RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01535
BRANCH OF SERVICE:  Army	BOARD DATE:  20150121
SEPARATION DATE:  20040927

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Food Service Specialist) medically separated for neck pain.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty although he was authorized to perform alternate physical fitness testing.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  Neck pain was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded left arm pain for PEB adjudication.  The Informal PEB adjudicated chronic neck pain secondary to herniated nucleus pulposus C3-4 as unfitting rated 10% with application of the VA Schedule for Rating Disabilities (VASRD).  The remaining left arm pain condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “From the very 1st time I went to see the military Doctors with my health issues , No one could seem to give a specific diagnosis for my conditions , they would put me on MED’s and for the most part send me back to work.  It wasn’t until I was going thru [sic] the MED board that I was able to get a specific diagnosis.  I had been going back and forth to the doctors since 1998, I was released from the Army in 2004.  To add to that, I was found ‘unfit for duty’ due to my medical situation and the meds I needed to take, but I was only given a 10% disability rating, but I had soldiers that were discharged with higher ratings, and less ailments , as well as less time in service. Something about that is not right.”

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 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 20040707	VA* - (7 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain secondary to Herniated C3-4 Nucleus Pulposus	5243
5099-5003	10%	Degenerative Disc Disease Cervical Spine, C4-5 (Neck Pain)	5242	10%	20050505	
Left Arm Pain	Not Unfit	Radiculopathy Left Upper Extremity	8599-8515	10%	20050505	
Other x 0 (Not in Scope)	Other x 4	
Rating:  10%	Combined:  30%	
*Derived from VA Rating Decision (VARD) dated 20050922

ANALYSIS SUMMARY:

Chronic Neck Pain Secondary to Herniated Nucleus Pulposus, C3-4.  According to service treatment records and the MEB narrative summary, the CI had intermittent neck pain and stiffness since approximately 1997 without a history of injury.  The neck pain was associated with numbness and tingling into the left arm discussed below.  A magnetic resonance imaging (MRI) scan in July 2001 disclosed a herniated intervertebral disc at the C4-5 level.  The rest of the cervical spine was unremarkable.  The CI was treated with injections in 2002 and passed the physical fitness test in September 2002 (per NCO evaluation report).  The CI was involved in a rear end motor vehicle crash on 1 December 2003 with exacerbation of his neck pain and associated left arm symptoms and was treated with narcotic pain medication and physical therapy.  Orthopedic evaluation on 8 January 2004 noted persistent pain with radiating symptoms.  The CI reported the neck pain and pain medications interfered with performance of duties.  On examination, cervical spine flexion was 35 degrees (normal 45), extension 15 degrees (normal 45), lateral flexion 35 degrees to both sides (normal 45), and rotation 45 degrees to both sides (normal 80); combined 210 degrees (normal 340).  There was pain with motion noted and the left trapezius muscle was tender.  The CI did not want surgery and was referred for MEB.

At the VA Compensation and Pension (C&P) examination on 5 May 2005, 7 months after separation, the CI reported continued neck pain with decreased range-of-motion (ROM).  The CI indicated that he could function with medication and that the neck pain did not cause incapacitation.  On examination, posture was normal.  There was no evidence of radiating pain at the time of examination but there was tenderness and spasm.  ROM was slightly worse but the examiner did not record motion past the onset of subjective report of pain.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck pain 10%, coded 5243-5099-5003 (intervertebral disc syndrome-degenerative arthritis) citing slight limitation of motion due to pain.  The VA rated the C4-5 degenerative disc disease of the cervical spine 10%, coded 5242 (degenerative arthritis of the spine) citing the May 2005 VA C&P examination.  The limitation of motion at the orthopedic MEB examination supports a 10% rating.  There was no indication of spasm altering gait or spinal contour for consideration of the next higher rating.  There were no incapacitating episodes requiring bed rest prescribed by physician to support a minimum rating under the alternate rating formula 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 neck pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left arm pain condition was not unfitting.  
The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

The CI’s pain was associated with numbness and tingling into the left arm.  A MRI scan in July 2001 disclosed a herniated intervertebral disc at the C4-5 level with severe narrowing of the left C4-5 neuroforamina (the bony space through which the cervical spinal C5 nerve root courses).  The rest of the cervical spine was unremarkable (remaining levels with no herniated discs or foraminal narrowing).  A physical medicine and rehabilitation examination on 10 June 2002 noted mild left biceps muscle weakness consistent with a left C5 radiculopathy and the results of the MRI.  The CI was treated with injections in 2002 and passed the physical fitness test in September 2002 (per NCO evaluation report).  A clinic appointment 2 July 2003 recorded mildly decreased left hand grip with intact dexterity and reflexes.

As previously noted, the neck pain was aggravated by a motor vehicle crash on 1 December 2003.  At the time of a follow-up evaluation in the emergency department on 2 December 2003, the CI denied any radicular symptoms, but later that day reported left arm pain.  A physical therapy note on 9 December 2003 records no radiating pain or weakness.  On examination left upper extremity strength was normal.  Orthopedic evaluation on 8 January 2004 noted persistent pain with radiating symptoms.  On examination, reflexes were normal and symmetric.  There was mild weakness of the left wrist and hand (C6, C7, C8 levels) but upper extremity strength was otherwise normal.  There was decreased light touch sensation at the left thumb and subjective tingling of the left ring and little fingers.  A physical therapy examination on 12 January 2004, noted diffuse mild weakness of the left upper extremity involving muscles innervated by multiple cervical spine nerve roots (C5, C6, C7, C8, T1).  At the time of electrodiagnostic testing (electromyogram [EMG] and nerve conduction velocity [NCV]), 7 April 2004, the examiner recorded diffuse mild weakness of the left upper extremity (C4, C5, C6, C7, C8, T1); however, the examiner also noted “negative weakness left upper extremity with gripping and lifting.”  EMG of the left upper extremity was normal indicating no evidence of nerve root injury or radiculopathy.  NCV of the ulnar and median nerves was also normal.

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.  Examinations reflected variable mild weakness in the left upper extremity which did not correlate with the known level of the herniated cervical disc.  The EMG did not disclose evidence of a radiculopathy or peripheral nerve problem.  The Board therefore concluded the evidence in this case did not show that motor weakness existed to any degree that could be described as functionally impairing.  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 left arm pain 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.  In the matter of the chronic neck pain secondary to herniated nucleus pulposus C3-4 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  
In the matter of the contended left arm pain condition, 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 20130917, 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 XXXXXXXXXXXXXXX, AR20150009853 (PD201301535)

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			 
CF: 
(  ) DoD PDBR
(  ) DVA