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AF | PDBR | CY2013 | PD-2013-02517
Original file (PD-2013-02517.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02517
BRANCH OF SERVICE: Army  BOARD DATE: 20141001
SEPARATION DATE: 20060102


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (13B2O/Field Artillery Crewman) medically separated for neck and bilateral foot conditions. These 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). Cervical spine fracture status post (s/p) fusion C5-C7; hypermobile first ray bilateral; recurrent metatarsal spur bilateral and neuralgia, right foot greater than left conditions, characterized as not meeting retention standards, 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 neck pain, s/p for C5-7 fusions as unfitting, rated 10%, with presumed application of the VA Schedule for Rating Disabilities (VASRD). The chronic bilateral foot pain, with hypermobile first ray was adjudicated as unfitting, rated 0%, with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: “Due to my injury I (sic) suffer from severe pain in my cervical and thoracic area right and left side. Severe Hypertension, Diagnosed Sleep Apnea within 1st year of cervical fusion. Long time depression as result of living this way. Struggle with memory loss, hearing loss, loss of focus and ability to concentrate and pay attention. Increasingly difficult to deal with stress. (continued) Due to my injury I suffer cervical and thoracic area right and left side. I have metal in the front and back of my cervical spine and two long screws in my pedical bones on both sides. There are so many things I can no longer do as result of continues and brutal pain I live with everyday. I have a 3-month old baby girl that I can't hold for more than 3-to-4 minutes at a time, and 8-year old son who would kill for his dad to go out and play ball with him but I just can't. The pain has become so severe that I am terrified and will not be able to provide for my family with in the next several years. I have most recently had the spinal cord stimulator implanted on my spine (its not working unfortunately though I was very optimistic). I have had epidural steroid injections at least five times as well as Radio Frequency Ablation once, Nerve Root Bocks and Cervical Laser ablation. Since day one of the first Surgery at Ft. Hood Texas, I have suffered from extreme Hypertension. Due (sic) to pain it has become higher than ever and harder to control. Due to the pain it is almost impossible for me to sleep. I stay exhausted all day as my sleep is constantly interrupted all through out the night from pain. All of these things together cause obvious depression. I was unable to complete my Masters Degree because I am just unable to concentrate. My memory is worse everyday. None of the surgeries I have endured have ever helped and the pain continues to get worse. I can feel the weakness slowly increasing and my neck and upper back and those areas are more and more stiff and in indescribable pain. It is a seemingly very hopeless situation. I truly feel I was used up and thrown away like a piece of garbage.”


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 neck and bilateral foot conditions are addressed below. The contended thoracic spine, hypertension, sleep apnea, memory loss, hearing loss, concentration, attention focus and stress conditions were not identified by the MEB or PEB; and are not within the DoDI 6040.44 defined purview of the Board. Those, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20051201 VA* - (1.4 Mos. Post-Separation)
Condition Code Rating Condition Code Rating Exam
Chronic Neck Pain… 5241 10% S/P Cervical Spine Fusion…C5,6,7 5241 30% 20060508
Chronic Bilateral Foot Pain… 5099-5003 0% S/P Metatarsal Spur…Left Foot 5284 10% 20060508
S/P Metatarsal Spur…Right Foot 5284 10% 20060508
Other x 0 (Not in Scope) Other x 11 (Not in Scope) 20060508
Combined: 10% Combined: 80%
*Derived from VA Rating Decision (VARD) dated 20060508 (most proxima te to date of separation (DOS))


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.

Chronic Neck Condition. The CI is left hand dominant. The service treatment record indicated that while deployed, the CI sought medical treatment for upper back and right shoulder blade pain for a one-year duration after lifting a heavy duffle bag over his head. Summary documents indicated a failure to achieve pain relief with prior physical therapy, rehabilitation, injections and manipulations. A complete neurology work-up diagnosed the CI with myofascial pain syndrome and a recommendation for medical evacuation from the deployed theater for further evaluation. Radiology revealed multi-level cervical spine disc protrusion (C5-7) with single level nerve compression. Electro-diagnostic studies noted a right-sided C5-6 radiculopathy. He underwent an anterior cervical spinal fusion on 16 November 2004. Post-operative pain relief lasted 5 weeks. Further X-rays revealed two separate fractures within the prior surgically placed bone graph and subsequently he underwent a second surgery for a fusion revision on 11 August 2005. Follow-up orthopedic evaluation on 5 October 2005 noted resolution of left arm pain although pain persisted in between the shoulder blades. His diagnosis was “continued neck pain, neurologically intact.” At the MEB narrative summary (NARSUM) examination completed on 3 October 2005, 3 months prior to separation, the CI endorsed neck and shoulder pain. He noted an inability to run, ruck, or perform sit-ups or pushups. The physical examination (PE) was brief and revealed posterior neck spasms. Motor, sensory, and reflexes to the upper extremities were normal. There was no comment in regards to limited or painful motion. His pain was listed (according to American Medical Association guides) as “moderate” and “frequent.”

