RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00610
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070708

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Patriot Systems Repairer) medically separated for a neck condition.  The neck 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 U3 profile and referred for a Medical Evaluation Board (MEB).  “C4-C7 degenerative discs w/radiculopathy, s/p anterior cervical fusion C4-C7,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one medically acceptable condition (GERD) for PEB adjudication.  The Informal PEB adjudicated “chronic cervical pain” as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  He was not rated for radiculopathy.  His complete submission is at Exhibit A.

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: 

IPEB – Dated 20070501	VA* - (~1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Cervical Pain	5241	10%	S/P Herniated Disk of C4-C7 with Stenosis and Deformity of C7, Status Post Diskectomy	5243	10%	20070607	
			Radiculopathy Left Upper Ext	8599-8515	10%	20070607	
			Radiculopathy, Right Upper Ext	8599-8515	10%	20070607	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 10	
RATING:  10%	COMBINED RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20070719 (most proximate to date of separation (DOS)).  
ANALYSIS SUMMARY:  The PEB adjudicated and rated the cervical condition and further stated that a left sided radiculopathy had resolved after surgery with complete return of motor strength [i.e., no evidence of neuropathy].  The possibility of ratable neuropathies associated with the unfitting cervical condition will be addressed in the Board’s recommendations.  

Chronic Cervical Pain Post Cervical Fusion.  The service treatment record (STR) and narrative summary (NARSUM) documented the first visit for onset of upper back and neck pain that radiated into the shoulder with numbness and tingling of the [non-dominant] left arm and hand in September 2006 (10 months pre-separation).  This was exacerbated by road marching with heavy gear.  Radiographic imaging in October 2006 (9 months pre-separation) documented C4-C7 herniation causing compression of the nerve roots.  This created radicular symptoms resulting in sensory changes with muscular weakness and atrophy.  Anterior cervical fusion with C4-C7 discectomy was performed in February 2007 (5 months pre-separation).  Intraoperative and immediate postoperative electrophysiologic testing was “normal.”  

On the MEB DD Form 2807-1, Report of Medical History, dated 13 March 2007 (4 months pre-separation), the CI reported “impaired use of both hands and arms from nerve damage; numbness and weakness of the left arm/ hand,” and frequent awakening from pain in the neck.  The MEB DD Form 2808, Report of Medical Examination, dated 13 March 2007, the examiner diagnosed “cervical radiculopathy [after surgery] with limited range of motion of C-spine and persistent paresthesias,” and documented no appreciable weakness of the left upper extremity (strength 5/5 bilaterally).  Physical therapy range-of-motion in March 2007 documented a flexion of 30 degrees (normal 45), extension of 15 degrees (normal 45), left lateral flexion of 10 degrees (normal 80), right lateral flexion to 20 degrees (normal 80), and right and left rotation of 40 degrees each (normal 80); with total cervical range-of-motion of 155 degrees (normal 340).  There was no documentation of painful motion.  The MEB NARSUM exam was dated 28 March 2007.  The examiner documented normal (5/5) strength of his upper extremities bilaterally with no sensory deficits and normal reflexes.  

At the VA Compensation and Pension (C&P) exam on 7 June 2007 (1 month pre-separation), the CI reported that the numbness and tingling that had subsided after the discectomy; spasms radiated to the “triceps and biceps muscle on both shoulders,” and he had no feeling in the left hand.  The examiner documented flexion to 45; extension and bilateral lateral flexion to 30 degrees each and bilateral lateral rotation of 65 degrees; all limited by pain.  Spasm was documented and flexion of the cervical spine resulted in a “mild radiculopathy extending to the shoulders.”  

At a clinic visit dated October 2007 (3 months post-separation), the CI reported constant 5/10 neck pain that radiated down the left arm, numbness of the first through third fingers and intermittent dropping of objects.  The examiner documented decreased range-of-motion (ROM) of the cervical spine, 4/5 strength of the left upper extremity and decreased sensation of the fingers.  Difficulty obtaining reflexes of the bilateral upper extremities was additionally noted.  

