RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01601
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070523

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Motor Transport Operator, medically separated for “chronic neck and shoulder pain” with a 10% disability rating.  

CI CONTENTION:  The applicant asks that all his service connected conditions be considered.  The CI’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 - 20070420	VARD - 20080205	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck and Shoulder Pain Associated with Torticollis	5299- 5237	10%	Cervicalgia with Spasmodic Torticollis and Right Shoulder Impingement Syndrome	5237	20%	20070809	
Major Depression		Not Unfitting	Major Depressive Disorder	9434	30%	20070809 	
Obsessive Compulsive Disorder	Not Unfitting					
Gastroesophageal Reflux	Not Unfitting	No VA Placement	
Bilateral Hearing Loss	Not Unfitting	Tinnitus	6260	10%	20070809	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Neck And Shoulder Pain Associated With Torticollis.  The service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM) dated 4 April 2007 indicated the CI developed an upper respiratory infection in June 2006 that resulted in pleuritic type pain of the left chest.  To relieve that pain, the CI received a costal nerve injection.  Within 30 minutes he noted tightening in his neck.  Several days later he noted swelling in the neck and difficulty swallowing.  He underwent X-ray evaluation and a CT (computed axial tomography) scan of the neck, both of which were normal.  An otolaryngologic examination in August 2006 noted subjective facial/neck numbness/tingling with an etiology that was unclear.  Magnetic resonance imaging (MRI) of the brain was unremarkable.  A mental health evaluation and a voluntary inpatient hospitalization were undertaken.  A psychologist opined “the probable source or this...man’s current somatoform disorder is unlikely to be psychological.”  According to the NARSUM a neurologist felt the CI had a dystonia (a movement disorder in which sustained contractions cause twisting and repetitive movements or abnormal postures).  A second neurologist made the diagnosis of torticollis (twisted neck with head tilt or wryneck), while a third neurologist felt the diagnosis of torticollis was incorrect, but documented the pain and persistent muscle spasms of the right levator scapula and superior trapezius muscles.  Referral to a movement disorder specialist, acupuncture, and possible use of Botox were discussed with the CI.  Physical therapy did not improve the CI’s symptoms.  Medication treatments included Valium (diazepam, a muscle relaxer), clonazepam (a medication used to treat anxiety), which improved the neck pain and spasms, Naprosyn (naproxen, a nonsteroidal anti-inflammatory drug (NSAID)), and amitriptyline (an antidepressant used for nerve pain).  

The CI described constant right-sided and posterior neck and shoulder pain with a severity of 3.5/10.  Activities that exacerbated the pain included driving, running, wearing protective gear, and performing physical therapy.  Pain rose to 9/10, which rendered him unable to move his neck or to touch his neck or shoulder.  He also had intermittent muscle spasms.   At a neurology examination dated 23 February 2007 the CI maintained a left ear down tilt of the head with compensatory elevation of the left shoulder.  There was tenderness to palpation of the levator scapulae, the trapezius, and paraspinal and sub-nuchal muscle groups on the right.  There was also exquisite tenderness to palpation of the right nuchal ridge in the vicinity of the greater occipital nerve.  There were palpable muscle spasms of the right trapezius and levator scapular muscles.  The neurologic examination was unremarkable and muscle strength was normal.  The CI was assessed as suffering from persistent muscle spasms of the right levator scapulae and superior trapezius with associated myalgia and occipital neuralgia.  The examiner opined there was also an element of psychological factors associated with this chronic painful condition.  The NARSUM examination reflected the neurology examination.  The range-of-motion (ROM) measurements are in the chart below.  The CI had moderate to severe neck pain during the ROM movements and the ROM was reduced secondary to pain.  The NARSUM diagnosis was right neck and shoulder pain associated with muscle spasms of the right trapezius and right levator scapula unresponsive to all available and appropriate treatment modalities.

