RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00443
BRANCH OF SERVICE:  Army 		DATE OF PLACEMENT ONTO TDRL:  20050319
		DATE OF REMOVAL FROM TDRL:  20060815

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Combat Engineer) medically separated by the Informal Physical Evaluation Board from the Temporary Disability Retired List (TDRL) for “chronic neck pain”; with a combined disability rating of 10%.

CI CONTENTION:  The applicant makes no specific contention in his application.  His complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 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 PEB – 20050114/20060803	VARD - 20050919	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL Removal	
Left Upper Extremity Pain and Weakness	5243-8512	20%	Not Unfitting	Degenerative Disc Disease of the Cervical Spine with Stenosis and Radiculopathy of the Left Upper Extremity…	5243	10%	10%	
Chronic Neck Pain	5243	10%	0%					
COMBINED RATING:  30% → 0%	COMBINED RATING FOR ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  As noted above the MEB forwarded a single condition of herniated cervical disc with LUE radiculopathy and the PEB adjudicated the neck condition and the LUE condition as separately unfitting and provided separate Service ratings for each condition.  The Board noted that the two conditions are interrelated, the neck condition causing the LUE condition.  To avoid redundancy in presenting the facts pertinent to the rating of each condition they are presented together below, followed by separate fitness and rating discussions, if indicated, for each condition.  

Neck Pain and Left Upper Extremity (LUE).  According to the service treatment record and the MEB narrative summary (NARSUM), the CI developed neck pain without specific trauma in May 2003.  Physical therapy was not effective and magnetic resonance imaging performed 27 August 2004 showed degenerative disc disease (DDD) and severe spinal arthritis causing significant narrowing of the neuroforamen (bony canal through which the spinal nerves exit) at multiple levels, worse on the left than the right.  There was also a large disc herniation at C7-T1, combined with arthritis, causing central spinal and bilateral foraminal stenosis.  At an orthopedic evaluation on 28 September 2004, the CI reported neck and dominant LUE pain, numbness, and tingling and the exam noted decreased sensation and an absent triceps reflex (C7).  A follow-up note dated 24 October 2004 indicated that electrodiagnostic studies showed cervical spinal nerve root irritation (radiculopathy) and no evidence of a peripheral cause for the CI’s LUE symptoms (such as carpal tunnel or cubital tunnel syndrome).  At a neurosurgical evaluation on 9 November 2004, the CI reported neck problems for greater than a year with mostly left arm and shoulder pain, with numbness in the fourth and fifth fingers (C8), without weakness.  The exam noted “good ROM [range-of-motion]” with normal strength and reflexes of the LUE, with decreased sensation limited to the ulnar aspect of the hand.  The LUE symptoms were not reproduced by neck pressure, testing for peripheral nerve entrapment was negative, and there was no clinical evidence of cervical cord compression (negative Lhermitte’s sign).  The neurosurgical assessment was that the LUE radiculopathy was nearly resolved and the CI was not a good surgical candidate due to neck pain being the predominate symptom and the CI did not meet retention standards due to the neck and arm pain and an MEB was initiated.

At the VA Compensation and Pension (C&P) General medical exam performed 2 June 2004, 10 months before TDRL placement, the CI reported chronic neck pain with radiation to the upper back and right shoulder, aggravated by activity.  He reported decreased neck and shoulder ROM during flare-ups, but otherwise had normal ROM of the neck and shoulders and had no radicular pain, or weakness.  The exam noted full cervical flexion and combined ROM of 280 degrees, with painful extension noted.  Neck pressure did not reproduce the LUE symptoms and strength and reflexes of the UEs were normal.

At the MEB NARSUM exam on 15 November 2004, 4 months before TDRL placement, the CI reported worsening neck pain and that with aggravation of the neck pain he noted increased LUE symptoms.  The MEB physical exam noted tenderness to palpation of the neck with decreased ROM.  There was no muscle spasm.  Upper extremity strength, sensation, and reflexes were normal.  Physical therapy ROM for the MEB was cervical flexion 40 degrees, and combined ROM of 290 degrees (normal 340), with painful motion.  

