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AF | PDBR | CY2014 | PD-2014-00570
Original file (PD-2014-00570.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-00570
BRANCH OF SERVICE: Army  BOARD DATE: 20141223
SEPARATION DATE: 20061107


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty O-3 (Personnel Systems Management) medically separated for chronic neck and low back pain (LBP). The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB). The neck and low back conditions, characterized as “degenerative disc disease (DDD) of the C-spine, secondary to post-operative fusion with chronic pain, no radiculopathy” and “DDD lumbar spine status post fusion L4-5, chronic pain, no radiculopathy,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition (gastroesophageal reflux disease) as medically acceptable for PEB adjudication. The Informal PEB adjudicated “chronic neck pain with a history of C6-7 fusion and DDD” and “chronic LBP post L4-5 fusion with DDD,” rated 10% and 0%, referencing the VA Schedule for Rating Disabilities (VASRD). The remaining condition w as determined to meet retention standards. The CI made no appeals and was medically separated.


CI CONTENTION: “Attached documents show the rating from MEB was much less than that granted by the VA and did not include depression, which I was seeking help and taking medication for at that time and presently. I appealed the MEB findings which resulted in no change. Do to the severity of the pain I was in at the time I chose to leave the Armed Forces. After leaving the armed forces I had three more spine fusion surgeries, and struggled with severe depression. I have never been one to complain and it pains me to do so, but combined with the unfair MEB separation from the armed force and waiting for the VA to finally find that I was unemployable. I struggled, and still do, with severe depression and chronic back pain causing my family to go bankrupt and finally leave me. Please review my case and make the necessary changes. Thank you for your time.”


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 Veterans Affairs Schedule for Rating Disabilities (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 :

Service IPEB – Dated 20060724
 VA - (6 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Neck Pain 5241 10% Intervertebral Disc Syndrome – Cervical Spine 5243 20% 20070430
Chronic Low Back Pain 5241 0% Intervertebral Disc Syndrome – Lumbar Spine 5243 10%* 20070430
Other x 0 (Not In Scope)
 Other x 2
Combined: 10%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 70712 ( most proximate to date of separation [ DOS ] ).
* Rating up to 20% after L-S Spine surgery identified in a 20080505 VARD, effective 20070301, within 5 months of separation.


ANALYSIS SUMMARY:

Neck Condition. In 2004, the service treatment record (STR) historically documented the CI’s neck pain condition secondary to a fall from a tower in 1999. His symptoms were neck and right arm pain and numbness in his fingers. Radiology tests revealed lower cervical disc abnormality with nerve passage narrowing. He underwent an anterior cervical fusion of C6-7 on 13 April 2004. Absent significant interim documentation, in March 2006 he again complained of “some neck pain” without radicular symptoms. A trial of steroid injections did not resolve his painful symptoms and eventually he was sent for an MEB. At the narrative summary (performed 4 months prior to separation) the CI endorsed intermittent neck pain aggravated by prolonged sitting, driving and overhead work, as well as the inability to run and perform other physical activities. His physical examination (PE) revealed muscular spasm about the cervical spine. The diagnosis was DDD of the cervical spine secondary to post-operative fusion with chronic pain, no radiculopathy. The commander’s statement noted the CI’s duty limitations and stated, “[He] should be considered unemployable at this level because of his medical disability.” His permanent profile listed DDD to both the cervical and lumbar spine with lifting restrictions of no greater than 10 pounds. At the VA Compensation and Pension examination (performed approximately 6 months after separation), the CI reported constant posterior neck pain worsened in cold weather and turning head to the left. He denied radicular pain, numbness, or tingling. His PE was significant for limited and painful motion of the neck. The goniometric range-of-motion (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 20061107
Cervical ROM
(Degrees) 		MEB ~ 5 Mo. Pre-Sep
(20060607)
PT ~ 2 Mo. Pre-Sep
(20060908)
VA C&P ~ 6 Mo. Post-Sep
(20070430)
Flex (45 Normal) Full ROM
 20 30
Extension (45) 40 30
R Lat Flexion (45) 20 30
L Lat Flexion (45) 25 30
R Rotation (80) 50 70
L Rotation (80) 30 70
Combined (340) 185 260
Comment neck spasm painful motion painful motion
§4.71a Rating 10 % 20% 20%

