RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2013-01764
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20140829
SEPARATION DATE:  20040415

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Air National Guard TSgt/E-6 (3P07/Security Forces) medically separated for chronic neck pain, associated with headaches.  The CI’s condition did not adequately improve to meet the physical requirements of his Air Force Specialty, or satisfy physical fitness standards.  He was issued a P4/U2/H2 profile and underwent a Medical Evaluation Board (MEB).  The neck condition was found medically unacceptable, and was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  The MEB also identified and forwarded three other conditions.  The Informal PEB (IPEB) found the chronic neck pain unfitting, and rated it 20%, IAW the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not-unfitting.  The CI appealed to the Formal PEB (FPEB) and the Secretary of the Air Force Personnel Council (SAFPC), both of which affirmed the IPEB findings and recommendation.  The CI was then medically separated.

CI CONTENTION:  “Because I required surgery to repair the damage done.  As per regs at that time if the member required further surgery, they were to be placed on TDRL status for a period 1 year + 30% rating, then reevaluated at a years time. This did not occur.”

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 is addressed below.  The not-unfitting shoulder and carpal tunnel syndrome conditions were not contended; and, thus are not within the DoDI 6040.44 defined purview of the Board.  These, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Air Force FPEB – dated 20030902	VA* – (exam was 1 week Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5290	20%	DDD, Cervical Spine…	5243	30%	20040422	
Other x 2 (Not in Scope)	Other x 17 (Not in Scope)		
Combined:  20%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20050125 (most proximate to date of separation) 

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that he should have been placed on the Temporary Disability Retired List (TDRL).  It is noted for the record that the Board has neither the jurisdiction nor authority to scrutinize or render opinions in regard to this matter. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of Disability Evaluation System fitness and rating determinations, based on severity at separation.

Chronic Neck pain, associated with Headaches.  In June 2002, the CI injured his neck while lifting a duffel bag.  After the injury, he had pain in the neck and right upper extremity (RUE).  On 1 October 2002, the CI underwent surgery on his cervical spine.  After surgery, he had a good response and relief of major symptoms.  In March 2003, another neck injury occurred.  Magnetic resonance imaging at that time showed degenerative disc disease at C5-C6, spinal canal stenosis and mild neural foraminal stenosis.  He was treated with muscle relaxers and pain medication.  The surgeon was reluctant to perform repeat surgery.  Due to persistent neck pain, an MEB was initiated.  The MEB narrative summary was dictated on 9 June 2003.  The CI reported neck pain and stiffness; as well as weakness, numbness and tingling in the RUE.  He also complained of chronic daily headaches, which had been occurring since the neck ailments began.  Physical examination revealed limited cervical range-of-motion (ROM) in all directions.  The CI reported significant pain with any minor changes in neck position.  He had normal gait and moved all extremities well.  Neurological exam showed decreased motor strength (4/5) of the right biceps and right shoulder abductors.  The other muscles tested were normal for tone and strength.  Sensation, deep tendon reflexes and cranial nerves were intact.  There was no atrophy of the upper extremities.

On 25 June 2003, the Air Force IPEB found him unfit and assigned a disability rating of 20%.  The CI did not accept the IPEB findings and requested a formal hearing.  The FPEB found him unfit at 20%, affirming the findings and recommendations of the IPEB.  The CI did not accept the FPEB findings, and appealed to the SAFPC.  In October 2003, the CI underwent a second surgical procedure on his cervical spine.  Ten days later, the CI was seen by a civilian doctor in Great Falls, Montana who had performed the two spinal surgeries.  The neck pain was gone.  The CI reported increased movement of his neck without any discomfort.  Four months later, in February 2004, he returned to the civilian doctor again for a complaint that his neck pain had returned.  Cervical ROM testing revealed that at 50% of neck flexion, pain developed and restricted his motion and 50% in extension, until pain restricted his motion.  His bilateral lateral bending was 30% and bilateral rotation of 60% if done slowly.  Bilateral upper reflexes were bicep 1+, brachioradialis 2+ and triceps 1+.  Sensory of upper extremities showed no abnormality.  In March 2004, the SAFPC affirmed the PEB findings.  The CI was separated from service on 15 April 2004.

On 22 April 2004, a week later, he had a VA Compensation and Pension (C&P) examination.  At that exam the spine showed normal contour.  There was painful motion and tenderness to palpation.  Forward flexion of the neck was 35 degrees.  The CI stopped at 35 degrees due to pain.

The Board carefully reviewed all available evidence and directs attention to its rating recommendation.  The VA utilized diagnostic code 5243 (intervertebral disc syndrome) to rate the spine at 20%.  The Air Force PEB chose diagnostic code 5290 (spine, limitation of motion of, cervical) and assigned a disability rating of 20%.  The neck pain and the headaches were bundled together and treated as a single unfitting condition.  Therefore, the Board must determine if neck pain and headaches can be reasonably justified as separately unfitting.  If this is determined, then apply a separate rating recommendation for each condition IAW the VASRD.  After due deliberation, the Board agreed that the evidence does not support a conclusion that chronic neck pain and headaches would have separately rendered the CI unable to perform his required military duties.  Therefore, the Board did not find each condition reasonably justified as separately unfitting and does not recommend a separate disability rating for these conditions.  Additionally, the CI’s pain was in a region of the body involving neck and head.  The Board also concluded that it was appropriate for the neck pain to be bundled with the head pain and treated as a single unfitting condition.

The Air Force PEB and the VA chose different coding and rating options for the cervical spine condition.  The Air Force PEB utilized the VASRD 2003 coding and rating standards for the spine, which were subjectively based on the rater’s opinion regarding degree of severity.  These standards were in effect at the time of the FPEB (2 September 2003).  The VA utilized the current VASRD coding and rating standards for the spine, which are more objective utilizing ROM to determine impairment; these standards were in effect at the time of the CI’s date of separation.  IAW the PDBR’s DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation; therefore, the current VASRD standards.

The April 2004 C&P examination was conducted a week after separation.  At that exam, combined cervical ROM was 160 degrees.  IAW the VASRD §4.71a, a 20% rating is warranted when combined cervical ROM is not greater than 170 degrees.  After a thorough review of the evidence, the Board determined that a disability rating of 20% was appropriate.  The Board tried to find a path to a higher rating, using other codes which could be applied to the chronic pain condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling condition which would justify a higher rating.

The Board considered whether there was additional functional loss due to pain, flare-ups, deformity, tenderness, arthritis, loss of motion on repetitive use, weakened movement, excess fatigability or incoordination; IAW the legal ruling from DeLuca v. Brown (1995).  The Board determined that there was insufficient evidence of additional functional loss due to those additional factors (listed above).

The Board also considered the matter of cervical peripheral neuropathy.  The CI clearly had neurological symptoms.  However, after thorough review of all the information in the record, the Board found insufficient evidence of a clinically significant neuropathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 20% equal to the FPEB’s determination for the unfitting chronic neck pain, associated with headaches.  However, due to DoDI 6040.44 requirement for this Board to apply the VASRD in effect at the CI’s date of separation a VASRD code change is required.  Thus, the Board recommends code 5242 (degenerative arthritis of the spine) IAW current §4.71a criteria which went into effect 26 September 2003 prior to the CI’s date of separation on 15 April 2004.

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 5242, IAW §4.71a of the VASRD that was in effect at the time of separation.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, 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, associated with Headaches	5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130923, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SAF/MRB

Dear XXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-01764.

	After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended modification of your assigned disability rating without re-characterization of your separation with severance pay. 

	I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.  The office responsible for making the correction will inform you when your records have been changed.

Attachments:
1.  Directive
2.  Record of Proceedings

cc:
SAF/MRBR