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AF | PDBR | CY2013 | PD-2013-02323
Original file (PD-2013-02323.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02323
BRANCH OF SERVICE: Army  BOARD DATE: 20141113
SEPARATION DATE: 20041030


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard CPL/E-4 (31B/Military Police) medically separated for low back pain (LBP) and neck pain. The conditions 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 U3/L3 profile and referred for a Medical Evaluation Board (MEB). The LBP and neck pain, characterized as “slight/frequent, secondary to lumbar strain” and “slight/frequent, secondary to degenerative changes and herniated disc” respectively, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “chronic subjective back pain, without neurologic abnormality” and “chronic neck pain with C6-7 herniated nucleus pulposus, without neurologic abnormality” as unfitting, rated at 10% and 10% respectively with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “1. Cervical condition 10% disabling. 2. Low Back Condition 10% disabling”


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 low back pain and neck pain conditions are 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 :

IPEB – Dated 20040727
 VA - (4.5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Subjective Back Pain, Without Neurologic Abnormality 5237 10% Thoracolumbar Degenerative Disc Disease T12-Ll, L2-L3,
Lumbosacral Myositis, Bulging Disc L2-L3 Level, Degenerative Joint Disease L2-L4 And T12		 5243 20% 20050329
Chronic Neck Pain With C6-7 Herniated Nucleus Pulposus, Without Neurologic Abnormality 5243 10% Cervical Disc Herniation C3-C4, C4-C5, C5-C6, C6-C7; Cervical
Myositis		 5243 20% 20050329
Other x 0 (Not in Scope)
 Other x 4 20050119
Combined: 20%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 50808 (most proximate to date of separation )



ANALYSIS SUMMARY:

Low Back Pain Condition: The narrative summary (NARSUM) notes the CI had a long history of episodic LBP aggravated in 2003 while moving supplies for his unit. The CI was initially treated with medications, but his pain was progressive to the point of not being able to perform his full duties. The CI was medically evacuated from theater in December 2003. Notes in the service treatment record (STR) indicated that thoracolumbar (TL) spine imaging including radiographs and magnetic resonance imaging (MRI) showed degenerative changes without frank disc herniation, spinal stenosis or nerve impingement. Thoracic spine X-rays were normal, but the lumbar MRI noted a mild T12 wedge compression fracture. A bone density study performed on 10 February 2004 noted osteoarthritis of the lumbar spine, but no osteoporosis. A note in the STR indicated “EMG/NCS-no evidence of radiculopathy.” Despite physical therapy and daily medications, the LBP continued.

At the MEB examination performed on 27 May 2004 (approximately 5 months prior to separation), the CI reported back pain. The MEB physical exam noted a normal gait with no tenderness to palpation (TTP) and TL range-of-motion (ROM) of flexion 0 - 75 degrees with pain (normal 0 - 90 degrees), and combined ROM of 225 degrees (normal 240 degrees). Lower extremity strength, sensation and reflexes were normal, with negative straight leg raise testing bilaterally.

At the VA Compensation and Pension (C&P) general examination performed on 19 January 2005 (approximately 3 months after separation), the CI reported back pain. The examination noted normal gait and posture. TL ROM was flexion of 70 degrees with pain and combined ROM of 200 degrees, with normal muscle tone, sensation, and reflexes noted. A VA C&P spine examination on 29 March 2005 (approximately 5 months after separation), noted mild TL tenderness and muscle spasm, but normal posture and gait. TL ROM was flexion 0 - 60 degrees and combined ROM of 210 degrees. Lower extremity strength, sensation and reflexes were normal, with negative straight leg raise testing bilaterally. The examiner noted “no medical certificate issued for strict bed rest.” With regard to the discrepancy between the lower back imaging studies, the examiner commented that “the study of choice for compression fractures are plain X-rays, which in this case are negative for fracture but positive for DJD [degenerative joint disease].”

At VA physical therapy (PT) visits from April to mid-May 2005 the CI was noted to have pain levels rated 2/10 to 3/10 following treatment, with significant relief from anti-inflammatory medication.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, coded 5237 (lumbosacral strain) and the VA rated it 20%, coded 5243 (intervertebral disc syndrome) based upon ROM. The Board considered that the TL ROM for flexion was significantly greater than 60 degrees at the MEB examination and the VA General C&P examinations and at the VA Spine C&P examination was 60 degrees. Combined TL ROM at all three examinations was consistent with the 10% rating, and there was no evidence of muscle spasm or guarding severe enough to cause an abnormal gait or spinal contour. The Board agreed that the totality of the evidence in record supports the 10% rating at the time of separation according to current VASRD spine rating guidelines in effect. The Board noted there was no evidence in record of incapacitating episodes or peripheral nerve impairment due to the back condition to provide for higher or additional disability rating. 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.

Neck Pain Condition: The NARSUM notes the CI injured his neck in 2003 while moving supplies for his unit. As noted above, the CI was initially treated with medications, but the pain continued. He was unable to perform all the duties of his MOS and was medically evacuated from theater in December 2003. Cervical spine MRI on 20 January 2005 noted lower cervical spine disc herniation with spinal stenosis and general degenerative disc disease. As noted above, a note in the STR indicated “EMG/NCS-no evidence of radiculopathy.” Notes in the STR near the date of separation noted continued neck pain with intact ROM and normal strength and sensation.

At the MEB examination on 27 May 2004, (approximately 5 months prior to separation) the CI reported neck pain. The MEB physical exam noted cervical spine ROM of flexion 0 - 40 degrees (normal 0 - 45 degrees) and combined ROM of 305 degrees (normal 340 degrees), with normal strength.

At the VA C&P general examination (performed 3 months after separation), the CI reported neck pain. The examination showed cervical spine flexion ROM of 25 degrees with pain, with normal sensation and reflexes. At the VA C&P spine examination (approximately 5 months after separation), the examiner noted TTP and mild muscle spasm that did not cause an abnormal spinal contour. Cervical spine ROM was flexion of 0 - 30 degrees, with combined ROM of 325 degrees, with no additional loss of motion with repetitive use. Upper extremity strength, sensation, and reflexes were normal. The examiner noted “no medical certificate issued for strict bed rest.”

At VA PT visits from April to mid-May 2005 the CI was noted to have pain levels of 2/10 to 3/10 following treatment, with significant relief from anti-inflammatory medication.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the neck condition 10% and the VA rated it 20%, both coded 5243 (intervertebral disc syndrome). The Board majority opined that the totality of the evidence in record supports the 10% rating according to current VASRD spine rating guidelines in effect at the time of separation. The Board noted there was no evidence of incapacitating episodes, or peripheral nerve impairment due to the neck condition to provide for higher or additional disability rating of the neck condition. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the neck 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 chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the chronic neck pain condition, by a majority vote, the Board recommends no change in the PEB adjudication of the neck condition. The single voter for dissent submitted the appended minority opinion. 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 20131104, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review
Minority Opinion: The minority voter carefully considered the majority opinion that evidence in the STR and at the MEB examination supported a 10% rating based on ROM for the neck condition. However, post-separation VA ROM evidence from the C&P General and Spine examinations, approximately 3 and 5 months after separation respectively, lend strong support for the minority 20% rating. The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. It is the minority voter’s opinion that discounting proximate VA examinations requires a rationale and may be appropriate in some cases. In this case there was not an apparent reason to assign less probative value to the examinations.

•        
The first C&P examination was the most proximate examination to the date of separation.
•        
There was no intervening exacerbation of the neck condition noted.
•        
There was no evidence at either C&P examination that the CI was exaggerating his symptoms or uncooperative to examination.
•         The C&P examiners, but not the MEB examiner, indicated that repetitive ROM had been performed in determining the cervical ROM (increases the reliability of the ROM).
The minority voter concedes that the evidence in record supports that the CI had variable symptoms. He reported “pain is variable day to day” at a Physical Medicine consultation on 28 January 2005 (between the two C&P exams), which did note “cervical ROM full” (without number of degrees noted), but also noted use of anti-inflammatory medication, muscle relaxants, and occasional use of pain medication. However, the minority voter finds that this is insufficient grounds to assign less probative weight to the evidence at the C&P examinations. IAW VASRD §4.3 (reasonable doubt), the totality of evidence in record supports the 20% rating.

In summary, the following minority recommendation is respectfully submitted for the consideration:

The MO recommends the applicant’s prior determination be modified as follows; and, that the discharge be recharacterized to reflect permanent disability retirement, effective the date of his medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Low Back Pain
 5237 10%
Neck Degenerative Disc Disease
 5243 20%
COMBINED 30%


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 XXXXXXXXXXXXXXXXX, AR20150006481 (PD201302323)


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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA


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