At the VA Compensation and Pension (C&P) exam on 4 June 2008 (11 months post-separation), the CI reported daily neck pain, periodic decreased sensation in the left index and middle finger and occasionally dropped objects.  The examiner documented flexion of 5 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, and bilateral rotation to 45 degrees, all with pain.  He further documented no reflexes at the elbows [abnormal], with “good” grip strength, normal sensation to pin prick, muscle tenderness without spasm, and no changes in range-of-motion, coordination, fatigue, weakness, endurance or pain after repetition.  The examiner opined that there was “no objective findings of upper extremity radiculopathy.”  Electrophysiologic studies in July 2008 documented no evidence of motor or sensory neuropathy and no evidence of cervical radiculopathy.  At a clinic visit dated 17 June 2008, the CI reported left upper extremity paresthesias, weakness, neck spasm, and occasional dropping of objects.  The examiner documented limited cervical ROM due to stiffness and pain, 5/5 strength bilaterally, symmetric reflexes, and loss of sensation in the fingertips.  At the VA Compensation and Pension (C&P) exam dated 29 July 2008, (12 months post-separation), the CI reported decreased ROM and chronic cervical pain.  The examiner documented normal reflexes, strength and sensation.  

At a physical medicine and rehabilitation visit dated 27 August 2008 (13 months post-separation), the CI reported constant numbness in the left hand and fingers, intermittent pain in the central neck, and constant pain and tightness in the shoulder muscle (trapezius) area.  The examiner documented flexion to 35 degrees, extension to 30 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, and bilateral rotation to 30 degrees each with painful motion.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB adjudicated the cervical pain with limited range-of-motion as unfitting, rated 10%, coded 5241 (spinal fusion).  The VA also rated 10%, coded 5243 (intervertebral disc syndrome).  The pre-separation MEB and PT exams documented cervical flexion limited to 30 degrees and a total combined cervical ROM of 155 degrees in support of a 20% rating.  A VA pre-separation examination dated 7 June 2007 documented cervical flexion of 45 degrees in support of a 10% rating.  The Board noted the disparity in ROM documented at the post separation VA examination (dated 4 June 2008) that recorded a flexion of 5 degrees and found no evidence of injury that would account for such a disparity.  Another post-separation physical therapy exam just 2 months afterwards (dated 27 Aug 2008) documented flexion of 35 degrees corresponding to a 10% rating.  Therefore, the 4 June 2008 VA pre-separation exam was given less probative value than the pre-separation MEB exam, and therefore did not support a rating higher than 20%.  There was no further evidence of flexion to 15 degrees or less and no documentation of unfavorable ankylosis to support a higher rating.  There was no documentation of incapacitating episodes to support a higher rating.  The Board concluded the evidence reflected an overall disability picture that most nearly approximated the 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the cervical condition.  

The Board next addressed the fairness of the PEB’s determination that a radiculopathy of the upper extremities 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 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. 

Radiculopathy, Bilateral Upper Extremity.  The Board discussed whether or not there was a significant motor weakness or sensory impairment which would impact MOS activities.  The cervical radiculopathy was included in a profile dated 9 April 2007 and after the surgery; however, it did not include specific restrictions as related to a radiculopathy, and did not make reference to a bilateral, nor a right sided radiculopathy.  The NARSUM and MEB both forwarded “…radiculopathy, status post fusion” as failing retention standards.  The PEB stated that the “left sided radiculopathy has essentially resolved since surgery with complete return of motor strength (5/5 [strength] in all muscle groups),” and made no reference to a right sided radiculopathy.  The commander’s statement included the report of loss of sensation but was nonspecific as to its functional impact on duty performance and there was no other performance based evidence from the record that a radiculopathy significantly interfered with satisfactory duty performance.  There was no evidence in this case that motor weakness or sensory impairment existed to any degree that could be described as functionally impairing.  After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from a bilateral radiculopathy was integral to the CI’s inability to perform his MOS; and, accordingly cannot recommend a separate rating for it.  

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 cervical condition, the Board unanimously recommends a disability rating of 20%, coded as 5241 (spinal fusion) IAW VASRD §4.71a.  In the matter of left and right cervical radiculopathies and IAW VASRD §4.124a, 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 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	
Cervical Spine Fusion 	5241	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140120, 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 XXXXXXXXXXXXXXXXXXX, AR20160003080 (PD201400610)

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 20% 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