RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE NUMBER:  PD1300132
BRANCH OF SERVICE:  Army	BOARD DATE:  20130625
Separation Date:  20021125

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a temporary tour of active duty Reserve SPC/E-4 (91A10/Medical Equipment Repair Specialist) medically separated for chronic mandible and neck pain.  The CI initially suffered a jaw fracture as a result of a fight in 1973 and then refractured his jaw in 1991 due to a motor vehicle accident (MVA) during a dust storm in Saudi Arabia.  In January of 2001 while doing physical training, the CI developed pain to his lower neck and bilateral upper back.  Despite rehabilitation, neurology, neurosurgery, otolaryngology and dental consultations and extensive physical therapy (PT), the CI failed to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3/U3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “chronic right mandible and neck pain” to the Informal Physical Evaluation Board (IPEB) as medically unacceptable IAW AR 40-501.  The MEB also forwarded moderate obstructive sleep apnea (OSA)-hypopnea with significant desaturation and no positional component, isonicotinic acid hydrazide [INH] induced Hepatitis and latent tuberculosis infection as medically acceptable conditions.  The IPEB adjudicated the chronic mandible and neck pain as unfitting, rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI submitted a request to the Formal PEB (FPEB) for minority member representation upon which the FPEB concurred.  The CI then submitted a rebuttal of the FPEB findings to the USAPDA, which affirmed the FPEB findings and rating.  The CI was then medically separated.

CI CONTENTION:  “Not all of my records went to board.  Found rest of my records Jan 2008 give to VA.”

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 rating for the unfitting mandible and neck condition is addressed below.  Any conditions or contention either 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:

Service FPEB – Dated 20020912	VA - (8 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Mandible and Neck Pain	5099-5003	10%	Bilateral Temporomandibular Myofascial Pain Dysfunction with Ear Pain	9905	30%	20030228	
			Cervical Spine Condition due to Trauma	5299-5237	Not Service Connected (NSC)	20030306	
			Residuals Fracture Mandible	9903	NSC	20030306	
Moderate OSA –Hypopnea w/ Significant Desaturation & No Positional Component	Medically Acceptable	OSA	6847	NSC	20030306	
INH Induced Hepatitis	Medically Acceptable	Hepatitis	7345	NSC	20030306	
Latent Tuberculosis Infection	Medically Acceptable	Latent Tuberculosis	6723	NSC	20030306	
No Additional MEB/PEB Entries	Other x 0	20030306	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20040122 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate 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 Mandible and Neck Pain Condition.  The PEB rated chronic mandible and neck pain under the single analogous 5003 degenerative arthritis code.  This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 uses the Veterans Affairs Schedule for Rating Disabilities (VASRD) in arriving at its recommendations, along with all applicable statutes, and any directives in effect at the time of the contested separation (to the extent they do not conflict with the VASRD in effect at the time of the contested separation).  The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was reasonably justified as unfitting in and of itself, with the caveat that the final recommendation may not produce a lower combined rating than that of the PEB.

Chronic Mandible Pain Condition.  The Board first considered if the chronic mandible pain condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting.  The service treatment record (STR) includes a long history of mandibular pain with frequent visits and a permanent P3/U3 profile for chronic right mandible and neck pain.  The inability to wear a helmet as profiled was at least as likely as not, a result of the mandible pain.  The commander’s statement does not specifically address mandibular pain.  The MEB narrative summary (NARSUM) does not include an assessment of the mandible and states this condition would be evaluated by oral maxillofacial surgery (OMFS).  The NARSUM does state the CI currently had right jaw and neck pain that prevented him from wearing a helmet or performing his job.  The physical medicine examiner opined the condition was unlikely to resolve and that CI’s prognosis for gainful employment was guarded.  No OMFS MEB NARSUM addendum is available for review.  The record does contain records from seven evaluations by OMFS from September 2001 to July 2002 for myofascial pain dysfunction (MPD) and decreased active maximal incisal opening (MIO) ranging from 17mm to 26mm, with the latest one at 21mm.  Additional records document a long history of temporomandibular joint (TMJ) syndrome after a fractured mandible in 1973 (on active duty) and a significant exacerbation in 1991 with pain and MIO of 10-15mm after a military motor vehicle accident while deployed to Saudi Arabia.  All members agreed that the functional limitations in evidence reasonably justified the conclusion that the condition was integral to the CI’s inability to perform his MOS and accordingly a separate rating is recommended.

