degenerative arthritis) and rated at 0%. The Board evaluated whether or not it was appropriate for the two chronic pain problems to be “bundled” together.” The Board must determine if the PEB’s approach of combining the conditions under a single rating was justified in lieu of separate ratings. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the Veterans Affairs Schedule for Rating Disabilities (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 did not support a conclusion that each of the chronic pain conditions, separately, would have rendered the CI unable to perform his required military duties. Accordingly, the Board does not recommend a separate disability rating for the two chronic pain problems. It is appropriate for the cervical pain and the lumbar pain to be “bundled” together, and treated as a single unfitting condition.

The VASRD coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were changed in September 2003. The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment. IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation. Based on the evidence in the treatment record, the Board unanimously agreed that the CI’s chronic pain condition was best described as “slight.” There was insufficient evidence in the treatment record to support classifying the condition as “moderate” or “severe.” He appeared to have full cervical ROM, with minimal pain at the extremes. Lumbar ROM was not documented.

After due deliberation, the Board concluded that a separate disability rating of 10% was warranted, due to painful cervical motion. The Board tried to find a path to a rating higher than 10%, using other codes which could be applied to the chronic pain condition. The other VASRD codes that were considered did not result in a rating higher than 10%, since the treatment record did not show sufficient evidence of a significantly disabling abnormality which would justify a rating higher than 10%. Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 10% for the chronic pain condition. It is appropriately coded 5099-5003, and IAW VASRD §4.40, §4.45, §4.59, and §4.71a; meets criteria for the 10% rating level.

The Board also considered the matter of peripheral neuropathy. After reviewing all the clinical information regarding the radicular findings, there was insufficient evidence of a clinically significant neuropathy that interfered with satisfactory performance of military duties. Therefore, 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 that radiculopathy be considered an unfitting condition at the time of separation from service.


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. In the matter of the chronic pain in neck and low back, the Board unanimously recommends a disability rating of 10%, coded 5099-5003, IAW VASRD §4.40, §4.45, §4.59, and §4.71a. 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
Chronic pain in neck and low back 5099-5003 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 201205, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130009588 (PD201201526)
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 10% 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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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