RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01323
BRANCH OF SERVICE:  Air Force	SEPARATION DATE:  20090403

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve, E5, Recruiter, medically separated for “neck pain due to degenerative disc disease with radiculopathy left upper extremity,” with a disability rating of 10%.

CI CONTENTION:  “I believe my rating should have been higher due to my condition.  I also believe my other symptoms should have been added since they also prevented me from doing my work.  Like my depression, migraines, lower back, radiculopathy in both arms.  My cervical pain should of been higher.”  The applicant’s 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 Physical Evaluation Board (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 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:  

SERVICE PEB - 20061231	VARD - 20091023	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck Pain Due to Degenerative Disc Disease with Radiculopathy Left Upper Extremity	5243	10%	Cervical Strain with Cervical Disc Herniation with Cervical Bilateral C5-C6 Radiculopathy	5343	20%	20090521	
Chronic Low Back Pain	Cat II	Lumbar Strain and Lumbar Disc Herniation…	5243	40%	20090521	
Migraine Headaches	Cat II	Migraine Headaches	8100	Deferred*	20090601	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  90%	
* Rated 30% effective 20090404 derived from VARD 20100317

ANALYSIS SUMMARY:

Neck Pain due to Degenerative Disc Disease with Radiculopathy Left Upper Extremity.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck pain condition began in approximately January 2007 without any specific injury or trauma; however, in 2001 he suffered a fall striking the left side of his neck and his head.  Radiographic evaluation of the cervical spine performed 18 June 2007 demonstrated multilevel degenerative changes and mild flattening of the spinal cord.  Electromyography and nerve conduction velocity studies, performed 20 June 2007, 22 months before separation, demonstrated evidence of a left C5 or C6 radiculopathy without active neurogenic inflammation.  The CI was evaluated by neurology and orthopedic surgery.  He determined not to be a surgical candidate and was referred to pain management.  During an anesthesia and pain care clinic appointment on 30 August 2007, performed 19 months before separation, the CI reported that after his first epidural steroid injection (ESI) he had a 60-70% reduction in pain for 2 days and after the third (second) ESI he had a 50% reduction in pain for 2 days.  On examination the CI had left upper extremity (UE) weakness, hypoesthesia (decreased sensation), and diminished reflexes.  Magnetic resonance imaging studies performed 19 and 10 months before separation, showed cervical disc herniation and moderate multilevel degenerative changes.  The MEB NARSUM examinations performed on 3 March 2008 and 5 May 2008 (13 and 11 months prior to separation), noted complaints of stabbing pain over the left neck and shoulder with radiation into the left lateral arm going down to the fingers associated with numbness, tingling, weakness and burning in the left UE.  The physical examination showed tenderness to palpitation (TTP) over the left greater than right cervical facet articular column regions and over the bilateral paraspinal muscles of the cervical.  Reflexes were intact.   There were no motor or sensory deficits in the bilateral UE.  Pain was noted as greater on extension than flexion.  

At the time of the physical therapy evaluation on 2 May 2008, performed 11 months before separation, the examiner indicated pain at 5/10 which increased with physical activity with tingling in the bilateral arms.  There were reduced reflexes in the bilateral brachialis and reduced muscle strength and sensation in the UE left greater than right.  There were muscle spasms and TTP in the bilateral trapezius.  The ROM was flexion 35 degrees (45 degrees normal) with a combined ROM or 195 degrees (340 degrees normal) with pain on extension.  At the time of the physical therapy clinic appointment on 22 December 2008, performed 3 months before separation the CI reported 10/10 pain at worst.  The ROM was flexion of 20 to 25 degrees (45 degrees normal) with a combined ROM of greater than 105 degrees and no greater than 165 degrees (340 degrees normal).

At the VA Compensation and Pension (C&P) spine examination on 21 May 2009, performed 2 months after separation, the physical examination showed no weakness, tenderness or spasms.  Sensory functions were decreased in the UE.  Motor strength and reflexes were normal in the UE.  The ROM was flexion of 20 degrees (45 degrees normal) with a combined ROM of 130 degrees (240 degrees normal) with painful motion in all planes.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck pain, due to degenerative disc disease with radiculopathy, at 10% under code 5243 (intervertebral disc syndrome), citing limitation of motion, muscle spasms, and radiculopathy.  The VA assigned a 20% rating using code 5243 (intervertebral disc) for limitation of forward flexion, limitation of combined ROM, spasms and functional loss, based on the C&P Spine examination 2 months after separation.  The Board noted that the NARSUM examination was a year prior to separation and placed higher probative value on the physical therapy and VA ROM measurements and physical findings based on their proximity to separation.  The Board agreed that a 20% rating, but no higher, was justified for cervical flexion greater than 15 degrees but not greater than 30 degrees and combined ROM not greater than 170 degrees.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  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.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the neck pain due to degenerative disc disease with radiculopathy left upper extremity condition, coded 5243.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that migraine headaches and chronic low back pain conditions were 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 migraine headaches and chronic low back pain conditions were not specifically profiled or implicated in the commander’s statement and were not judged to fail retention standards or referred by the MEB.  All were reviewed and considered by the Board.  There was no performance-based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the neck pain due to degenerative disc disease with radiculopathy left upper extremity condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended migraine headaches and chronic low back pain conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Neck Pain	5243	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140226, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MR
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear XXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-01323.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended modification of your assigned disability rating without re-characterization of your separation with severance pay. 

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding, accept their recommendation and direct that your records be corrected as set forth in the attached copy of a Memorandum for the Chief of Staff, United States Air Force.  The office responsible for making the correction will inform you when your records have been changed.

Sincerely,

Attachment:
1.  Directive 
2.  Record of Proceedings 

cc:
SAF/MRBR