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AF | PDBR | CY2013 | PD-2013-02524

Original file (PD-2013-02524.rtf) Auto-classification: Approved

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX CASE : PD -20 13 - 0 2524
BRANCH OF SERVICE: Army BOARD DATE: 201 4 0806

Separation Date: 20040326

SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized National Guard SSG/E-6 (95B/Military Police) medically separated for cervical and lumbar spine conditions. The cervical and lumbar spine conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS). He was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB). The cervical and lumbar spine conditions, characterized by the MEB as “Status Post (s/p) ACDF, C4 through C6 with Degenerative Disc Disease (DDD)” and “C6-7 DDD L5-S1 with non-radicular low back pain (LBP),” 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 status post fusion” and “chronic low back pain (LBP) due to lumbar DDD without neurologic abnormality” as unfitting, rated 10% and 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.

CI CONTENTION : The CI elaborated no specific contention in his application.

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 cervical and lumbar spine 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 :

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Service IPEB – Dated 20031217	VA - (6.5 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Neck Pain s/p Fusion	5241	10%	DDD, Cervical Spine Status Post-Operative (post/op) Cervical Discectomy	5243	20%	20041005
Chronic LBP/DDD	5299-5237	10%	DDD, Lumbar Spine	5243	Not Service Connected (NSC)*	20041005
Other x 0 (Not is Scope)	Other x 8
Combined: 20%	Rating: 20%

Derived from VA Rating Decision (VARD) dated 20041029 (most proximate to date of separation [DOS])
*After multiple appeals, VARD dated 20090126 rated the lumbar spine condition at 20% effective DOS

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ANALYSIS SUMMARY :

Chronic Neck Pain s/p Fusion Condition . The CI initially sustained an injury to his neck in 1999 and was diagnosed with a ruptured disc at C4-5 and C5-6 on the left side . He underwent an anterior cervical decompression of C4-5 and C5-6 on 11 March 1999. The CI reinjured his neck and sustained an injury to his back when he fell during a land navigation cours e in March 2002. The CI was seen for posterior occipital, neck and left shoulder pain however there was no compl ai nt of paresthesias or weakness in the left upper extremity . The physical findings were decrea s ed range-of-motion ( ROM ) with increased discomfort on hyperextension and left rotation and lateral flexion. The examiner prescribed a non-steroidal anti-inflammatory drug (NSAID), a muscle relaxant and ice and t he CI w a s put on light duty/no physical training for a week. He was diagnosed with DDD, cervical spine and rule - out radiculopathy. The cervical spine X -ray demonstrated osteophyte formation from vertebrae C4-C7. The CI was referred to p hysical t herapy (P T ) for a 6- month history of neck pain and stiffness with physical exam findings of paraspinal tightness on the right side greater than left side; and decreased ROM in all planes with sharp pain at the end range of extension. The cervical spine magnetic resonance imaging ( MRI ) demonstrated extensive multi - level degenerative disc changes and degenerative changes of the posterior elements with moderate to sever e neural foraminal narrowing noted at multiple levels . The CI was followed by o rthopedics who continued to document cervical spine pain with radiation to both arms. The n eurologist noted pain and tingling in left arm with physical exam findings of a positive L h ermittes sign ( sharp electric current - like pain ) and normal motor and sensory exams . The p rimary c are examiner noted that daily intermittent pain was 8 to 9 and at the worst with an average pain of 6 to 7/10 . There were physical findings of loss of curvature in the cervical and lumbar spine with decreased flexion, extension, lateral flexion to both right and left and decreased rotation to right and left of cervical spine; reflexes were 1+ in the upper extremities ; however, strength was normal in the upper extremities . An electromyogram (EMG) of the left upper extremity was normal. A repeat MRI demonstrated extensive degenerative disc and vertebral joint disease throughout the mid cervical spine with diffuse central canal narrowing, without alteration of the cord signal ; however , foraminal narrowing was demonstrated at every visualized level. An EMG performed o n 27 May 2003 demonstrated evidence of bilateral C5 and C6 radiculopathies, more significant on the left. The n eurosurgeon noted cervical ra diculopathy pain that radiated f rom the cervical spine across the shoulders down both upper extremities w i th the left greater than right with tingling in the first three digits in the left hand with occasional intermittent sharp pain. Physical exam findings were intact upper extremity motor and sensory exams. The c ommander’s s tatement documented that the CI’s neck and back condition interfered with the performance of his MOS. The c ommander suggested that t he CI be reclassified into a different MOS with a low impact demand rating or considered for separation due to lack of medical fitness. The CI was given a U3 / L3 Profile for s/p cervical spine surgery C4-6, C6-7 severe DDD, LBP with severe DDD L5-S1 . The MEB n arrative s ummary (NARSUM) exam approximately 5 months prior to separation documented that the CI had neck pain rated at 7/ 10 daily with an increase to 9 to 10 with activity. The examiner opined that the CI’s prognosis for a full recovery was poor. The examiner rated the pain according to the American Medical Association (AMA) pain scale at moderate and constant. The MEB NARSUM physical exam findings are summarized in the chart below . The VA Compensation and Pension (C&P) exam approximately 6.5 months after separation documented that the CI had constant daily neck pain rated at 7/ 10, neck stiffness occurred with turning the neck to any side with radiation down both upper extremities with feelings of hand weakness during an acute exacerbation. He used a transcutaneous electrical nerve stimulation unit, home cervical traction daily and wore a cervical collar at least 6 to 8 hours per day, along with daily muscle relaxant, NSAID and pain medication. The VA C&P physical exam findings are summarized in the chart below .