The CI initially sustained a jaw fracture in 1973 and then suffered a second mandibular fracture in 1991 from an MVA.  The CI was seen in the dental clinic following the second mandibular fracture for continued pain and pressure in the jaw.  The dentist noted physical findings of tenderness over the left and right TMJ; slight tenderness over the left and right masseter and a maximum jaw opening of 10-15 millimeters (mm) and prescribed a mouth splint.  A skull X-ray was negative.  The CI developed worsening jaw pain after he hurt his neck doing sit-ups in January 2001.  Dental clinic notes in 2001 documented continued TMJ tenderness and radiographs demonstrated moderate bone loss.  A dental clinic note in March 2001 noted that the CI was only able to open his mouth half way and had difficulty opening his mouth.  The CI had a dental sick call visit in July 2001 for increasing jaw pain with findings of tenderness to palpation (TTP) of the muscles of mastication and TMJ area bilaterally.  The dentist advised that because of the TMJ, the CI needed to avoid opening his mouth widely and to apply warm moist heat for the chronic jaw pain.  In September 2001, the OMFS noted a mandible opening of 25mm, 10mm to the right, and 8mm to the left with tenderness of the right temporal, masseter, and pterygoid.  An X-ray showed osteophytes on the right side.  Conservative therapy including a splint was recommended.  The CI was evaluated by orthopedics for jaw pain and they concurred with continuation of the mandible splint.  In March 2002, OMFS surgeon noted evidence of TMJ osteoarthritis and again recommended splint therapy and conservative measures.  The CI was given a hard night guard for the mouth in March 2002.  An MIO of 17mm on active range-of-motion (ROM), very poor occlusion, and TTP of all mastication muscles was noted in early May 2002.  The MEB NARSUM exam in mid-May 2002, approximately 8 months prior to separation, indicated right jaw pain but did not include any physical examination findings.  Subsequent OMFS visits documented continued TTP of involved muscles and MIOs of 21mm on 30 May 2002 (active) and 25 July 2002 (passive, no active measurement noted).  The CI underwent a TMJ nerve block in July 2002 but no information about the results is available.  A magnetic resonance imaging (MRI) performed in June 2002 demonstrated mild degenerative change of TMJ with bilateral symmetric findings of anteriorly dislocated disk at rest with partial recapture on opening and limited excursion was also noted.  The VA Compensation and Pension (C&P) dental examination approximately 3 months after separation noted that the CI wore a splint for a short time but this exacerbated his pain and that his pain averaged between             6-8/10, with occasional exacerbations to 10/10.  At the time of the exam, the CI was unable to open his mouth fully without manual manipulation.  The CI also reported locking of his jaw at times, both open and closed.  Physical findings included an MIO of 11mm with a manual opening of greater than 30mm, a right lateral excursion of 7mm, and a left lateral excursion of 10mm; a severe malocclusion with multiple misaligned teeth and a bilateral posterior crossbite; significant pain in the right temporal, right TMJ, and right subcortical area; mild to moderate pain in the left temporal area, left TMJ, and right masseter area.  The diagnosis was MPD, moderate to severe and bilateral TMJ inflammation, right greater than left.

The Board directs attention to its rating recommendation based on the above evidence.  As described above, the PEB bundled both conditions in its application of the USAPDA pain policy.  The VA coded the bilateral temporomandibular MPD with ear pain condition 9905 (temporomandibular articulation, limited motion of) and rated at 30% for Inter-incisal range (MIO) of 11 to 20mm.  The P3U3 profile was issued for chronic mandible and neck pain and the CI was restricted from wearing his helmet likely due to the fact that the strap would cause mandible pain.  Throughout the STR there is clear and ample evidence that demonstrates MIOs between 10 to 25mm.  The OMFS exam approximately 4 months prior to separation noted an MIO of 21mm.  The C&P exam documented that at approximately 3 months after separation, the CI had an MIO of 11mm.  The Board adjudged that the exams in this case occurred approximately equidistant from the date of separation, but the July 2002 OMFS examination was prior to separation, and therefore it had the higher probative value.  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 chronic mandible pain condition coded 9905.

Chronic Neck Pain Condition:  The Board first considered if the chronic neck pain condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as independently unfitting.  The STR includes a long history of cervical spine pain with regular visits, and a permanent P3/U3 profile for chronic right mandible and neck pain.  The inability to wear a backpack, carry and fire a rifle, and lift any weight is, more likely than not, a result of the neck pain.  The commander’s statement documented an inability to perform the duties of his MOS due to the aggravation of his neck pain.  All members agreed that the functional limitations in evidence reasonably justified the conclusion that the condition was integral to the CI’s inability to perform his MOS rating; and, accordingly a separate rating is recommended.

There were several range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Cervical ROM
(Degrees)	PT ~ 8 Mo. 
Pre-Sep	MEB ~ 6 Mo. Pre-Sep	VA C&P ~ 3.5  Mo. Post-Sep	
Flex (45 Normal)	20	No goniometrics	15	
Extension (45)	40		35	
R Lat Flexion (45)	25		15*	
L Lat Flexion (45)	20		20	
R Rotation 80)	40		50*	
L Rotation (80)	25		60	
Combined (340)	170		195	
Comment	All limited by pain;  testing increased pain to 8/10; strength 5/5	Slight decreased ROM; ROM with pain on end range extension and bending to right; multiple bilateral trigger points paraspinals, right neck, upper back; tender points in bilateral anterior cervical areas; motor strength and reflexes were normal; sensation was decreased to light touch and pinprick in a patchy non-dermatomal pattern	Tender to palpation midline form midcervical to cervical-thoracic junction, more so on the right paraspinous muscles; no palpable muscle spasms; *movement led to increased right paraspinous muscle pain; negative compression and distension (Waddell) tests; guarded ROM of RUE; normal strength and reflexes; vague and diffuse altered sensation in a non-dermatomal pattern	
§4.71a Rating	20%	10%	30%	

The CI developed right sided neck pain and worsening jaw pain after doing sit-ups in January 2001 and was seen in the emergency room (ER).  A cervical spine X-ray performed in the ER was normal.  An MRI performed at that time showed minimal spondylosis.  The CI was evaluated by neurosurgery for axial neck pain and bilateral upper extremity pain and the examination was within normal limits.  The examiner noted significant effort was required to get the CI to cooperate with the examination.  He recommended and electromyelogram (EMG) and nerve conduction studies and noted that, if these were abnormal, surgical treatment could be warranted.  An EMG of the right upper extremity was normal.  The neurologist diagnosed subjective mechanical cervical pain and recommended a physical medicine consult.  The rehabilitation specialist diagnosed the CI with chronic cervical myofascial pain.  Cervical spine X-rays performed in September 2001 demonstrated mild bilateral C5-6 foraminal narrowing.  The CI was followed by Army physical therapy for the neck condition from September 2001 to March 2002 and treatments included traction and transcutaneous electrical nerve stimulation without relief of pain.  The MEB NARSUM noted chronic neck pain as well as pain rated six to seven out of ten in the right proximal arm and upper back.  His pain did not respond to treatment with physical therapy or medication and he was placed in medical hold at Brooke Army Medical Center so he could be near his son and his mother.  His pain would occasionally reach 10 out of 10 after increased activities and was sometimes only 2 to 3 out of 10.  The current status noted pain rated at seven to ten out of ten from his right ear to his neck and 4 to 5 out of 10 to his right arm.  He had stopped all medications.  The MEB physical exam findings are summarized in the chart above.  No ROM measurements were taken but physical therapy documented the measurements noted in the chart above from an examination 2 months prior.  The commander’s statement documented that the CI could not perform his MOS duties because of aggravation of his neck injury.  The CI was given a permanent P3/U3 profile for chronic right mandible and neck pain with limitations of no Army Physical Fitness Test and no use of helmet or rucksack.  The C&P exam documented constant cervicothoracic to right upper arm pain that increased with use of the arm, movements of the hand, and head movements, especially looking to the right and up and down.  The C&P physical exam findings are summarized in the chart above.