At the VA C&P General medical exam on 14 April 2005, 1 month after TDRL placement and 16 months before TDRL removal, the CI reported neck pain that radiated to his dominant left shoulder, arm, and hand, with intermittent LUE pain and weakness during flare-ups.  The exam noted full neck flexion and combined ROM of 265 degrees, with pain with left lateral flexion.  There was no additional loss of ROM with repetition.  The VA exam addressed the LUE symptoms additionally, noting that the CI reported that during flare-ups of his neck pain he experienced numbness and tingling of the top of the forearm and the lateral hand (C6-8).  The exam noted normal strength, sensation, and reflexes of the UEs.  The diagnoses indicated that the CI had cervical DDD and spinal stenosis with LUE radiculopathy and that the reported left shoulder, arm, and hand symptoms were all related to the neck condition.

At the annual TDRL NARSUM evaluation on 15 March 2006, 5 months before TDRL removal, the CI reported chronic neck pain, with less radiating pain, and numbness and tingling in the left hand with flare-ups.  He denied problems with his gait or bowel/bladder function.  The exam noted normal gait and balance and the CI was able to heel and toe walk.  There was no evidence of cervical cord compression.  Upper extremity strength and reflexes were normal.  There was “some numbness”, especially in the left C6 distribution.  Physical therapy ROM for the TDRL evaluation was performed 14 February 2006.  Cervical flexion was 35 degrees and combined ROM was 235 degrees, with painful motion.  Repeat cervical MRI the same day (57) noted DDD and spinal arthritis, with stable appearance of the disc herniation at C7-T1 and the disc protrusion at C6-7 to the left was “slightly bigger”.  The examiner indicated that the CI’s present condition was unchanged since his original MEB examination.

The Board directed attention to its rating recommendation of the neck condition based on the above evidence.  The PEB and VA both rated the neck condition 10%, coded 5243 (Intervertebral disc syndrome-IDS).  The PEB placed the CI on the Temporary Disability Retired List with a combined 30% rating on 19 March 2005.  Therefore, the Board first considered the rating of the neck condition at TDRL placement.  The Board agreed that the evidence supports a 10% rating according to the VASRD General Formula for Rating the spine in effect on the date of separation for combined cervical ROM “greater than 170 degrees but not greater than 335 degrees” and “tenderness not resulting in an abnormal spinal contour”, but there was no evidence of muscle spasm or guarding or limitation of cervical motion sufficient to support the next higher rating.  The Board reviewed to see if a higher evaluation than 10% was achieved coding with 5243 and rating based on incapacitating episodes, defined by the VASRD as bed rest prescribed by a physician and treatment by a physician.  However, there was no documentation in record of incapacitating episodes as defined during the past 12 months.  The additional rating of the separately unfitting LUE radiculopathy is discussed below.  Thus, the Board determined that the evidence supports a 10% rating for the neck condition at TDRL placement and no higher.

The Board next considered the rating of the neck condition at the time of TDRL removal.  The PEB rated the neck condition 0%, coded, 5243, citing pain limited motion, and the original VA Rating Decision (VARD) noted above was the only VARD in record.  There was no VA examination proximate to the time of TDRL removal, therefore the Board relied on the TDRL NARSUM for its rating recommendation at the time of TDRL removal.

The Board agreed that the evidence supports that there was no significant change in pertinent rating criteria for the neck condition during the TDRL period.  Therefore, by the same rational as elaborated for the neck condition at TDRL placement, the Board determined that the evidence supports a 10% rating at TDRL removal and no higher.  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 at TDRL placement and at TDRL removal, the Board recommends a 10% rating, coded 5243.