There were two goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the following chart :

Cervical ROM(Degrees)	MEB 5 Mos. Pre-Sep	VA C&P 6.5 Mos. Post-Sep
Flex (45 Normal)	25	20
Combined (340)	190	13 5
Comment	No tenderness to palpation; Normal strength, sensation & reflexes both arms	Pos. tenderness to palpation & painful motion; Normal strength, reflexes & sensation
§4.71a Rating	20% (PEB 10%)	20%

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invalid font number 31502 The Board directs attention to its rating recommendation based on the above evidence. invalid font number 31502 The PEB coded the invalid font number 31502 c invalid font number 31502 hronic invalid font number 31502 n invalid font number 31502 eck invalid font number 31502 p invalid font number 31502 ain s/p invalid font number 31502 f invalid font number 31502 usion condition as 5241 invalid font number 31502 ( invalid font number 31502 s invalid font number 31502 pinal fusion invalid font number 31502 ) invalid font number 31502 and rated at 10%. invalid font number 31502 The PEB proceedings document noted, “Combined range of motion 225 degrees” which would be consistent with a 10% rating. invalid font number 31502 However, upon review, the Board was unable to verify that combined ROM value in the evidence, noting that the NARSUM documented a combined ROM of 190 degrees (also consistent with a 10% rating). invalid font number 31502 The VA coded the invalid font number 31502 DDD, invalid font number 31502 c invalid font number 31502 ervical invalid font number 31502 s invalid font number 31502 pine invalid font number 31502 s invalid font number 31502 tatus post/op invalid font number 31502 c invalid font number 31502 ervical invalid font number 31502 d invalid font number 31502 iscectomy condition as 5243 invalid font number 31502 i invalid font number 31502 ntervertebral invalid font number 31502 d invalid font number 31502 isc invalid font number 31502 s invalid font number 31502 yndrome and rated invalid font number 31502 at invalid font number 31502 20% invalid font number 31502 based on ROM value of 20 degrees forward flexion. invalid font number 31502 The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “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.” invalid font number 31502 invalid font number 31502 The Board agreed invalid font number 31502 invalid font number 31502 that the invalid font number 31502 PEB’s coding of 5241 was the most appropriate; however, the ROM measurements contained in the NARSUM invalid font number 31502 met the 20% rating criteria invalid font number 31502 (forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees). The Board also noted that the post separation C&P exam also met the 20% rating criteria. Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The sensory component in this case has no functional implications. Although the CI underwent an initial EMG of the left upper extremity which was normal, a second EMG demonstrated evidence of bilateral C5 and C6 radiculopathies, more significant on the left. However all of the motor exams demonstrated normal strength, there was no evidence of upper extremity weakness. Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment. invalid font number 31502 After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a rating of 20% for the invalid font number 31502 c invalid font number 31502 hronic invalid font number 31502 n invalid font number 31502 eck invalid font number 31502 p invalid font number 31502 ain s/p invalid font number 31502 f invalid font number 31502 usion condition. invalid font number 31502

