RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01448
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141209
SEPARATION DATE:  20040430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Fire Controlman Third Class) medically separated for a neck condition.  This condition could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  “Cervical stenosis status post (s/p) anterior cervical discectomy and fusion (ACDF); chronic pain syndrome with myofascial pain; pain disorder associated with both psychological factors and a general medical condition; mild sleep dysfunction secondary to #2 and 3; tension headache; and bilateral knee pain, status post right knee arthroscopy,” were forward to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated cervical stenosis as Category I (unfitting), rated 10%, with application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be Category II or III as indicated in the rating comparison chart below.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Brain Damage, spinal, knee, poor vision.”  His complete submission is at Exhibit A.

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 20040325	VA* - (~6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical Stenosis…	5243	10%	Cervical Spine, Traumatic & DJD…	5010-5241	10%	20041022	
Mild Sleep Dysfunction	Category II	Sleep Problems, Depression, Nervousness…	9400-9400	NSC	20041022	
Panic Disorder…	Category II					
Chronic Pain Syndrome…	Category II	No VA Entry	20041022	
Bilateral Knee Pain…	Category III	Right Knee, DJD…	5010-5260	10%	20041022	
		Left Knee Condition	5299-5261	NSC	20041022	
Tension Headaches	Category III	Tension Headaches	8199-8100	0%	20041022	
Other x 0	Other x 7	
Combined:  10%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20050126 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Cervical Stenosis Condition.  The CI complains of multiple areas of pain including the neck after a series of falls in early 2002.  He did not report any injuries until several months later.  Over a period of time, he developed neck pain and bilateral upper extremity radicular symptoms.  In January 2003, a cervical spine magnetic resonance imaging study revealed a disc protrusion with bone spur that resulted in a moderate canal narrowing at C6-7.  In February 2003, he underwent a fusion of the C6-7 vertebrae and experienced improvement with decreased neck pain.  His hands felt stronger and looser, with decreased tingling and numbness.  At the MEB narrative summary (NARSUM) examination, dated approximately 3 months prior to separation, the CI reported a bilateral sharp, burning neck pain that was aggravated by extending or lateral rotating his head to either side.  The physical exam findings are summarized in the chart below.

At the VA Compensation and Pension (C&P) exam approximately 6 months after separation, the CI reported 7/10 neck pain that radiated into both arms, stating that the procedure had no benefit.  The pertinent physical exam findings are in the following chart.

The 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 below:

Cervical ROM (Degrees)	NARSUM ~3 Mos. Pre-Sep	VA Ortho ~6 Mos. Post-Sep	
Flex (45 Normal)	Full ROM	35	
Combined (340)	-	105	
Comment	Pos. painful motion; Pos. tenderness to palpation; Normal strength, reflexes and sensation	Pos. painful motion; Reflexes symmetric; Questionable decreased sensation; 10% decrease in grip strength bilaterally	
§4.71a Rating	10%* (PEB 10%)	20% (VA 10%)	
*IAW §4.59 (painful motion)

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the cervical stenosis condition by applying VASRD code 5243 (intervertebral disc syndrome) and rated it 10%.  The VA applied the analogous code 5010-5241 (arthritis due to trauma-spinal fusion) and also rated it 10% citing the ROM measurements documented in the C&P exam.  The Board noted that those ROM measurements are consistent with the 20% rating using the combined ROM criteria IAW the General Rating Formula for Diseases and Injuries of the Spine.  The Board considered the probative value of each exam and noted that the NARSUM was performed 3 months prior to separation while the C&P exam was 6 months after separation.  Although the NARSUM did not contain goniometric ROM measurements it did document full ROM with the presence of painful motion.  The PEB’s 10% adjudication was appropriately based on that exam which was performed 3 months before separation.  The Board considered to probative value of the C&P exam and although it did contain actual ROM values, it was 3 months more remote from separation than the NARSUM and was performed after separation.  There was no evidence available of review that documented any reason for the post-separation worsening documented by the C&P exam.  The Board members agreed that the NARSUM exam was the more probative exam on which to base its rating recommendation.  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 cervical stenosis condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended Category II conditions, sleep dysfunction, pain disorder and chronic pain syndrome, were not unfitting.  The Board’s threshold for countering PEB fitness determinations for Category II conditions requires that the conditions be “reasonably justified” as separately unfitting and therefore, eligible for a disability rating.  The LIMDU document prepared 16 months prior to separation noted the following: 

1. Chronic pain syndrome with myofascial pain syndrome.
2. Pain disorder associated with both psychological factors and a general medical condition
3. Mild sleep dysfunction, likely secondary to #1 & 2.

The profile completed 11 months prior to separation only noted the cervical stenosis s/p fusion condition as duty limiting.  The commander’s statement stated that the CI was working outside of his specialty due to his condition and contained the following summary statement:

“xxxxxxxxxxxxx performs all tasks quickly and requires little supervision in the performance of assigned duties.  He has limited movement and motion with his neck, back and knees could potentially cause more harm to himself or others and I cannot recommend him for retention.”

The Board could not find evidence in the service treatment record that documented any significant interference of the sleep dysfunction, pain disorder and chronic pain syndrome conditions with the performance of duties at the time of separation, nor were any physical findings documented by the MEB or VA examiners which would logically be associated with significant disability.  It should also be noted that the VA did not grant service-connection for these conditions proximate to separation.  After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from any of these conditions were reasonable justified as separately unfitting or integral to the CI’s inability to perform his rating; and, accordingly cannot recommend a separate rating for them.

The Board’s main charge is to assess the fairness of the PEB’s determination that the contended Category III conditions, bilateral knee pain and tension headaches, were not unfitting.  The Board’s threshold for countering PEB fitness determinations for Category III conditions is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations and requires a preponderance of evidence.  The bilateral knee pain and tension headache conditions were not profiled while the knees were implicated in the commander’s statement as causing any duty limitation.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance proximate to separation.  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 contended Category III bilateral knee pain and tension headache conditions and so no additional disability ratings 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 cervical stenosis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended sleep dysfunction, pain disorder and chronic pain syndrome Category II conditions, the Board unanimously agrees that it cannot recommend them for additional disability rating.  In the matter of the contended bilateral knee pain and tension headache Category III conditions, the Board unanimously recommends no change from the PEB determination 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 11 May 15

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN