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AF | PDBR | CY2013 | PD-2013-02152

Original file (PD-2013-02152.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX CASE: PD-2013-02152
BRANCH OF SERVICE: Army BOARD DATE: 20150807

SEPARATION DATE: 20050215

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserve O-3 (Adjutant General) medically separated for lumbar and cervical conditions. The lumbar and cervical conditions could not be adequately rehabilitated to meet the physical requirements of her Army Branch and Area of Concentration (AOC) or satisfy physical fitness standards. Her profile allowed for an alternate aerobic event to satisfy physical fitness standards. She was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB). “Non-radicular low back pain” and “cervical neck pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded four medically acceptable conditions (asthma, left shoulder repair, left knee meniscus repair, and mitral valve prolapse) for PEB adjudication. The Informal PEB adjudicated her cervical and lumbar conditions as unfitting, rated 10% each, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting . The CI requested continuance on active duty, but her request was denied and she was medically separated.

CI CONTENTION: The CI requests the Board consider all conditions. Her complete submission is at Exhibit A.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON :

IPEB – Dated 20040701	VA*(~4 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Subjective Low Back Pain…	5299-5237	10%	Chronic Lumbosacral Strain	5237	20%	20050623
Chronic Neck Pain…	5299-5237	10%	Recurrent Cervical Strain	5237	10%	20050623
Other MEB/PEB Conditions x 4 (Not In Scope)	Other x 5
COMBINED RATING: 20%	COMBINED RATING: 30%

* Derived from VA Rating Decision (VA RD ) dated 200 51213 (most proximate to date of separation [ DOS ] ) .

ANALYSIS SUMMARY:

Lumbar. The service treatment record (STR) corroborated the history in the narrative summary (NARSUM) of an onset of back pain with a vehicular accident in November 2000. The first STR treatment notes in evidence commenced in 2003. The pain was associated with bilateral radicular symptoms; but, multiple neurologic examinations are normal, and electrodiagnostic testing (EMG) was normal. Magnetic resonance imaging (MRI) demonstrated “minimal” disc protrusions without significant neural compromise (L3 to S1); and, orthopedics opined that there were no surgical indications. There are various STR entries documenting normal gait and grossly normal range-of-motion (ROM), but occasional note of gait disturbance and/or ROM limitation. There is no STR documentation of abnormal neurologic findings, severe or consistent gait or ROM disturbance, abnormal spinal contour, or periods of incapacitation.

The NARSUM was conducted 23 April 2004 (10 months prior to separation), and documented back pain “present 100% of the time ... limiting her ability to lift heavy objects or carry a rucksack.” There was no mention of radicular symptoms. The NARSUM physical examination did not comment on gait or spasm, and recorded normal neurological findings (strength, reflexes, and sensation). The measured ROM is charted below. There is an addendum to the NARSUM dated 13 July 2004 (7 months prior to separation) which documents constant pain rated 3-10/10 with radicular symptoms “left greater than right” and “exacerbated by prolonged sitting and standing.” The exam documents a normal gait and normal neurologic findings (5/5 strength), and provided the normal measured ROM charted below without specifying the presence or absence of painful motion.

A VA Compensation and Pension (C&P) examination was conducted 23 June 2005 (4 months post-separation), and there was no documentation of interim injury or other exacerbation of the condition. The examiner documented constant pain rated 3/10 exacerbated by “standing more than 20 minutes, twisting, turning, bending or lifting more than 30 pounds, sitting more than 30 minutes, walking more than two miles, riding or driving in a car more than 45 minutes.” The examiner specifically documented “no lower extremity radicular symptoms.” The VA physical examination recorded a normal gait, tenderness, the absence of spasm, and normal neurologic findings (5/5). The VA measured ROM is charted below.

The ROM evaluations referenced above, which the Board weighed in arriving at its rating recommendation, are summarized in the chart below.