Chronic Low Back Pain/DDD : The CI sustained an injury to his back when he was on active duty in a land navigation course and fell in March 2002. He was seen by p rimary c are for complaints of pain in the lumbar spine that radiated down his left leg . The physical exam findings were full ROM ; however , limited due to pain with a positive step - off deformity. The examiner advised a NSAID injection, an oral NSAID, X -ray and ice with stretches in PT. The CI continued to report pain in the lumbar spine and increased numbness in the extremities. He was seen by n eurology and was noted to have pain and tingling in the left leg. A lumbar spine MRI demonstrated a central herniated disc at L4-5 and L5-S1 with moderate pressure on the thecal sac. The c ommander’s s tatement documented that the CI’s neck and back condition interfered with the performance of his MOS. The c ommander suggested that the CI be reclassified into a different MOS with a low impact demand rating or considered for separation due to lack of medical fitness. The n eurosurgeon noted severe lumbar spondylosis without a radiculopathy . The CI was given an L3 Profile for LBP with severe DDD L5-S1. The p hysical p rofile form listed other restrictions related to L3 Profile. The MEB Narrative Summary (NARSUM) exam approximately 5 months prior to separation documented that the CI had LBP rated at 7/10 which increased with activity. The examiner opined that the CI’s prognosis for a full recovery was poor. The examiner rated the pain according to the AMA pain scale at moderate and constant. The MEB NARSUM physical exam findings are summarized in the chart below . The VA C&P exam approximately 6 months after separation documented that the CI appeared to be in moderate discomfort and walked with a stiff gait pattern and stooped posture . He reported that the stiffness and aching throbbing pain was rated at level seven and it could become more painful at times and would radiate down both lower extremities especially in the right lower extremity to the posterior aspect of the calf. The VA C&P physical exam findings are summarized in the chart below .

Thoracolumbar ROM(Degrees)	MEB 5 Mos. Pre-Sep	VA C&P 6.5 Mos. Post-Sep
Flexion (90 Normal)	75	50
Combined (240)	-	-
Comment	No tenderness to palpation; Normal strength, sensation & reflexes; Neg. straight leg raise bilaterally	Pos. painful motion with muscle guarding; Neg. straight leg raise bilat.; Normal strength, sensation & reflexes
§4.71a Rating	10%	2 0%

invalid font number 31502
invalid font number 31502 The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the invalid font number 31502 c invalid font number 31502 hronic invalid font number 31502 LBP invalid font number 31502 /DDD condition as 5299 analogous to 5237 invalid font number 31502 ( invalid font number 31502 l invalid font number 31502 umbosacral or cervical strain invalid font number 31502 ) invalid font number 31502 invalid font number 31502 r invalid font number 31502 ated at 10%. The VA coded the DDD, invalid font number 31502 l invalid font number 31502 umbar invalid font number 31502 s invalid font number 31502 pine condition as 5243 invalid font number 31502 ( invalid font number 31502 i invalid font number 31502 ntervertebral invalid font number 31502 d invalid font number 31502 isc invalid font number 31502 s invalid font number 31502 yndrome invalid font number 31502 ) invalid font number 31502 and initially invalid font number 31502 determined the condition invalid font number 31502 as NSC. invalid font number 31502 The Board of Veterans Appeals invalid font number 31502 found sufficient evidence to reopen the CI’s case and invalid font number 31502 the invalid font number 31502 26 invalid font number 31502 January invalid font number 31502 2009 invalid font number 31502 VARD invalid font number 31502 changed the rating to 20% effective invalid font number 31502 on invalid font number 31502 30 March 2004. invalid font number 31502 The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “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.” invalid font number 31502 invalid font number 31502 The Board agreed that invalid font number 31502 , at the time of separation, invalid font number 31502 the CI met the invalid font number 31502 1 invalid font number 31502 0% rating criteria invalid font number 31502 documented by invalid font number 31502 the MEB invalid font number 31502 f invalid font number 31502 or “ invalid font number 31502 Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees invalid font number 31502 . invalid font number 31502 ” invalid font number 31502 The Board deliberated on the ROM findings documented by the post-separation C&P exam (which were consistent with a 20%) and members agreed that the PEB appropriately applied VASRD standards to the ROM measurements obtained invalid font number 31502 5 invalid font number 31502 months prior to separation. invalid font number 31502 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 invalid font number 31502 c invalid font number 31502 hronic LBP/DDD condition. invalid font number 31502

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 c hronic n eck p ain s/p f usion condition, the Board unanimously recommends a disability rating of 20 %, coded 5241 IAW VASRD §4.71a. In the matter of the c hronic LBP/DDD 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.

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RECOMMENDATION : The Board recommends that the CI’s prior determination be modified as follows ; and , that the discharge with severance pay be re - characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation .

UNFITTING CONDITION	VASRD CODE	RATING
Chronic Neck Pain s/p Fusion	5241	2 0%
Chronic Low Back Pain/DDD	5299-5237	10%
COMBINED	3 0%

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The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20 131112 , w/atchs
Exhib it 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, AR20150002930 (PD201302524)

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 30% 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 30% 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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AF | PDBR | CY2013 | PD-2013-02524

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