RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301367
BRANCH OF SERVICE:  Army		BOARD DATE:  20140225
SEPARATION DATE:  20041016

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (31F/Network Switch Operator) medically separated for chronic neck pain.  During a deployment to Iraq, the CI sustained a fall resulting in neck pain with numbness and tingling on the right side of his body.  He was medically evacuated from theater for further evaluation and treatment.  After an extensive work up, it was determined the CI was not a surgical candidate and his condition 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 profile and referred for a Medical Evaluation Board (MEB).  The chronic neck pain, characterized as “neck pain with cervical degenerative disc disease and bilateral radiculopathy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated “chronic neck pain due to cervical degenerative disc disease, without significant neurological abnormality” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI appealed to the Formal PEB (FPEB), which affirmed the PEB finding and rating.  The CI further rebutted the FPEB finding to the US Army Physical Disability Agency, and that agency affirmed the prior IPEB finding.  The CI’s case was finalized and he was separated.

CI CONTENTION:  “My head and neck injuries wasn’t [sic] rated correctly.  Also, my other condition should have been looked at and rated.  Not just degenerative disc disease.  It was caused by something.  My spine was compressed when I fell on my head.”

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 chronic neck pain is addressed below.  The Board attributes the CI’s contention for “other condition” as bilateral radiculopathy as cited by the MEB.  Neither the MEB or PEB mentioned a “head” condition and therefore the CI’s contended head condition is not within the 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:

USAPDA – Dated 20041014 
(citing PEB findings dated  20040730 and 20040908)	VA -  based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain without Significant Neurological Abnormality	5299-5242	10%	Cervical Spine Degenerative Disc Disease	5243	10%	STR	
			Right C6 Radiculopathy	8515	10%	STR	
			Left C6 Radiculopathy	8515	10%	STR	
No Additional MEB/PEB Entries	Other x 26	STR	
Combined:  10%	Combined:  100%	
Derived from VA Rating Decision (VARD) dated 20070706 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s implied contention for ratings of his bilateral upper extremity radiculopathy condition.  This condition was identified and forwarded by the MEB, and although the PEB form did not explicitly state that radiculopathy was not unfitting, its reference to “without significant neurological abnormality” represents (in the Board’s view) a de facto determination of not unfit.  The Board must emphasize that the disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that this contested condition was most likely incompatible with military service, a disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

Chronic Neck Pain Condition.  While playing football on 15 August 2003 during an Iraq deployment, the CI fell on the right side of his head.  He resumed playing, but later developed neck pain, right arm weakness and tingling in his fingers.  He was medically evacuated to Germany where evaluation by a neurologist on 20 August revealed “prominent giveway and pain behavior with testing of the right upper and lower extremities; however, strength is clearly 5/5.”  He was returned to CONUS for rehabilitation, where he continued to complain of right neck pain with radiation to the right upper extremity and general weakness of the right upper extremity.  An initial magnetic resonance imaging (MRI) study was normal.  Electrophysiologic studies showed no evidence of right upper extremity radiculopathy.  At a physical therapy (PT) visit on 10 October 2003 (12 months prior to separation), the examiner noted that “while in the waiting area no significant apprehension with cervical range.”  During the examination however, pain and guarding appeared to limit neck motion.  Examination also noted “positive superficial tenderness globally with apparently volitional spasm.”  Muscle strength testing of the right upper extremity showed apparent weakness, but in the context of “cogwheel or volitional release.”  Sensory findings were normal.  The examiner concluded that the prognosis was poor for full return to duty due to “possible secondary gain issues.”  At a follow-up PT evaluation on 4 November 2003, cervical range-of-motion (ROM) was “grossly within normal limits.”  An examination by a neurologist on 17 November 2003 noted normal muscle strength, while an orthopedist on 23 December 2003 noted mild weakness of the right hand and wrist.  A neuropsychological evaluation on 24 November 2003 and 27 January 2004 was performed to assess for possible traumatic brain injury.  In addition to findings of cognitive deficits and emotional symptoms, scores on motor function tests indicated right-sided impairment in upper extremity strength, speed and fine motor dexterity.  However, the examiner concluded that testing outcomes were most consistent with malingering (i.e. effort was involved in producing poor performance). It was also stated: “Although results indicate the presence of symptom exaggeration, they do not necessarily exclude some actual impairment.”  The commander’s statement noted that “his conduct while assigned to this company raises suspicions about the validity of his conditions.”  