Thoracolumbar ROM	NARSUM ~10 Mo. Pre-Sep	NARSUM Addendum ~7 Mo. Pre-Sep	VA C&P 4 Mo. Post-Sep
Flexion (90⁰ Normal)	90⁰	90⁰	60⁰
Combined (240⁰)	230⁰	240⁰	205⁰
§4.71a Rating	10%	0%*	20%

* Unless conceding painful motion for 1 0%.

The Board directed attention to its rating recommendation based on the above evidence. The PEB’s 10% rating analogous to 5237 (lumbosacral or cervical strain) was consistent with VASRD §4.71a criteria for the MEB findings and ROM in evidence. The VA’s rating under the same code was premised on the C&P flexion to 60 degrees which just meets the §4.71a 20% threshold. There is a disparity between the MEB and C&P exams with obvious implications for the Board's rating recommendation. The Board deliberated the probative value of these conflicting evaluations, with review of the overall evidence for corroboration. All available STR evidence during the MEB period indicated grossly normal (or nearly so) ROM, corroborating the two measured ROM evaluations by the Service as charted above. There is no ready explanation for a deterioration of ROM in the relatively short interval between separation and the VA rating examination. The significant limitation of flexion by VA measurement was confined to that single plane of motion, and was not associated with the presence of spasm which would generally accompany that degree of ROM limitation. Members thus agreed that this isolated measurement of flexion by the VA was not sufficiently probative to support a 20% recommendation. There was no evidence for abnormal gait or contour to support a 20% rating; no evidence for ratable peripheral nerve impairment which would provide for additional rating; and, no documentation of incapacitating episodes which would provide for a higher rating under that formula. 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 of the lumbar condition.

Cervical. There is a paucity of STR evidence probative to the cervical spine condition. There was an onset of neck pain, current with the back pain, from the same 2003 vehicular accident. There were no complaints of upper extremity radicular symptoms. The treatment notes for the lumbar condition also noted the cervical complaint, and several neurologic examinations documented normal upper findings along with the normal lower findings. There are no gross ROM observations for the cervical spine noted in outpatient notes, although there are none suggesting ROM limitation. The initial temporary profiles were for the back only, and the cervical U3 profile was not added until the MEB. A cervical MRI did not yield any significant findings (minimal left C7-T1 neuroforaminal narrowing without disc disease). There was no STR documentation of abnormal cervical curvature or periods of incapacitation for the cervical condition. The NARSUM stated that the neck pain was “present 40% of the time” and implicated only the inability to tolerate Kevlar as a limitation. The NARSUM physical examination recorded cervical tenderness and normal neurologic findings. The NARSUM ROM measurements were 45 degrees flexion (normal) and combined ROM of 310 degrees (normal 340). The NARSUM addendum referenced for the lumbar condition did not address the cervical condition.

The VA C&P after separation (same as referenced for the lumbar condition) did not quantify baseline neck pain, but noted “flare-ups ... one to two times per week ... last between one and two hours” which were “associated with standing more than 20 minutes, driving more than an hour and sit ups.” The VA physical exam noted cervical tenderness without comment regarding spasm or curvature. The VA ROM measurements were flexion to 45 degrees and combined ROM of 340 degrees, noting “discomfort only at extremes.”

The Board directed attention to its rating recommendation based on the above evidence. The PEB’s 10% rating under 5237 was compliant with VASRD §4.71a criteria for the combined ROM submitted by the MEB. The VA’s 10% rating invoked functional loss, as the C&P ROM was not compensable. There was no evidence of abnormal spinal contour to achieve a higher rating, no evidence of peripheral nerve impairment, and no documentation of incapacitating episodes. There is no §4.71a compliant route to a rating higher than 10% in this case. After due deliberation and considering all evidence with deference to reasonable doubt, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the cervical 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 lumbar condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the cervical 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131031, w/atchs
Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXX, AR20150013358 (PD201302152)

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              XXXXXXXXXXXXXXX
                           Deputy Assistant Secretary of the Army
                           (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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AF | PDBR | CY2013 | PD-2013-02152

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