RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01096
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090412

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-7 (Construction Equipment Supervisor) medically separated for neck pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic neck pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded 10 other medically acceptable conditions (mild persistent asthma, headaches, gastroesophageal reflux disease, allergic rhinitis, obstructive sleep apnea, bilateral hearing loss, right wrist pain, left knee pain, myopia and right shoulder acromioclavicular arthritis) for PEB adjudication.  The Informal PEB adjudicated “fusion of the cervical spine” as unfitting, rated 20%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not 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 20081231	VA* - (~2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Fusion of Cervical Spine	5241	20%	Status Post Cervical Spine Fusion with DDD	5241	20%	20090609	
			LUE Cervical Radiculopathy	8599-8516	10%		
			…RUE Cervical Radiculopathy	8599-8515	10%		
Other MEB/PEB Conditions x 10 (Not In Scope)	Other x 17	
RATING:  20%	RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20090813 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Fusion of Cervical Spine.  The record shows that the CI was treated for right sided carpal tunnel syndrome (CTS, a median nerve entrapment) in 1999.  This was apparently successful as there are no indications of problems otherwise in evidence.  The CI had a MRI of the cervical spine on 19 December 2006 for a history of intermittent neck pain with new onset of tingling in the ulnar distribution of both hands.  Multi-level degenerative disc disease (DDD) was present.  Electrodiagnostic testing in January 2007 was normal.  He underwent both nerve root block and ablation without resolution of his symptoms.  A CT dye study (myelogram) of the neck on 2 August 2007 showed that the most severe entrapment was at the C5-6 level bilaterally.  On 10 September 2007 he underwent discectomy and fusion on that level with hardware placement.  Following surgery, he had rehabilitation in physical therapy (PT).  Around 5-6 months after surgery, he noted progressively worsening pain associated with right upper extremity (RUE) numbness and tingling.  A repeat MRI showed post-surgical changes without complications or instability as did a repeat CT myelogram.  He was seen in neurosurgery on 16 September 2007 and an X-ray showed effacement of the C5 and C7 nerve roots on the right and C8 on the left.  At the MEB examination on 30 September 2008, 6 months prior to separation, the examiner recorded a left cervical radiculopathy in the ulnar distribution.  On examination, the neck range-of-motion (ROM) was reduced but not quantified.  The neurological examination was checked “normal.”  The narrative summary (NARSUM) was dated 20 November 2008.  The CI reported that the neck pain was aggravated by the wear of body armor.  The pain was described as shooting, but radiation down the arms was denied.  Incapacitation was not recorded.  On examination, the spine was tender from C4-T8.  The ROM was done in PT on 27 October 2008 and is recorded below.  Spasm was absent.  The neurological examination was normal.  At the initial VA Compensation and Pension (C&P) exam performed on 9 June 2009, 2 months after separation, the CI reported that he was working as a civilian in the same job he had done in the military.  He endorsed numbness in the left hand in the 4th and 5th digits (ulnar distribution) and lateral left upper arm and grip weakness in the right hand.  The motor examination was normal except for a weak (4/5) right grip.  This was attributed to the previous CTS condition.  The neurological examination was recorded as normal.  However, a detailed spine examination done the same day showed 4/5 weakness of the right wrist flexors, extensors, and finger flexors.  Tone was normal and atrophy absent.  Sensation was reduced on the right for all modalities (pain, vibration, light touch, and position sense).  The ROM was reduced and is charted below.  In the examination of the right wrist and left arm numbness the same day, the RUE was noted to have normal sensation and the left upper extremity (LUE) sensation was decreased in all modalities.  The motor examination was normal bilaterally.  Another C&P examination was accomplished on 9 December 2009, 8 months after separation.  Pain and light touch were decreased on the left in an ulnar distribution.  The motor function was normal and the reflexes were symmetric.  The ROM is charted below.  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)	PT (for MEB) ~5 Mo. Pre-Sep	VA C&P ~2 Mo. Post-Sep	VA C&P ~2 Mo. Post-Sep	
Flex (45 Normal)	35	20	40 (35 after repetition)	
Combined (340)	180	105	210	
Comment	Painful motion	Painful motion	Painful motion	
§4.71a Rating	10%	20%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the neck at 20%, coded 5241 (spinal fusion).  The VA also rated the CI at -8515 and 10% each for LUE and RUE radiculopathy, coded 8599-8515 and 8599-8516 (mild median nerve paralysis and ulnar nerve paralysis), respectively.  The PEB rated the neck at 20% for a functional loss limited to 22 degrees.  The Board found no route to a higher rating.  It then considered if an unfitting radiculopathy was present at separation.  The MEB and NARSUM documented a normal neurological examination.  The first VA C&P was internally inconsistent recording that the left and right sides were normal and impaired for both sensation and motor function, reducing the probative value of this examination.  The second C&P noted normal motor function and a sensory loss on the left in a peripheral nerve distribution rather than from a radiculopathy.  The evidence does not support the presence of an unfitting radiculopathy at separation.  The Board concluded therefore that this condition could not be recommended for additional disability 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 fusion 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 fusion 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 20140208, 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, AR20160003600 (PD201401096)

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,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA