RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD1301496
BRANCH OF SERVICE: Army	BOARD DATE:  20140507
SEPARATION DATE:  20060919

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (52C/Utility Equipment Repair Person) medically separated for a neck condition.  The neck condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3/L3/S1 profile and referred for a Medical Evaluation Board (MEB).  The neck condition, characterized as “chronic neck pain with evidence of degenerative disc disease (DDD)”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded nine other conditions for PEB adjudication.  The Informal PEB adjudicated “chronic neck pain w/degenerative changes” as unfitting, rated 10%, with application of the VA Schedule for Rating Disabilities (VASRD).  The remaining nine conditions were adjudicated to be not unfitting. The CI made no appeals and was medically separated.

CI CONTENTION: The CI writes: “PTSD/slipped disc & neck pain/shoulder pain/back pain/sleep apnea/depression/anxiety attacks. These were on my MED board process but were not awarded to me.  The main reason for medical discharge is for disc compressions/slipped & bulging.  I had x-ray done with Colorado Springs Spine Center in which was used to process my discharge but was not rated.  With VA I was rated 50% disability”.

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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20060804	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain w/Degenerative Changes	5299-5242	10%	Chronic Neck Pain w/DDD	5237-5243	0%	STR	
OSA	Not Unfitting	Sleep Apnea	6847	50%	STR	
PTSD	Not Unfitting	PTSD	9411	0%		
Depression	Not Unfitting	No VA Entry			STR	
No Additional MEB/PEB Entries in Scope	Other x 0	STR	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20070622 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Neck Pain/Degenerative Changes.  The first recorded visit in evidence for neck pain was on 3 May 2004 when the CI presented with a 9-month history of neck and back pain aggravated by the wear of protective gear.  At a 9 November 2005 primary care visit, he noted both had been present for 8 years.  He was managed conservatively and allowed to re-enlist.  On 30 November 2005, a magnetic resonance imaging (MRI) of the thoracic spine was normal.  An MRI of the cervical spine 2 weeks later was significant for multilevel DDD without frank herniation or impingement of the central canal or nerve roots.  Findings consistent with spasm were present.  He was evaluated in orthopedics on 16 January 2006 and not thought to have a condition amendable to surgery.  Electrodiagnostic studies and the physical examination were negative for a neuropathy on 23 February 2006.  The orthopedic MEB narrative summary (NARSUM) was dated 7 March 2006, 6 months prior to separation.  The CI reported morning pain and stiffness, pain with driving, and occasional pain radiating down his arm (side not specified) with sneezing or coughing.  The neurological examination was normal.  The range-of-motion (ROM) was noted as normal for flexion, extension, and rotation; but also noted to be reduced to 90% of normal for rotation.  The Board noted that one of the rotation comments should have been for side bending, but it is not clear which from the note.  However, a 13 February 2005 note shows a reduction in rotation consistent with the above note and normal forward flexion and lateral flexion with a 5 degree loss of extension.  Rotation to the left and right was reduced 5 and 10 degrees, respectively.  The general NARSUM was dated 14 June 2006, 3 months prior to separation.  He reported benefit with physical therapy and some limitations in activity, primarily an inability to play golf.  The examination was reported as painful; signs of non-organic pain were absent.  It was determined that he was unlikely to improve if he continued military service.  The applicant failed to report for his VA Compensation and Pension (C&P) exam, and none were found following his discharge in 2006.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both relied on the service treatment records for the adjudication.  The PEB coded the neck condition as 5242, degenerative arthritis and rated it at 10%.  The VA service-connected the neck, but did not assign a rating since the CI did not appear for his C&P examination.  The codes 5237 and 5243, cervical strain and intervertebral disc syndrome respectively, were used.  The Board noted that the minimal limitation in motion and positive radiographic findings support a 10% rating; no route to a higher rating was supported by the evidence.  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 neck condition.

Contended PEB Conditions.  The CI also contended for obstructive sleep apnea (OSA) and a mental health condition which he listed as posttraumatic stress disorder (PTSD), anxiety and depression.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended OSA and MH conditions were 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 OSA condition was profiled and judged to fail retention standards.  However, it was not implicated in the commander’s statement.  In its adjudication, the PEB noted “Re-evaluation in Dec 05 found moderate sleep apnea responding to CPAP at 7 cm water, with improvement of daytime drowsiness.  Even though found to fail retention standards by the MEB, based on your rank, PMOS, and the generally expected capabilities and resources available in a mature theater, the condition was found to be not unfitting and was not rated.”  The Board observed that even though a condition may fail retention standards, it is the purview of the PEB to determine if the condition is unfitting considering the rank of the individual and impact of the condition on meeting duty requirements.  The MH conditions of PTSD (a type of anxiety disorder) and depression were evaluated in the MH clinic by a clinical psychologist and found to meet retention standards and not require a profile.  No MH condition was implicated in the commander’s statement.  Both conditions were reviewed by the action officer and considered by the Board.  The preponderance of evidence in the record does not support that either condition significantly interfered with satisfactory duty performance.  The OSA was successfully treated with continuous positive pressure breathing.  Although further treatment for the MH condition was recommended, it was not found to fail retention standards.  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 either of the contended conditions and so no additional disability ratings are recommended.

The Board also considered the appropriateness of the changes in the MH diagnoses and a disability rating recommendation in accordance with VASRD §4.130.  The MEB forwarded the MH diagnoses of chronic PTSD and depression to the PEB for adjudication.  The PEB adjudicated the CI for the same diagnoses.  The Board determined that no MH diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process.  This applicant therefore did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended sleep apnea and MH 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130921, 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, AR20140014462 (PD201301496)

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