At a neurosurgical evaluation on 23 March 2004 (7 months prior to separation) the CI complained of neck pain radiating to his shoulder and down the right upper extremity to the 3rd and 4th digits with numbness, tingling and weakness.  Symptoms were worsened by moving or turning his head and neck side to side.  A very detailed examination noted normal gait, upper extremity sensation, muscle strength and deep tendon reflexes.  Muscle tone was normal.  A variety of pathologic signs indicative of spinal cord or peripheral nerve dysfunction were absent.  Although the examiner diagnosed “right greater than left upper extremity radiculopathy” (in addition to cervical spondylosis with degenerative disc disease [DDD]), all objective examination findings were normal.  The neurosurgeon interpreted a repeat MRI as showing degenerative disc disease of C4-C7, but without foraminal or central canal stenosis.  At the separation exam on 30 April 2004 (5 months prior to separation), the CI reported paresthesias of the right shoulder and arm, and some weakness of the right arm and hand.  The physical exam noted decreased ROM of the neck, “especially rotation to the right.”  The neurologic exam was checked “Normal.”  At the narrative summary exam on 30 June 2004 (3 months prior to separation), the CI complained of constant neck pain.  He was noted to perform only office work, mostly just answering the phone.  He performed physical training at his own pace.  Electrophysiologic studies on 7 July 2004 suggested evidence of right greater than left “C6 root lesions.”  A physical examination by the neurologist was not reported.

The 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)	Neurosurg ~7 Mo. Pre-Sep	PT ~4 Mo. Pre-Sep	
Flex (45 Normal)	30	10	
Extension (45)	60	40	
R Lat Flexion (45)	20	10	
L Lat Flexion (45)	20	30	
R Rotation (80)	60	45	
L Rotation (80)	60	40	
Combined (340)	250	175	
Comment	+painful motion		
§4.71a Rating	20%	30%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5242 code (degenerative arthritis of the spine).  The VA also rated the condition at 10%, but used the 5243 code (intervertebral disc syndrome).  There is a disparity between the neurosurgical and PT ROM measurements with implications for the Board's rating recommendation.  The Board deliberated the probative value of these evaluations, and carefully reviewed the entire file for corroborating evidence from the period preceding separation.  In debating these exams, Board members considered that the neurosurgeon provided substantially more helpful details compared to the physical therapist (who only provided ROM).  Clinical evidence of symptom exaggeration from multiple providers was also debated; for example, “give way” strength on muscle testing, volitional spasm, superficial tenderness, and the absence of apparent pain and guarding while in the waiting room (but which appeared in the exam room) were noted.  The neuropsychologist's conclusions and commander's statement were also deliberated.  While the Board agreed that the PT ROM measurements were not consistent with the diagnostic and clinical pathology in evidence and should be assigned lower probative value than the neurosurgeon’s exam, the inconsistencies just elaborated also challenged the Board members interpretation of the neurosurgeon's ROM measurements.  While flexion on that exam supported a 20% rating, the Board majority concluded that the evidence at hand did not overcome reasonable doubt with respect to supporting  that rating, and agreed that the condition was most accurately depicted by the 10% rating IAW VASRD §4.71a criteria.  All members agreed that a higher rating could likewise not be achieved under the formula for rating intervertebral disc disease based on incapacitating episodes.  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 chronic neck pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that right and left upper extremity 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.  While the CI experienced radiating pain to the right upper extremity, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Although a study detected electrophysiologic evidence of affected C6 nerve roots, the detailed neurosurgical exam found no evidence of muscle weakness.  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.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  The radiculopathy condition was not specifically profiled or implicated in the commander’s statement.  The condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that right or left upper extremity radiculopathy 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 right and left upper extremity radiculopathy contended condition and so no additional disability rating is 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 and IAW VASRD §4.71a, the Board, by a vote of 2:1, recommends no change in the PEB adjudication.  The single voter for dissent did not elect to submit a minority opinion.  In the matter of the contended right and left upper extremity radiculopathy conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Neck Pain	5299-5242	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXX, AR20140013954 (PD201301367)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl