RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX	CASE:  PD1300166
BRANCH OF SERVICE: Army	BOARD DATE:  20130618
SEPARATION DATE:  20060525

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PV1/E-1(15U/Trainee) medically separated for a neck problem.  The CI injured his neck during a training exercise in advanced individual training.  Despite surgery, the neck could not be adequately rehabilitated to meet the physical requirements of completing his Military Occupational Specialty training or satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The neck condition, characterized as herniated cervical disc C6-7, cervacalgia, and radiculopathy was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated chronic neck pain by combining the MEB conditions of herniated cervical disc C6-7 and radiculopathy as unfitting rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI non-concurred with the PEB findings, but waived a formal hearing and chose not to submit a rebuttal to the PEB.  The US Army Physical Disability Agency (USAPDA) reviewed the case and upheld the PEB’s decision.  The CI was then medically separated.

CI CONTENTION:  The CI writes: “I haven’t been able to work much and have had 3 neck surgeries since my injury.  Fused from C4 – C7 and have neuropathy of the upper extremities cause of bad neck.”

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 neck condition, to include the radiculopathy is 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.

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 (DES) 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 (DVA), operating under a different set of laws.  The Board considers DVA 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.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The Board did receive additional information from the CI prior to completion of this case.  This new information was reviewed and considered in the final adjudication of this case.

RATING COMPARISON:

Service IPEB – Dated 20060501	VA - (3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5241	10%	Surgical Diskectomy and Fusion, C6-7, to Include Claim for Spondylosis and Cervicalgia*	5241	20%	20060821	
No Additional MEB/PEB Entries	Other x 2	20060821	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20060926 (most proximate to date of separation [DOS]).  *The VA included the radiculopathy in a rating for the left shoulder.

ANALYSIS SUMMARY:  The DES is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service connected by the DVA but not determined to be unfitting by the PEB.  However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.

Herniated Cervical DISC C6-7 with Radiculopathy.  The CI injured his neck on 22 September 2005 while attempting to free himself from a hold during a combative training maneuver.  The CI experienced pain in the base of his neck, almost immediately followed by intermittent radiation of pain to his left upper extremity (LUE).  An X-ray examination performed on the day of the injury was normal.  The CI was evaluated at the Naval Medical Center (NMC) and referred to physical therapy (PT).  Magnetic resonance imaging obtained on 4 October 2005 revealed left lateral disc protrusion at C2-3, C3-4, and C5-6.  There was mild to moderate encroachment on the left of the C3 and C4 nerves.  There was disc protrusion without significant narrowing at C4-5.  C6 level was normal.  There was a moderate sized posterior disc protrusion with mild narrowing of the spinal canal and effacement of the ventral cord at C6-7; the neuroforamina were widely patent.  The CI had a neurosurgery consult on 27 October 2005.  On 16 December 2005, he underwent a C6-7 anterior cervical discectomy and fusion with allograft and plate, followed by convalescent leave until 26 January 2006.  The CI continued to experience pain after surgery which did not respond adequately to therapy.  He was evaluated in neurosurgery on 8 February 2006 and the etiology of his pain was indeterminate.  He had presented the emergency department several times for pain control since surgery.  The CI reported a new finding of “knots” in his LUE that were tender to the touch.  These were determined to be secondary to phlebitis and treated with antibiotics.  His neurological examination was normal although the range-of-motion (ROM) examination was reduced, but no pain was noted.  A repeat MRI that same day was remarkable only for expected post-operative changes without evidence of nerve impingement.  The 14 February 2006 narrative summary was dictated by the neurosurgeon based on an examination performed a week earlier (above).  The CI reported that he did well for about 2 weeks after surgery, but then started experiencing pain that was not relieved by medications.  However, it was noted that he had run out of his medications.  The examiner noted that the surgical incision was well healed.  There was “good strength and sensation” in the LUE.  His gait was normal.  There was a negative Hoffman and Spurling test (tests to assess for radiculopathy).  No clonus was present and deep tendon reflexes were normal, with augmentation.  The CI was evaluated in PT on 29 March 2006 for ROM testing for the MEB.  The results are displayed in the chart below.  The CI was seen again on 31 March 2006 and reported that he was having pain when turning to his left side.  He also reported radiation to his shoulder and numbness in his 1st and 2nd digit in his left hand.  The CI had a “painful burning sensation” (6 out of 10) with left shoulder cap stretch and refused LUE exercises.  The CI followed-up in the neurosurgery clinic on 23 May 2006 and continued to report pain with radiation (to the medial three digits).  The CI reported no improvement since his surgery.  The VA Compensation and Pension (C&P) examination performed on 21 August 2006, 3 months following separation, reported that the CI was in constant pain since his surgery.  The CI reported that he was no longer taking medications because he had not tolerated them in the past.  The examiner noted that the CI had no incapacitating episodes in the previous year.  The CI avoided running, physical training and sports.  He could not lift objects weighing more than 15-20 pounds.  The ROM examination is displayed in the chart below.  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.

Cervical ROM
(Degrees)	PT~2 Mo. Pre-Sep 	PT ~2 Mo. Pre-Sep
	VA C&P ~3 Mo. Post-Sep
	
Flex (45 Normal)	60	20	30	
Extension (45)	10	15	15	
R Lat Flexion (45)	35	30	15	
L Lat Flexion (45)	35	20	15	
R Rotation (80)	45	50	60	
L Rotation (80)	45	60	60	
Combined (340)	230	195	195	
Comment		Minimal pain at end ranges in all directions. left shoulder FROM	“Pain reported at each extremes.”	
§4.71a Rating	10%	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and the VA coded the chronic neck pain condition 5241 for spinal fusion.  The PEB assigned a 10% disability rating, likely applied the USAPDA pain policy and the VA assigned a 20% rating.  ROM evidence in both proximate evaluations supported a 20% disability rating, although the PT examination just prior to the MEB examination supported a 10% rating.  There is no pathway to any higher rating under this code as ankylosis of the entire cervical spine (40%) was not present.  The Board also considered rating the chronic neck pain condition using the VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The criteria are based on the number of incapacitating episodes in the prior 12 months requiring bed rest prescribed by a physician.  No documented physician directed bed rest was evidence in the service treatment records or at the time of the C&P examination.  The Board concluded the evidence did not support a higher rating using this alternate formula providing no additional benefit to the CI.  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.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that cervical radiculopathy was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The CI had a herniated disc with radicular pain treated with surgery, and there were symptom of radiating pain documented in the treatment records; however, examinations indicated normal strength, reflexes and gait and the sensory changes did not affect his job.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The radiculopathy was not profiled; however, it was mentioned in the commander’s statement.  It was determined to be medically unacceptable.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that radiculopathy condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the cervical radiculopathy contended condition and so no additional disability rating are recommended.

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 neck pain condition, the Board unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended cervical radiculopathy condition, the Board unanimously agrees that it cannot recommend an additional rating for peripheral nerve impairment.  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, effective as of the date of his prior medical separation:
  
UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Neck Pain Condition	5241	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130403, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB / xxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for xxxxxxxxxxxxxxxxxxxx, AR20130021865 (PD201300166)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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