RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1200208 SEPARATION DATE: 20040120

BOARD DATE: 20121022

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an mobilized (on active duty) Army Reserve SSG/E-6 (77F30/Petroleum Supply Specialist), medically separated for chronic low back and neck pain conditions [1) chronic low back pain (LBP), without neurologic abnormality or documented chronic paravertebral muscle spasms on repeated examinations, with characteristic pain on motion and 2) chronic neck pain, rated as minimal/frequent]. Despite aggressive Physical Therapy, Neurosurgery consults and medications the CI failed to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded chronic LBP and chronic neck pain on the DA Form 3947 to the Informal Physical Evaluation Board (IPEB). The MEB forwarded no other conditions for IPEB adjudication. The CI non-concurred with the MEB and diagnosed her conditions as 1) chronic LBP; 2) chronic neck pain; 3) chronic pain in lower extremities; and 4) chronic pain in left knee. The IPEB adjudicated her chronic low back pain and chronic neck pain conditions as unfitting, rated 10% and 0% respectively, citing application of the Department of Defense Instruction (DoDI) 1332.39 and AR 635-40 (chronic LBP); and the US Army Physical Disability Agency (USAPDA) pain policy (chronic neck pain). The CI demanded a Formal PEB (FPEB) then filed a non-concurrence, however, waived the FPEB. The USAPDA affirmed the IPEB’s findings. The CI filed a second non-concurrence and the IPEB reaffirmed the earlier findings. The CI was then medically separated with a combined 10% disability rating.

CI CONTENTION: In Item 3, the CI states “I was involved in a line-of-duty car accident which started a lot of my physical conditions and complaints.” In Item 4, she entered “See attached medical nexus.” The packet is absent page 2 of the application.

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. These conditions are chronic LBP and chronic neck pain. 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:

* VARD 20050629 increased cervical sprain to 10% effective 20040121 (based on VA treatment notes); combined total of 20%.

** VARD 20100106 increased lumbar spine to 20% effective 20090620 (based on later exam) for a combined total of 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. However the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Spine Conditions. The 2003 Veteran’s Administration Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of initial evaluations and initial PEB determination, were changed to the current §4.71a rating standards on 26 September 2003. The new VASRD spine criteria were in effect for final separation rating determination as the CI’s date of separation was 20 January 2004. The criteria for rating diseases and injuries of the spine apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

There were three 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. It is incongruent for the Board to assign a higher probative value to one exam in its rating recommendation for one of the conditions and then assign a higher probative value to a different exam for the other condition, so both the cervical and thoracolumbar exams are summarized in a single chart.

Chronic LBP Condition: See exam chart summary above. The MEB examination 7 months prior to separation indicated frequent LBP along with “some left leg pain.” An electromyelogram (EMG) performed in December 2003 demonstrated findings consistent with an L4 radiculopathy (normal sensory and motor nerve conduction, needle EMG “evidence of denervation in left lower and mid lumbars as well as vastus lateralis and anterior tibialis”). There were no incapacitating periods (bed rest and treatment prescribed by a physician) documented.

The VA Compensation & Pension (C&P) examination performed 4 months after separation noted back pain radiation down the left leg to shin. The C&P Neurology examination performed 2 days later indicated low back pain that radiated down to her ankles and static pain to her ankles and exacerbated on walking.

The 2003 Veterans Administration Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of initial evaluations, were changed to the current §4.71a rating standards on 26 September 2003. The new VASRD spine criteria were in effect for final separation rating. The 2003 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM.

The Board directs attention to its rating recommendation based on the above evidence using the VASRD in effect at the date of separation. The PEB coded the chronic LBP as 5299 analogous to 5295, Lumbosacral strain: With characteristic pain on motion rated 10% (5295 was from the 2003 VASRD, and has since been removed). The VA coded the degenerative changes lumbar spine L5-S1 with disc bulge L4-L5 with L4 radiculopathy condition as 5243, intervertebral disc syndrome rated 10%. The VA rating conceded functional loss and pain on use. The preponderance of exams rated a 10% under both the old and new VASRD Spine Rules. Most exams demonstrated pain on motion. However, as the 5295 code was not in the VASRD effective the CI’s date of separation, the Board recommends an administrative correction to VASRD code 5243 at 10%. 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’s 10% adjudication for the chronic LBP condition, but recommends a modification to code 5243.

Chronic Neck Pain condition: See exam chart summary above. The MEB examination indicated pulling pain in the neck on rotation. The C&P examination noted cervical radiculitis and a cervical extension 5 degrees below the VA normal. C&P Neurology examination indicated pain in the low occipital region down to the cervical region and left shoulder; myofascial spasm on X-rays. A VA treatment note indicated full ROM with continued neck pain, intermittent upper extremity tingling and worsened pain with lifting or “pressure on the occiput.” Motor and neurologic exams were normal.

The PEB coded the chronic neck pain condition 5099 analogous to 5003 Arthritis, degenerative (hypertrophic or osteoarthritis) rated 0%. The VA coded the cervical sprain with disc bulges C3-C4, C4-C5, and C5-C6 condition at 0% with a later increased rating to 10% based on treatment notes 11 months after separation and conceding painful motion and functional loss. There was evidence from multiple exams of cervical radiculitis and tenderness. The Board deliberated if the service exam’s (highest probative value exam for lumbar rating above) statement of “pulling” sensation on rotation, coupled with the lack of 5⁰ on extension on the VA general exam and the cervical tenderness at the VA neurologic exam met the 10% criteria. The Board considered VASRD §4.59 (painful motion), §4.40 (functional loss), 5243 “localized tenderness” and/or “combined range-of-motion of the cervical spine not greater than 335⁰” although these findings were not found in all exams.

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 cervical spine condition and coding under 5243 IAW VASRD §4.71a.

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 for rating chronic neck pain and DoDI 1332.39 and AR 635-40 for rating chronic LBP was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s 10% rating, but a code change to 5243. In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §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 her prior medical separation:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120228, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for XXXXXXXXXXXXXXXXX, AR20120019893 (PD201200208)

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 XXXXXXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA