RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01791
BRANCH OF SERVICE:  Army	BOARD DATE:  20150406
SEPARATION DATE:  20050622

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard Reserve E-8 (Food Service Specialist) medically separated for chronic neck pain.  The 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 L3 profile and referred for a Medical Evaluation Board (MEB).  IAW AR 40-501, the MEB forwarded to the Physical Evaluation Board (PEB) “cervicalgia without cervical myelopathy/C3-7 congenital/degenerative cervical spondylolysis” as failing to meet retention standards.  The MEB also forwarded four other conditions (see rating chart below) as meeting retention standards, for further PEB consideration.  The Informal PEB adjudicated the chronic neck pain as unfitting, rated 20%.  The PEB likely applied criteria from the Veterans Affairs Schedule for Rating Disabilities (VASRD) as well as AR 635-40.  In addition, the PEB found the condition existed prior to service with an undetermined (assumed 0%) deduction for this factor.  The remaining four conditions were found to be not unfitting and not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am in constant pain.  It was recommended that I do not have surgery when I was examined at Ft. Sam Houston, TX.  Once I was discharged, the VA downgraded my disability rating from 20% to 10%.  I was given a lump sum, however I feel it was inadequate to compensate for the pain that I am in and the benefits that I was forced to give up had I been allowed to retire.  I am also having medical problems now that I was not having at that time, which I attribute to my military service.  See attached.”

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:

Admin Corrected IPEB – Dated 20050608	VA* - (~5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5242	20%	DDD Cervical Spine	5243	10%	20051116	
Mild Intermittent Asthma	Not Unfitting	Asthma	6602	NSC	20051116	
Essential Hypertension	Not Unfitting	Hypertension	7101	NSC	20051116	
Seasonal Allergic Rhinitis	Not Unfitting	No VA Placement	
Hyperlipidemia	Not Unfitting	No VA Placement	
Other x 0 (Not In Scope)	Other x 1	
RATING:  20%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20060104 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Neck Pain.  Treatment records evidence that the CI sustained an elbow to the head while playing basketball in 1988, was evaluated in the emergency department, and treated for cervical strain.  The records were silent for neck pain until 01 January 2004 when he presented with reports of upper back pain and tingling in his finger and toes.  The CI reported that the pain was worse with wearing a vest.  The examiner noted a prior diagnosis of cervical 3-4 (C3-4) herniated disc.  The physical examination demonstrated full range-of-motion (ROM) in the back.  A magnetic resonance imaging study dated 15 February 2005 confirmed the diagnosis of degenerative disc disease on all  cervical levels, degenerative arthritis at three levels (C3-4,C4-5, C5-6), and a spinal cord fluid cavity (Syrinx) at the C3-4 level.  The narrative summary (NARSUM) noted that the CI was evaluated by neurosurgery on 23 March 2005 and was identified as not being a surgical candidate.  He was referred to physical therapy and pain management.  At the time of the NARSUM examination the CI reported 3/10 neck pain and 5/10 with strenuous activity.  He had intermittent tingling in the upper extremities.  The cervical spine and neurological examinations were normal.  Diagnoses of cervicalgia without myelopathy C3-7 and congenital/degenerative cervical spondylosis were rendered.  At the VA Compensation and Pension examination performed 5 months after separation, the CI reported constant 3-4/10 neck pain with increased pain twice a month to 8-9/10.  He treated the pain with rest and heat.  The pain was worse with driving rough terrain, using side view mirrors, and strenuous physical activities.  The examination demonstrated slightly decreased cervical ROM with normal neurologic and motor examinations.  

The goniometric 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)	PT ~2 Mo. Pre-Sep
Conducted for MEB
(20050413) p.45	VA C&P ~5 Mo. Post-Sep
(20051116) p.91	
Flex (45 Normal)	31,31,33 	40	
Extension (45)	54,54,57	30	
R Lat Flexion (45)	36,41,40	40	
L Lat Flexion (45)	41,41,42	30	
R Rotation (80)	68,67,70	35	
L Rotation (80)	55,60,57	38	
Combined (340)	#	#	
Comment			
§4.71a Rating	10%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB adjudicated the “chronic neck pain secondary to C3 through C7 degenerative cervical
Spondylosis with herniated nucleus pulposus at C3 C4” condition as unfitting with a disability rating of 20% for cervical flexion to 30 degrees.  The VA rated the condition at 10% for cervical spine flexion to 40 degrees.  The Board considered whether the evidence supported a higher than 20% rating.  There was no evidence of forward flexion of the cervical spine of 15 degrees or less or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months for a higher rating.  The Board determined that the preponderance of evidence did not support an unfitting cervical radiculopathy for a separate radiculopathy rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 20% for the chronic neck pain condition was appropriately recommended in this case.  The Board concluded therefore that this condition could not be recommended for additional disability rating.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that mild intermittent asthma, essential hypertension stage 1, seasonal allergic rhinitis, and hyperlipidemia were 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 conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.   There was no performance based evidence from the record that any of these conditions 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 any of the contended 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 chronic neck pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended mild intermittent asthma, essential hypertension Stage 1, seasonal allergic rhinitis, and hyperlipidemia 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 20131025, 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, AR20150011073 (PD201301791)

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