The Board directed attention to its rating recommendation based on the above evidence. Although the PEB and VA titled the unfitting neck condition slightly differently, they both utilized similar codes of 5241 (spinal fusion) and 5243 (intervertebral disc syndrome) respectively; both citing pain and additional limited motion by the VA. Board members agreed that sufficient evidence of cervical spasms were present to justify the rating of 10% IAW VASRD §4.71a. The above charted PT measurements were requested by the CI; “[He] feels condition/ROM has worsened since time of last measurements.” The requested ROM values reported by the PT examiner were less than those reported by the MEB examiner 3 months prior. There was no record of recurrent injury or other development in explanation of the declining values. Board members extensively discussed the abrupt ROM impairment between 2 and 5 months prior to separation exams and agreed that the PT evaluation (2 months prior to separation) remained very much consistent with the post-separation examination as well as with further remote evaluations for which the Board reviewed. Clearly, the CI’s limited ROM supported a 20% rating IAW VASRD §4.71a. Additionally, all members agreed that there was no separately ratable neuropathy for disability, since no functional impairment linked to fitness was in evidence. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the neck pain condition.

Low Back Condition. Radiology tests confirmed lumbosacral DDD with bulging discs in 2002 which correlated well with his symptoms of LBP with radicular extension into his right leg. He underwent an L4-5 spinal fusion on 30 December 2002. During a 3 year post-operative period, the STR reflected intermittent LBP without any further radicular symptoms. Subsequent epidural steroid injections also did not completely resolve his painful symptoms. Both PT and orthopedic encounters of 15 December 2005 and 3 January 2006 indicated normal or full ROM of the thoracolumbar spine. Six weeks later, on 15 February 2006, another PT measured thoracolumbar flexion was decreased 56% from previous measure. Pursuant to persistent back pain, he was sent for an MEB. 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 20061107
“
Thoracolumbar ROM
(Degrees)		 PM ~ 6 Mo. Pre-Sep
(20060505)
MEB ~ 5 Mo. Pre-Sep
(20060607)
PT ~ 2 Mo. Pre-Sep
(20060906)
VA C&P ~ 6 Mo. Post-Sep
(20070430)
Flexion (90 Normal) 75Full ROM” 45 70
Extension (30) 30 10 30
R Lat Flexion (30) 30 15 30
L Lat Flexion (30) 30 15 30
R Rotation (30) - 30 30
L Rotation (30) - 30 30
Combined (240) - 240 145 220
Comment painful motion (+) spasms w/ nl gait painful motion painful motion
§4.71a Rating 10% 10 % 20% 10 %

The Board directed attention to its rating recommendation based on the above evidence. The VASRD coding for the low back condition remained the same as previously discussed for the neck condition. The PEB cited no specific reason and rated 0%, while the VA rated 10% citing painful motion. Clearly, from 6 months either side of separation, a 10% rating is supported IAW §4.59 (painful motion) or spasms not resulting in an abnormal gait. The single PT examination noting a 56% decrease in thoracolumbar flexion was the sole encounter that reflected a higher impairment rating based on ROM. There was no record of recurrent injury or other development in explanation of the declining values. Board members first agreed that sufficient evidence of painful motion was present to support a PEB rating of 10% IAW VASRD §4.59. Board members additionally considered application of §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled,” and clearly, the persistence of painful motion was such the case in this condition. After due deliberation, considering the totality of evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the low back 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 neck condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a. In the matter of the low back condition, the Board unanimously recommends a disability rating of 10% coded 5241 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; 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 20%
Chronic Low Back Pain 5241 10%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140123, 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, AR20150008512 (PD201400570)


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

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