The chronic neck condition was rated IAW the 2002 VASRD standards that are no longer in effect.  The 2002 VASRD coding and rating standards for the spine, which were in effect at the time of separation, were changed on 23 September 2002 for code 5293 intervertebral disc syndrome criteria, and then changed to the current §4.71a rating standards on 26 September 2003.  The 2002 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment.  When older cases have goniometric measurements in evidence, the Board reconciles (to the extent possible) its opinion regarding degree of severity for the older spine codes and ratings with the objective thresholds specified in the current VASRD §4.71a general rating formula for the spine.  This promotes uniformity of its recommendations for different cases from the same period and more conformity across dates of separation, without sacrificing compliance with the DoDI 6040.44 requirement for rating IAW the VASRD in effect at the time of separation.

The Board directs attention to its rating recommendation based on the above evidence.  As described above, the PEB bundled the chronic neck with the mandible condition in its application of the USAPDA pain policy.  The VA determined the cervical spine condition due to trauma was NSC stating there was no evidence that a chronically disabling condition had been diagnosed.  The Board cannot explain why the VA based their rating decision on evidence that no chronically disabling condition was diagnosed.  The CI’s cervical spine condition was well documented in the STR as occurring while doing sit-ups.  The commander’s statement specifically documented the neck problem as being the cause of the CI’s inability to fulfill his MOS duties.  All exams prior to separation demonstrated decreased and painful motion.  The ROM measurements both prior to physical therapy and after (C&P) separation are quite similar, however the cervical flexion at the VA examination was slightly less at 15 degrees as opposed to 20 degrees on the physical therapy exam.  Although no ROM measurements were recorded at the MEB NARSUM examination, the remainder of the physical examination was remarkably similar to the VA examination and there does not appear to be any significant change over time.  With normal cervical flexion at 45 degrees, both of these measurements indicate significant limitation of motion.  Today’s VASRD assigns a 30% rating for cervical flexion of 15 degrees or less and this can be considered to be a severe limitation of motion.  Today’s VASRD also assigns a 20% rating for cervical flexion greater than 15 degrees but not greater than 30 degrees and this can be considered to be a moderate limitation of motion.  The Board adjudged that although the MEB NARSUM examination and the physical therapy ROM measurements were further away in time from the date of separation, they occurred prior to separation, and therefore had the higher probative value.  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 chronic neck pain condition coded 5290.

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 (635-40) for rating the chronic mandible and neck pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic mandible and neck pain condition, the Board by a vote of 2:1 recommends that each joint be separately adjudicated as follows:  an unfitting chronic mandible pain condition coded 9905 and rated 20% IAW VASRD §4.150 and an unfitting chronic neck pain condition coded 5290 and rated 20%, IAW VASRD §4.71a.  The single voter for dissent, who recommended an unfitting chronic mandible pain condition coded 9905 and rated 20% IAW VASRD §4.150 and an unfitting chronic neck pain condition coded 5290 and rated 10%, IAW VASRD §4.71a, did not elect to submit a minority opinion.  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 Mandible Pain	9905	20%	
Chronic Neck Pain	5290	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130329, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB),

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130018776 (PD201300132)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA