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AF | PDBR | CY2012 | PD2012 01864
Original file (PD2012 01864.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201864
BRANCH OF SERVICE: Army  BOARD DATE: 20130417
SEPARATION DATE: 20020426


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (67S30/OH-58D Aircraft Technical Inspector) medically separated for chronic neck and lower back pain with degenerative disc disease (DDD) C5/C6 and C6/C7 condition. His initial symptoms began after digging a foxhole when he developed back pain. In January/February of 2000, he again developed significant neck pain. The chronic neck and lower back condition 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 U3L3 profile and referred for a Medical Evaluation Board (MEB). The chronic neck and lower back condition(s), characterized as medically unacceptable, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501 para 3-13d, 3-14. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated chronic neck and lower back condition(s) as unfitting rated 10% for pain. The CI made no appeals, and was medically separated.


CI CONTENTION: “The Medical Board rated two conditions as one. VASRD (4.71a-17) General Rating Formulas For Diseases and Injuries for The Spine, no 6, states: Separately evaluate disability of the Thoracolumbar and Cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. VA provided a correct rating of 10% under VA Code 5290 for the Cervical and under 5293 Degenerative Disc Disease L4-5, L5-S1 with HNP L5-S-1 and allowed a percentage of 20%. Both ratings were dated 4/27/2002. I believe the board erred in rating the two conditions as one. Also that the board neglected to follow DOD guidance as noted here: DoDI 1332.38, November 14. 1996, 34 ENCLOSURE 3 PART 4; When a disability is established as compensable, the disability shall be rated according to the VASRD as implemented by DoD Instruction 1332.39 (reference (i)) and federal law.”


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 lower back condition(s) is addressed below; and, 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 20020110
 VA - (~1 Mo. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Neck and Lower Back Pain with Degenerative Disc Disease C5/C6 and C6/C7 Condition 5099-5003 10% Degenerative Disc Disease of L5-S1 with HNP of L5-S1 5293 20% 20020411
Disc Bulging at C5-6 and C6-7 5290 10% 20020411
No Additional MEB/PEB Entries
 20020411
Combined: 10%
 Combined: 40%**
Derived from VA Rating Decision (VA RD ) dated 200 20617 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The PEB combined the back and neck condition as a single unfitting condition, coded analogously to 5003 and rated 10%. 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. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW applicable VASRD sections. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the reasonable requirement that each ‘unbundled’ condition was unfitting in and of itself or at least an indispensable element of a combined effect rating. Not uncommonly this 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. Thus, the Board must maintain the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Chronic Neck and Lower Back Pain. The CI‘s history revealed that he re-injured his back in 1999, while digging a hole. He was diagnosed with lumbo-sacral strain. In 2001, he developed intermittent upper back and neck pain. The CI was treated conservatively with unsustained improvement. February 2001, (approximately a year prior to separation), orthopedic consult recorded constant and moderate low back pain (LBP) radiating to right thigh. On examination, gait, motor, sensory, and reflex exams were all normal. Tenderness of the back was noted with full range-of-motion (ROM). Tests of nerve root involvement were all negative. The physician assessed DDD. Although, the CI reported back spasms and radicular symptoms, there were no documented report of quarters ordered and no incapacitating episodes in the treatment record. An anesthesia/pain consult, 20 April 2001, a year prior to separation, noted pain was reported for low back, upper back and upper right thigh, without numbness and tingling sensation. On physical examination, there was full ROM, and no evidence of neuromuscular, neurological or sensory deficits. There was pain on palpation and with straight leg raise (SLR). He could heel toe walk without problems. Chronic LBP with DDD was diagnosed. Of note, entries in the treatment records recorded primarily report of back pain as predominant treatment focus. There was no evidence in the record of an isolated cervical treatment plan. A treatment plan progress noted dated 24 July 2001; approximately 9 months prior to separation assess chronic LBP without mention of neck pain. The CI underwent several consultations to include anesthesia/pain management, orthopedic surgery and physical therapy; he was deemed not to be a surgical candidate. Magnetic resonance imaging (MRI) (15 months prior to separation) demonstrated moderate DDD at L4-5 with probable symptomatic disc and moderate DDD at L5-S2 with herniation. Cervical spine MRI, 1 May 2001, 11 months prior to separation, noted minimal disc bulging at C5-6 and C6-7; no herniation or cord compression seen. The CI’s profile listed cervical and lumbar pain with limitation of no back pack, no low back exercises, and no flak vest and no jumping. The profile allowed running at own pace and distance and allowed for gym physical therapy. The commander statement (CS), 16 October 2001, 5 months prior to separation stated that “The soldier’s most recent duty performance is top notch regardless of his current profile. He is able to adequately perform the duties normally expected of an individual of the same rank.” The commander opined the CI could accomplish the physical requirement for soldiers as mandated but his restrictions prevented that. On MEB/narrative summary (NARSUM) evaluation, 4 December 2001, 4 months prior to separation, the CI focused on his back pain which he noted to be persistent, midline pain as well as some right hip and thigh discomfort, which waxed and wane on a daily basis. Additionally, the CI reported episodes of severe back spasm for which he is unable to get out of bed for approximately 24-48 hours. Physical examination recorded neck with full ROM and no midline spinal tenderness or spasms. The back was non tender, and minimal muscle spasm was noted. No ROM recorded for the back. Motor and neurological exams were normal, and no evidence of nerve root irritation. Straight leg raising (SLR) did not elicit any discomfort. Gait was not recorded. At the VA Compensation and Pension (C&P) evaluation, 11 April 2002, 2 weeks prior to separation, the examiner recorded decreased ROM of cervical spine with extension of 0-10 degrees, flexion 0-45, bilateral turning 0-40 and tilting 0-35 degrees. Pain noted throughout maneuvers. Lumbar spine examination revealed flexion of 70, hyperextension of 10 and bilateral lateral of 20 degrees. Again, tenderness noted through all maneuvers in the mid portion and lumbar spine. Gait was not recorded. The examiner assessed moderate physical impairment.

The Board directs attention to its rating recommendation based on the above evidence. The PEB combined the conditions, rated analogously using the 5003 code (Degenerative arthritis) at 10% for neck and back pain with no focal neurological deficits. The VA coded the conditions separately and assigned a rating of 20% for the back condition under code 5293 (Intervertebral disc syndrome), based on reduced ROM, with citation of recurring attacks of moderate intervertebral disc syndrome, and the neck at 10% under 5292. The Board then undertook to unbundled the back condition. The record in evidence reasonably support that both conditions were unfitting and should be rated separately. The Board then undertook to rate the lumbar spine. In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation. Applicable diagnostic codes for rating the back include: 5003 (Degenerative arthritis), 5292 (limitation of lumbar spine motion); 5293 (Intervertebral disc syndrome), and 5295 (lumbosacral strain). The higher rating of 20% under 5003 and 5295 codes requires incapacitating episodes. There was no documented evidence of back spasms causing functional impairment that would support a higher rating under either code. Under the 5293 code at the time of separation, a 20% rating required recurring attacks involving peripheral nerve impairment and spasms, which was not supported by the evidence at hand. The Board next considered the 5292 code, limitation of motion and noted the lumbar ROM recorded at the C&P represented a slight degree of impairment (70 degrees), supporting a 10% rating but could not support the higher rating of 20% under this code. There is no VARSD sanctioned pathway to a rating higher than the minimal compensable rating under any appropriate code. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the back pain condition. The Board then proceeded to the rating of the neck condition. There was one goniometric ROM evaluation in evidence which the Board weighed in arriving at its rating recommendation. The C&P examination recorded a reduced cervical ROM and determined the reduction to be “slight”. This finding was inconsistent with the ROM recorded at the NARSUM and treatment records are silent for cervical condition. The Board considered rating code option 5290 and determined the preponderance of evidence did not support a rating under this code. There was no recorded limitation in ROM in any of the treatment records before separation. Additionally, there was no evidence of ratable peripheral neuropathy, no objective findings of painful motion, or spasms to support the use of any other VARSD applicable code. The Board further noted the application of VASRD §4.59, painful motion was not supported by the evidence. Thereupon, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% for the neck pain condition. The Board unanimously agreed that the unbundling was of no rating benefit to the CI and thus, recommends no recharacterization.

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. As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating back/neck condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the back/neck condition 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 Back/Neck pain 5299-5003 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121023, 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 AR20130009562 (PD201201864)

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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