RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-00768
BRANCH OF SERVICE:  MARINE CORPS 	 SEPARATION DATE:  20070531

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Organizational Automotive Mechanic) medically separated for cervical disk disease.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or physical fitness requirements.   He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  “Degeneration of cervical intervertebral disc” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “cervical disk disease, status post cervical diskectomy and anterior antibody fusion” as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

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, 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:  

IPEB - Dated 20070410	VA* - (~2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical Disk Disease, Status Post Cervical Diskectomy and Anterior Antibody Fusion	5241	20%	Post-Operative Cervical Spine	5243-5241	20%	20070314	
Other MEB/PEB Conditions x 0 	Other x 11	
RATING:  20%	COMBINED RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20070705 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Cervical Spine Condition.  Secondary to significant spinal disc disease, the CI underwent a multi-level neck fusion in September 2006 and was placed on LIMDU status in December 2006.  Pursuant to persistent physical inabilities, he was referred to a MEB.  At the MEB narrative summary (NARSUM) examination 20 March 2007 (10 weeks pre-separation), the CI reported the inability to run and jump.  His physical examination (PE) revealed tenderness, spasms, and decreased range-of-motion (ROM) about the cervical spine.  There was no comment with regard to painful motion.  His diagnosis remained as “cervical disk disease, status post cervical diskectomy and anterior antibody fusion.”  At the VA Compensation and Pension (C&P) examination (11 weeks pre-separation), the CI reported a constant neck pain described as a cramping, aching, burning, sharp 5/10 pain intensity.  “The pain is elicited by physical activity and sometimes by stress.”  He then returned to his job as a diesel mechanic sergeant.  The PE revealed decreased and painful cervical motion with worsening upon repetition with regards to fatigue, weakness, and lack of endurance.  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)	VA C&P ~11 weeks Pre-Sep	MEB ~10 weeks Pre-Sep	
Flex (45 Normal)	20	20	
Extension (45)	20	20	
R Lat Flexion (45)	10	-	
L Lat Flexion (45)	10	-	
R Rotation (80)	70	45	
L Rotation (80)	70	45	
Combined (340)	200	-	
Comment	painful motion; (+) Deluca	tenderness; spasms	
§4.71a Rating	20%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  Using a similar primary VASRD code of 5241 (spinal fusion), both the PEB and VA awarded a 20% rating impairment.  Board members first agreed that both pre-separation examinations displayed sufficient evidence of limited motion of 20 degrees of cervical flexion to justify the service rating of 20% IAW VASRD §4.71a.  Members then considered a possible higher impairment rating based upon the evidence of additional limited joint function found upon repetition due to fatigue, weakness, and lack of endurance (DeLuca language).  Members ultimately agreed that the absence of any further findings of repetitive reductions in the MEB examination (conducted a week later) indicated either improved or non-existent worsening physical parameters and therefore, it would be speculative to provide a foundation for recommending a higher 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 cervical spine condition. 

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 spine condition and IAW VASRD §4.71a, 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 20140211, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 21 Dec 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:

- XXXXXXXXXXXXXXXXXXXXX former USMC
- XXXXXXXXXXXXXXXXXXXXX former USMC
- XXXXXXXXXXXXXXXXXXXXX former USMC  
- XXXXXXXXXXXXXXXXXXXXX former USMC
- XXXXXXXXXXXXXXXXXXXXX former USMC
- XXXXXXXXXXXXXXXXXXXXX former USMC