RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00206
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150203
SEPARATION DATE:  20080310

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Boatswain’s Mate) medically separated for a congenital malformation.  The 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 twice and referred for a Medical Evaluation Board (MEB).  “Cervical root lesions, not elsewhere classified,” “Congenital anomaly, unspecified,” and “Intervertebral disc disorder with myelopathy, lumbar region” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “congenital malformation” as unfitting, rated 30%, but reduced to 20% (existing prior to service reduction) with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions, intervertebral disk disorder with myelopathy and nerve root and plexus disorder with cervical radiculopathy were determined to be Category II conditions.  The CI made no appeals and was medically separated.

CI CONTENTION:  “My condition has gotten worse and it’s hard to concentrate and complete tasks and my regular pain scale 1-10 it’s usually a 7.”

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 20071129	VA - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Congenital Malformation	5238	20%*	Cervical Spondylosis w/DDD and Findings of Congenital Intervertebral Malformation at C1-2	5240	0%**	STR	
Intervertebral Disk Disorder with Myelopathy	Category 2					
Nerve Root and Plexus Disorder w/Cervical Radiculopathy	Category 2	Nerve Root and Plexus Disorder, Upper Extremities	8699-8617	NSC	STR	
Other x 0 (Not in Scope)	Residual Scarring from Suboccipital Craniectomy and Partial Hemilaminectomy of C1	7805	0%	STR	
	Other x 5		
Rating:  20%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20080827 (most proximate to date of separation [DOS]).
*Service took a 10% deduction.
**Increased to 10% effective 20111007 on 20120402 VARD.

ANALYSIS SUMMARY:

Cervical Spine Condition.  Review of the STR indicated that the CI had the onset of right shoulder pain in early 2004 (approximately 4 to 5 months after entry into service).  Initial clinic notes on 1 April 2004 detailed that there was a gradual onset over 2 to 3 months that started at night (with no history of trauma), but later notes indicated the pain began after playing basketball and throwing the ball with this right arm, or while performing push-ups.  Work-up of the persistent pain included imaging (magnetic resonance imaging [MRI]) which showed a congenital fusion of the first two vertebra (C1 and C2) to the base of the skull (occiput), significant narrowing of the opening of the spinal canal into the skull (foramen magnum), arthritis (spondylotic changes) in the upper vertebrae (C2-3 to C4-5), and a cyst (syrinx) in the cervical (neck level) spinal cord.  At the time of the enlistment medical examination there were no symptoms recorded.  At the time of a neurosurgery evaluation on 27 November 2006, the neurosurgeon noted normal strength in the upper extremities except for slight (4+/5) decrease of the right deltoid muscle, and decreased sensation on the distal right thumb.  The CI had no left arm symptoms.  The cervical spine range-of-motion (ROM) was noted to be limited in rotation (right rotation 75 degrees and left rotation 55 degrees; normal 80 degrees).  By January 2007, the neck pain was constant, he was almost completely unable to sleep; and he had pain and twitching in the right arm, shoulder and anterior chest.  A nerve study (NCS/EMG) of the right upper extremity demonstrated abnormal changes indicating a right C5 radiculopathy (“extensive electro diagnostic examination of the right upper extremity shows active on more prominent chronic denervation changes in C5-innervated roots/segments consistent with an active on chronic C5 motor radiculopathy that is at least moderate in degree electrically”).  Medications and physical therapy had not been helpful.  The CI underwent surgery on 25 January 2007, involving removal of bone to enlarge the space for the spinal cord as it exited the skull and for the spinal nerve roots exiting the spine (suboccipital craniectomy and partial hemilaminectomy of C1, right C3-4 foraminotomies, and suboccipital duraplasty).  Post-operative MRI and CT scanning performed in February 2007 demonstrated adequate bony decompression of the occipital cervical junction.  Per the MEB narrative summary (NARSUM) prepared in October 2007, the CI improved but he had persistent neck and arm pain, difficulty sleeping due to pain, episodes of lightheadedness with increased activities such as heavy lifting, and inability to resume his normal work activities.  Also, in September 2007 the CI fell out of formation due to low back pain and spasms, related to low back (thoracolumbar region) discomfort from 2 days earlier when he began to lift heavy items and perform more strenuous work at his job (no mention of neck pain associated with the activities causing the low back pain).  At the time of the MEB NARSUM exam (performed by a neurosurgeon) on 26 October 2007, the CI’s cervical flexion, extension and lateral bending were “within normal limits,” with limitation in rotation (30 degrees to right and 35 degrees to the left) for a combined cervical ROM of 240⁰ degrees (normal 340 degrees; all done without specific goniometric measurements).  His surgical incision (scar) was described as “well-healed,” without any suggestion that it contributed to his unfitness.  The muscle strength of the upper and lower extremities was normal and his gait and station were normal.  He remained hyper-reflexic (increased reflexes) in the upper and lower extremities, and had decreased sensation over the lower, posterior scalp area (“posterior aspect of the suboccipital and left posterior scalp”).  The MEB examination on 6 November 2007 (4 months prior to separation), noted the cervical ROM to be decreased without quantification and increased reflexes of the lower extremities, but no other orthopedic or neurologic findings.  The CI did not report for a VA examination scheduled on 8 August 2008, 5 months after separation.  The first after separation evidence is a VA primary care visit in July 2010 (over 2 years after separation), when the CI reported that he did better for a short period of time after his surgery, but over the previous year he had increasing neck pain and heaviness in his right arm again.  On examination, he had normal (5/5) strength in the upper extremities and normal sensation to light touch.  There was no mention of any problems with the thoracolumbar spine.  At the VA Compensation and Pension (C&P) exam performed in December 2011, over 3 years after separation, the CI complained of mild, intermittent pain; mild paresthesias (sensation of pricking, tingling, or creeping on the skin); and mild numbness of the right upper extremity.  Cervical forward flexion was 45 degrees (normal 45), extension 10 degrees, right lateral flexion 45 degrees (normal 45 degrees), left lateral flexion 30 degrees, right rotation 70 degrees (normal 80 degrees), left rotation 50 degrees with a combined ROM of 250 degrees (normal 340 degrees).  There was no additional limitation following repetitive use.  There was tenderness to palpation in the neck, but it did not result in abnormal gait or contour.  Right elbow flexion and extension strength were decreased (4/5), and sensation in the upper extremities was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the cervical spine condition with code 5238 (spinal stenosis) at 30%, and reduced the rating by 10% because it was determined to be an EPTS (existed prior to service) condition.  The VA initially rated the cervical spondylosis with degenerative disc disease 0% citing the failure to report for a VA examination.  The VA subsequently (by rating decision on 2 April 2012) rated the cervical spine condition (cervical spondylosis with degenerative disc disease and finding of congenital intervertebral malformation at C1-2) at 10% coded 5240 (ankylosing spondylitis) citing the December 2011 VA C&P examination performed over 3 years after separation (rating effective on 7 October 2011).  In addition the VA granted a 10% service-connected rating for right upper extremity radiculopathy coded 8515 (median nerve) effective on 7 October 2011 (over 3 years after separation).  Although the limitation of cervical spine motion at the MEB examination supported a 10% rating, the PEB’s 30% rating subsumed the contributing Category II conditions intervertebral disc disorder with myelopathy and nerve root and plexus disorder with cervical radiculopathy.  The PEB then deducted 10% due to the fact that the congenital condition existed prior to service.  The Board noted that congenital conditions and the expected outcomes or residuals of treatment including surgery of congenital conditions are not compensable under the rules of the military disability system.  Only permanent service aggravation beyond the natural progression of the condition is compensable (excluding the expected outcomes or residuals of treatment).  The CI’s neck condition manifested symptoms without any specific injury or causative activity and the degree of congenitally-caused spinal stenosis was quite severe.  The surgical outcome was good without any complications and within the expected range.  The Board noted that the evidence suggested that there was no permanent service aggravation of the condition and opined the condition and outcome of surgery was non-compensable.  However the Board first considered its rating recommendation without any consideration of deduction for pre-service impairments or natural progression.  The residual ROM of the cervical spine supported a 10% rating under the VASRD General Formula for Rating Diseases and Injuries of the Spine.  Although there was some decrease in rotation after surgery, there was otherwise no significant change (with regard to rating).  There was no cervical muscle spasm or guarding causing altered contour or gait at the MEB examinations or the after separation VA examinations.  The Board next considered whether separately unfitting determinations and ratings were warranted for the Category II myelopathy (intervertebral disc disorder with myelopathy; the compression of the spinal cord) and radiculopathy (nerve root and plexus disorder with cervical radiculopathy) conditions due to the congenital cervical spine condition.  The MEB referred to “intervertebral disc disorder with myelopathy” as lumbar region however this was likely an error as there was no ongoing lumbar disease and the myelopathy was due to cervical spine stenosis at the foramen magnum.  The congenital stenosis caused compression of the spinal cord as it exited the skull.  This manifested as increased deep tendon reflexes, but did not result in permanent (post-operative) limb weakness, incoordination, abnormal gait, or disturbance of bowel or bladder function.  In addition, the PEB was not clear whether they intended to address only the right arm as contributing to the unfit condition (the neurological issue was listed as “Nerve root and plexus disorder with cervical radiculopathy,” without any reference to the right or left side).  Review of the STRs indicated no significant symptoms of the left arm or suggestion that the left arm affected the CI’s ability to perform his duties at the time of separation.  Following surgery there was no change in symptoms including at the time of the VA examination 2 years after separation.  The right C5 radiculopathy originally manifested as radiating pain and mild right deltoid muscle weakness.  Following surgery, there was improvement in the right arm symptoms, and at the time of the MEB NARSUM the right upper extremity strength was normal.  The VA clinic examination in July 2010, 2 years after separation, also recorded intact strength and sensation of the upper extremities.  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 discomfort or 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.  The Board concluded the evidence in this case did not show that motor weakness, or functional motor impairments (coordination) related to the radiculopathy or myelopathy 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 determinations for the Category II myelopathy and radiculopathy conditions and so no separate disability ratings are recommended.  The Board noted the PEB’s 10% deduction was supportable and that the evidence was clear and unmistakable the condition existed prior to service.  Although it is likely the CI would have developed symptoms based on the severity of the congenital spinal stenosis, the CI nevertheless developed unfitting pain while on active duty that was not sufficiently improved by surgery to remain on active duty.  The Board did not arrive at a rating recommendation higher than that of the PEB even without any EPTS deduction.  Therefore the Board recommends no change to the PEB determination and rating.  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 congenital cervical spine condition with associated (category 2) myelopathy (intervertebral disc disorder with myelopathy; the compression of the spinal cord) and radiculopathy (nerve root and plexus disorder with cervical radiculopathy) conditions.

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 congenital cervical spine condition status-post surgery, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the associated (Category 2) myelopathy (intervertebral disc disorder with myelopathy) and radiculopathy (nerve root and plexus disorder with cervical radiculopathy), conditions, the Board unanimously recommends no change in the PEB adjudication.  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 20140108, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
Ref:	(a) DoDI 6040.44
(b) CORB ltr dtd 10 Jun 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:

-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)