The Board next directed attention to its rating recommendation of the LUE radiculopathy condition at TDRL placement based on the above evidence.  The PEB rated the LUE condition 20%, coded 5243-8512 (Incomplete paralysis of the lower radicular group with IDS).  The VA did not provide a rating for the LUE symptoms, noting that according to VASRD criteria a compensable rating was not supported by the medical evidence.  The Board agreed that VASRD code 8512 was the most appropriate nerve code for rating the LUE radicular symptoms and considered the rating criteria, which are subjective with 20% for “mild,” 40% for “moderate,” and 50% for “severe” incomplete paralysis of the lower radicular group of the dominant UE.  The Board noted that the PEB may liberalize the TDRL rating to meet the requisite 30% threshold permitting a period of TDRL and agreed that the evidence could support characterizing the LUE radiculopathy as mild, but not moderate.  Thus, the Board determined that the LUE condition could be rated 20% and no higher at TDRL placement.  The Board then considered the rating of the LUE at the time of TDRL removal.
The PEB adjudicated the LUE condition as not separately unfitting at TDRL removal and noted on the DD Form 199 that “the likelihood of increasing symptoms with Kevlar wear and LBE precludes return to active service.”  The Board’s main charge is to assess the fairness of the PEB’s determination that the LUE condition was not unfitting at the time of TDRL removal.  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.  At the time of the TDRL evaluation the LUE symptoms had improved and the exam noted normal strength with LUE numbness in a limited distribution (C6), consistent with the slightly increased disc herniation noted at that level on repeat imaging.  The Board deliberated whether the LUE radiculopathy could be considered not unfitting given the PEB’s own assessment that the symptoms were likely to be aggravated by a return to active duty.  The Board considered that there was no change in the cervical DDD and spinal arthritis on MRI, which caused neuroforaminal compromise bilaterally, still worse on the left, and the neck condition was chronic and degenerative.  The Board concluded that return to the strenuous physical requirements of active duty would “more likely than not” cause recurrent LUE radicular symptoms.  Member consensus was that the LUE symptoms that were present at the TDRL evaluation, combined with the nature and severity of the CI’s neck condition as supported by imaging studies provided a preponderance of evidence to recommend that the LUE condition remained unfitting at TDRL removal.

The Board therefore, considered the rating of the LUE condition at TDRL removal.  As noted above, a liberal TDRL rating to meet the requisite 30% threshold for TDRL is in the member’s best interest at the time of temporary retirement, and does not mean that a lower rating at the time of permanent separation was necessarily unfair, even if perceived as incongruent with the subjective severity from one rating to the next.  Therefore, the sole basis for the Board’s permanent recommendation is its assessment of disability based on evidence proximate to the date of TDRL removal compared to VASRD criteria in effect on that date.  The Board engaged in lengthy discussion regarding the LUE condition rating at TDRL removal and first considered the rating at TDRL placement based on VASRD criteria, absent consideration of a combined 30% rating required for TDRL placement.  The Board majority noted that the VA Rating Decision dated 19 September 2005 (6 months after TDRL placement) did not provide a separate rating for the LUE (based on both C&P exams noted above), citing as mentioned above, that “a compensable evaluation was not supported by the medical evidence.”  Additionally, the Board majority agreed that the evidence in record supports that the LUE symptoms, characterized as “mild” at TDRL placement, improved to some degree and did not worsen during the TDRL period.  Therefore, the Board majority determined that there was insufficient evidence to support the 20% rating at TDRL removal, and IAW VASRD §4.31 (Zero percent evaluations) recommends a 0% rating for the LUE condition at TDRL removal.

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 LUE condition at TDRL placement.  At TDRL removal, the Board recommends that the LUE condition remained unfitting and recommends a 0% rating, coded 5243-8512.

BOARD FINDINGS:  In the matter of the neck condition, the Board unanimously recommends no change to the PEB rating during the period of TDRL and a 10% rating at permanent separation, coded 5243 IAW VASRD §4.71a.  In the matter of the left upper extremity condition, the Board unanimously recommends no change to the PEB rating during the period of TDRL.  The Board unanimously recommends the left upper extremity condition as unfitting at separation, and the Board majority recommends a 0% rating at permanent separation, coded 5243-8512 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Left Upper Extremity Pain and Weakness	5243-8512	20%	0%	
Chronic Neck Pain	5243	10%	10%	
RATING	30%	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140113, 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, AR20160002517 (PD201400443)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 10% without re-characterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

CF: 
(  ) DoD PDBR
(  ) DVA