RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00795
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20060331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Food Service Specialist) medically separated for neck fusion.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “Residual weakness left upper extremity” (LUE); “Brown-Séquard Syndrome;” and “status post fusion anterior and posterior from C4-6” conditions were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “status post fusion anterior and posterior from C4-6” as unfitting, rated 10%, with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be Category II conditions, contributing to the unfitting condition, but not separately unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His conditions continue to worsen and negatively impact his daily activities.  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 20060126	VA* - (~2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
S/P Fusion…C4-6	5241	10%	S/P …Fusion C4-6 Cervical Spine	5241	10%	20060215	
Residual Weakness, LUE	Cat II	Spasms and Weakness Left Arm and Body	5241-8514	20%		
Brown-Sequard Syndrome (Spinal Cord Injury)						
		Instability w/ Muscle Atrophy LLE	5241-8520	10%		
		Loss of Sensation…Right Side …	5241-8520	10%		
Other MEB/PEB Conditions x 0 	Other x 4 	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20060412 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Status Post Fusion Anterior and Posterior from C4-6.  The record shows that the right dominant CI was severely injured in a helicopter crash in 13 August 2004 while in a combat zone.  He was found to have a C5 burst fracture and on 14 August 2004 underwent an ACDF (anterior cervical discectomy and fusion) and PSIF (posterior instrumented spinal fusion) along with removal of the vertebral fragments of C5 (corpectomy).  Prior to surgery, he was weak on the left side (hemiparesis), more so in the LUE than the left lower extremity (LLE).  He improved following surgery to the point that he was able to stand for a limited period.  He then transferred to the military medical center and the VA near his home of record for rehabilitation.  At his initial orthopedic evaluation, a month after the injury, he was noted to have LUE weakness, normal LLE strength, and no sensory deficit.  He began intense rehabilitation in occupational therapy (OT) and physical therapy (PT).  On 1 February 2005, the CI was noted to have full range-of-motion (ROM) of the neck, persistent LUE (mostly triceps) weakness, but normal sensation in both upper extremities (BUE).  His gait was normal.  The CI had electrodiagnostic testing (EDX) in neurology on 9 March 2005 and was seen in the clinic for follow up on 14 March 2005.  The CI reported difficulty with overhead activities with the LUE and with fine motor control (such as buttoning his shirt).  He also reported a loss of temperature sensation on the right side below the neck.  On examination, he had diffuse weakness of the LUE.  There was also LLE weakness attributed to pain.  Sensation was reduced for light touch and temperature below T2 on the right.  The deep tendon reflexes were increased on the left and a pathological reflex was also present on the left.  The report of the EDX findings was not found in evidence; this did not impact the adjudication.  The CI was placed on LIMDU on 24 May 2005 for the neck fracture and fusion as well as left sided hemiparesis.  He was subsequently evaluated in neurosurgery, 16 June 2005, and also diagnosed with Brown-Séquard injury to the spinal cord (an incomplete spinal cord injury with weakness and diminished touch on one side with brisk reflexes and loss of temperature and/or pain sensation on the opposite side).  He was referred for PEB.  An OT evaluation on 19 July 2005 documented LUE weakness as well as weakness of the left hand; however, atrophy was not present.  He was noted to have improved with rehabilitation other than extension of his fingers.  In hand surgery on 13 September 2005, the interossei muscles (intrinsic hand muscles) were noted to have decreased mass.  The narrative summary (NARSUM) was dated 21 November 2005, 4 months prior to separation.  The CI reported daily left hand pain, but otherwise no significant LUE pain.  He noted residual weakness in the left hand and triceps and milder weakness in the left knee.  He denied incontinence.  On examination, the RUE motor function was normal other than the right triceps at 4+/5.  The LUE showed 4-/5 strength in the triceps and interossei; the finger flexors were 4/5.  Sensation was diminished, especially to temperature, on the right side.  Increased reflexes were noted on the left.  The action officer observed that this is a classic pattern for Brown-Séquard syndrome.  The cervical ROM was diminished as charted below.  The scars were well healed.  It noted that an MRI from December 2004 had shown myelomalacic (a softening of the spinal cord from insufficient blood flow) changes in the spinal cord at C3-4 and C5.  He was diagnosed with Brown-Séquard syndrome, residual LUE weakness, and status post (s/p) anterior and posterior fusion of C4-6.  At the MEB examination on 27 January 2006, the CI reported numbness in an index finger (side not specified), that he could not grip with the left hand, and knee weakness.  He used a brace for the hand (presumably the left, but not specified).  The MEB physical examiner noted decreased strength of the LUE and LLE as well as abnormal sensation for the RUE.  It noted that specific findings were in the PEB dictation (NARSUM).  At the VA Compensation and Pension (C&P) examination performed on 15 February 2006, 6 weeks before separation, the CI reported a continued functional impairment from the LUE weakness of his grip and triceps as already noted above.  He denied incapacitation.  Rotation of the neck was impaired to the right.  He reported intermittent spasms of the LUE and LLE with impaired control of the movement of his LUE which precluded him working as a cook.  He also reported impaired temperature sensation on the right side of his body from the nipple line down (around T4-5).  He could do all the activities of daily living, vacuum and garden, but could not mow a lawn.  He was not limited in standing or walking.  On examination, his posture and gait were normal.  He did not use an assistive device other than a splint on his left hand at night and occasionally during the day to prevent contractures.  He had atrophy of the left triceps and impairment of coordination of the left arm.  This was muscle group I (shoulder girdle) and 4/5 strength was assessed.  The ROM of the shoulders, elbows, and wrists was normal.  Finger coordination was impaired in picking up a piece of paper with his left hand, but he was able to tie his shoelaces and fasten buttons.  The grip strength was mildly impaired on the right and moderately impaired on the left.  The ROM of the index, long, ring fingers, and little fingers were reduced.  The CI was also noted to have a mild reduction in the circumference of the left calf (36 cm) to the right (36.5cm).  The action officer observed that this is within normal variation.  He was noted to have 4/5 strength for muscle group XI (propulsion and plantar flexion of the foot).  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)	MEB ~ 5 Mo. Pre-Sep	VA C&P ~1 Mo. Pre-Sep	
Flex (45 Normal)	45	40	
Combined (340)	265	300	
Comment	No comment on pain	Limited by Pain	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck (s/p surgery) at 10%, coded 5241 (spinal fusion).  Category II conditions were the weakness of the LUE and Brown-Séquard syndrome.  The VA rated the neck surgery at 10% and also coded it 5241.  The Brown-Séquard syndrome was rated at 20% for spasms and weakness of the LUE, coded 5241-8514 (paralysis of the radial nerve at a mild level), and 10% for loss of sensation on the right, coded 5241-8520 (paralysis of the sciatic nerve at the mild level).  Instability with muscle atrophy of the LLE was rated at 10%, coded 5241-8520.  The Board first considered if the two Category II conditions, residual weakness LUE and Brown-Séquard Syndrome were separately unfitting.  The Category II adjudication is an implicit determination by the PEB that neither condition rose to the level of being separately unfitting, but both were noted to contribute to the unfitting condition.  To overcome the PEB adjudication, a preponderance of evidence must support an unfitting determination by the Board.  Both conditions were listed by the MEB as failing retention standards.  The weakness of the LUE was also listed on the LIMDU.  The Brown-Séquard syndrome was not listed, but it appears that it had not been formally diagnosed at that point.  The Board noted that the Brown-Séquard syndrome includes a hemiplegia as part of the syndrome.  The LUE weakness was specifically cited by the MEB and PEB and the LLE was not, implying that the LLE both met retention standards and was not unfitting.  The C&P examiner noted that the CI was not limited in standing or walking and also that the posture and gait were normal.  The evidence does not support finding the LLE weakness as separately unfitting at separation.  The Board next considered the LUE weakness.  The CI was a cook.  Although right dominant, this occupation would entail the use of both hands and lifting with both arms.  He was noted to have diminished strength and a weak grip.  The Board determined that this would impair duty and that the burden of preponderance of evidence is met.  Accordingly, a finding that the LUE was separately unfitting at separation is recommended by the Board.  The Board then considered the Brown-Séquard syndrome.  The motor loss has been addressed.  The primary sensory manifestation is a loss of temperature sensitivity on the right side.  The Board observed that a loss of temperature sensation in the dominant hand in a cook could not only be inconvenient, but expose the individual to harm.  Accordingly, this too is thought to be separately unfitting a separation.  While not clearly documented as to the extent of the loss, the record shows that the entire right side had diminished temperature sensation.  However, the Board did not find a preponderance of evidence to suggest that the diminished temperature sensation of the trunk and RLE would have been separately unfitting.  

The Board then considered the ratings.  The ROM for the neck supports a 10% rating which was adjudicated by both the PEB and VA.  No route to a higher rating was found.  The weakness of the LUE was of the hand extrinsic muscles and of the flexors of the hand.  The Board noted that this corresponds to the lower (cervical) radicular group and recommends a code of 8512 (paralysis of the lower radicular group) be used and a rating of 30% assigned for moderate incomplete paralysis of the dominant side.  The Brown-Séquard syndrome sensory component was primarily manifested by a loss of temperature sensation on the right and the occupational impact would have been greatest for the RUE.  The Board recommends a rating of 20% for neuralgia of all (cervical) radicular groups, coded 8713.  

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 neck condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended LUE motor loss condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 30%, coded 8512 IAW VASRD §4.124a.  In the matter of the contended Brown-Séquard syndrome condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 20%, coded 8713 IAW VASRD §4.124a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
S/P Fusion Anterior and Posterior (C4-6)	5241	10%	
Residual Weakness LUE	8512	30%	
Brown-Séquard Syndrome Manifested by RUE Sensory Loss	8713	20%	
RATING (w/ BLF)	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20132116, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND   
 DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
(b) PDBR ltr dtd 16 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX 
(c) PDBR ltr dtd 16 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 11 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
(e) PDBR ltr dtd 31 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
(f) PDBR ltr dtd 31 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
(g) PDBR ltr dtd 31 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
(h) PDBR ltr dtd 30 Nov 15 ICO  XXXXXXXXXXXXXXXXXXXX
(i) PDBR ltr dtd 30 Nov 15 ICO  XXXXXXXXXXXXXXXXXXXX
(j) PDBR ltr dtd 01 Dec 15 ICO  XXXXXXXXXXXXXXXXXXXX
(k) PDBR ltr dtd 04 Jan 16 ICO  XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (k) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List effective date of discharge with a 60 percent (increased from 20 percent) disability rating.

     b. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List effective date of discharge with a 50 percent (increased from 10 percent) disability rating.

     c. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List effective date of discharge with a 40 percent (increased from 10 percent) disability rating. 

     f. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     e. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     g. XXXXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List effective date of discharge with a 30 percent (increased from 10 percent) disability rating. 

     h. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List effective date of discharge with a 50 percent (increased from 20 percent) disability rating. 

     i. XXXXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List effective date of discharge with a 30 percent (increased from 20 percent) disability rating. 

     j. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.  
       
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.