At the VA Compensation and Pension (C&P) examination (14 February 2006; 6 weeks after-separation), the CI reported constant neck and left upper back pain (8/10 pain scale) characterized as aching, oppressive, sharp, sticking, cramping, and spastic in nature and associated with numbness and tingling. “The pain can be elicited by physical activity, stress, and just waking up each day.” “He endorsed the inability to do most physical things such as carry a heavy load or anything that carries the risk of falling.” The PE revealed a normal gait and normal posture. There was tenderness at the lower posterior neck, spasms about and between both shoulder blades, and decreased range-of-motion (ROM).
The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

DOS 20060102
Cervical ROM
(Degrees)		 PT 3.5 Mo. Pre-Sep
(20050919)
VA C&P 6 weeks Post-Sep
(20060214)
Flexion (45 Normal) 10 10
Extension (45) 10 15
R Lat Flexion (45) 25 45
L Lat Flexion (45) 20 45
R Rotation (80) 45 80
L Rotation (80) 35 80
Combined (340) 145 275
Comment painful motion tenderness; spasms
§4.71a Rating 30% 30%

The Board directs attention to its rating recommendation based on the above evidence. Both the PEB and VA appropriately rated the CI’s neck condition under diagnostic code 5241 (spinal fusion). The PEB rated the condition 10% for “painful motion” with muscle spasms; although a forward flexion of “10 degrees” may have met the severe (30%) criteria. The VA exam also had the same flexion measurement and rated the condition 30%. The Board adjudged that the consistency of flexion and extension ROM measurements in both before and after separation examinations provided credence that the CI has likely reached a state of maximum post-operative healing in these planes of motion with resultant mobility. Clearly, the limited cervical ROM of less than 15 degrees of flexion supports a 30% impairment coded 5241. The cervical spine ROM was not sufficiently limited to consider coding under ankylosis. There was no evidence of vertebral fracture or demonstrable deformity of vertebral body and there was no evidence of episodes of incapacitation for alternative ratings. The Board also considered whether an additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the residual neuropathy. Firm Board precedence requires a functional impairment linked to fitness in order to recommend separate rating for radiculopathy associated with unfitting spine conditions; a threshold clearly not reached by the evidence in this case. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the cervical spine condition.

Bilateral Foot Conditions. Absent direct trauma, the CI developed bilateral dorsal (bottom) foot pain in January 2005. Podiatry diagnosed bilateral exostosis (formation of new bone on bone) at the first metatarsal joints. On 5 April 2005, the CI underwent bilateral exostectomies (surgical removal of the exostosis). Due to persistent pressure and pain on both feet, a second surgery for additional bone removal was performed June 2005. Post-operatively, he remained with mild pain to the top of his right foot and abnormal sensation to the bottom. He has difficulty wearing closed footwear. At the MEB NARSUM addendum examination (18 October 2005), the CI endorsed pain to the bottom of his right foot. “[The CI] related that long standing causes pain generalized to both feet.” The PE revealed bilateral tenderness to the bottom of both feet. A tinel test (clinical test for nerve pain) was positive on the right foot. The first ray (specific boney articulation in the foot) revealed increased ROM (normal is minimal ROM). His diagnoses were bilateral hypermobile first ray, bilateral recurrent metatarsal spur and bilateral neuralgia; right greater than left foot. His pain rating was described as “occasional” and “slight.”

At the VA C&P exam the CI reported constant bilateral aching foot pain that is worsened with physical activity and standing. “At the time of pain he can function with medication.” The examiner noted his functional impairment is that “He can’t stand for long periods of time.” The PE revealed right foot tenderness. His gait was normal. “The left foot was without tenderness, weakness, edema, atrophy, or disturbed circulation.”

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition under analogous VASRD code 5099-5003 and invoked the USAPDA pain policy as the basis for its 0% rating. The VA separately rated each foot under VASRD 5284 (foot injuries; other), conferring 10% impairment rating. The Board first considered if a combined bilateral rating, as per the PEB approach, was appropriate and the most favorable rating IAW VASRD §4.7 (higher of two evaluations). Bilateral rating analogous to 5003 also poses conflict with the VASRD, since there were no confirmatory X-ray findings nor is arthritis an accurate clinical descriptor for the pathology in evidence. None of the bilateral foot rating options IAW VASRD §4.71a (pes planus, claw foot, metatarsalgia) are clinically applicable; with the possible exception of an analogous rating under 5277 (weak foot) yielding a bilateral rating of 10%). In consideration of separate ratings in lieu of PEB combined ratings, the Board must also consider separate fitness assessments which justify each disability rating. Board members considered and agreed that that the bilateral pain in each foot was a direct result from a post-operative nerve related condition and is supported by the NARSUM’s diagnosis of “bilateral neuralgia; right greater than left.” Members concluded that the neuralgia symptoms and limitations described above would have rendered the CI unable to meet the demands of his MOS even if confined to a single foot and therefore, each foot should be conceded as separately unfitting. The Board next considered the proper coding for separate ratings. With the absence of compensable ROM limitations or other orthopedic joint abnormality, there are no good analogous coding fits under §4.71a. The Board notes, however, that the disability in this case is a good analogous fit with a peripheral nerve code. The anatomic correlation in this case is directed to the posterior tibial nerve which includes innervation to the sole of the foot; and therefore neuralgia of that nerve coded 8725 is supported IAW VASRD §4.124. VASRD guidelines stipulate that ‘neuralgia’ may be rated no higher than ‘moderate’ nerve impairment; which for 8725 is 10% (10% is also the rating for ‘mild’ under 8725). After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends separate right and left disability ratings of 10% each for the bilateral (neuralgia) foot 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. As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the bilateral foot condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the cervical spine condition, the Board unanimously recommends a disability rating of 30%, coded 5241 IAW VASRD §4.71a. In the matter of the bilateral foot condition, the Board unanimously recommends separate disability ratings of 10% each foot, coded 8725 IAW VASRD §4.124. 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic Neck Pain 5241 30%
Right Foot Neuralgia 8725 10%
Left Foot Neuralgia 8725 10%
COMBINED (w/ BLF) 40%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131111, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                                   
XXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXX, AR20150005531 (PD201302517)


1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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

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