A permanent U3 profile was assigned on 21 February 2007 with restrictions of all physical fitness training and all military functional activities except wearing a protective mask and all chemical defense equipment.  Additional restrictions include no wearing of Kevlar, load bearing equipment or a rucksack, no exercises involving the neck, and no running or jumping.  The commander’s statement dated 5 March 2007 indicated the CI worked outside of his primary Military Occupational Specialty (MOS) because his condition made it unsafe for him to operate a military vehicle.  The commander noted the CI suffered from constant pain and stiffness in his neck, which gave him limited movement and flexibility, and he could not properly check his side-view mirrors or his “blind spot.”  At the MEB examination the CI reported on DD Form 2807-1, Report of Medical History, dated 20 March 2007, swelling in the neck (torticollis), shoulder pain with chronic limited motion, numbness in the right side of the face and head (pins and needles feeling), and neck and shoulder pain caused loss of motion in the right arm and shoulder.  The examiner noted on DD Form 2808, Report of Medical Examination, dated 4 April 2007, the CI’s head and neck were positioned at a 20 degrees left lateral tilt; there was tenderness to palpation over the right posterior neck and right trapezius muscle; and there was spasm of the right trapezius muscle.  
At the VA Compensation and Pension (C&P) examination dated 9 August 2007, performed 3 months after separation, the CI reported a history of whiplash in 2005 when he was deployed.  Neck pain and spasm of the neck muscle including the right shoulder pain started upon return from deployment.  The pain was a combination of dull ache with burning, sharp and shooting pain, which was treated with clonazepam and amitriptyline.  He did not use a neck brace or ambulation aids and had no incapacitating episodes in the prior 12 months.  On examination the CI had an antalgic gait, but could walk on his toes and heels and did tandem walking.  His neck was straight with loss of cervical lordosis and he had obvious spasm of both the right and left sternocleidomastoid muscles.  He tilted his neck on his left side to compensate for the pain.  On palpation there was tenderness as well as spasm of the neck muscles including the muscles of the upper back area.  There was objective evidence of painful motion, spasm, and tenderness, but no weakness.  Sensory examination was normal as was muscle strength.  The right shoulder pain was aggravated with any kind of neck movements.  The CI had a little difficulty to reach out for overhead objects by his right hand and had mild tenderness.  Forward flexion of the shoulder was 0-140 degrees, abduction was 0-100 degrees, external rotation was 0-60 degrees, and internal rotation was 0-70 degrees.  There was pain at the endpoint of all motions, but no loss of motion with repetition.  An X-ray of the shoulder had a suggestion of minimal inferior rim-osteophyte formation (arthritis) about the glenoid (shoulder joint).  

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating using code 5299-5237 (cervical strain) for chronic neck and shoulder pain associated with torticollis.  The VA assigned a 20% rating using code 5237 for cervicalgia with spasmodic torticollis and right shoulder impingement syndrome.  The Board sought a route to a higher rating and noted both the PEB and the VA combined neck and shoulder pain for rating purposes.  

It is clear that there are various related diagnostic components of the disability (torticollis) in this case; and, members first agreed that there were not separate conditions which could be reasonably justified as separately unfitting; nor would separate ratings likely be achievable without violation of VASRD §4.14 (avoidance of pyramiding).  A 20% rating for the torticollis in this case is achievable since the combined ROM of the cervical spine was not greater than 170 degrees, albeit an inclinometer rather than a goniometer was used to obtain the measurements.  However, the VA examination performed 3 months post-separation has significant probative value since its examination was timely and performed with a goniometer and both the flexion at 30 degrees and the combined ROM of 170 degrees are congruent with a 20% rating despite the VARD indication of a combined ROM of 185 degrees based on listing the left lateral flexion at 40 degrees rather than the examination findings of 25 degrees.  A higher rating could not be found in the absence of forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  The Board also considered use of code 8199-8103 (tic, convulsive) for torticollis; however, although the CI had torticollis as a diagnosis, there was no evidence of frequent movement or twisting of the neck. Instead he apparently had a head tilt to the left to alleviate the pain of the sternocleidomastoid muscles.  Therefore, even if code 8199-8103 were a consideration, a mild rating of 0% would offer no additional or overall benefit to the CI.  The Board then considered whether an additional Service rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, a radiculopathy 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 recommends a disability rating of 20% for the chronic neck and shoulder pain associated with torticollis condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obsessive compulsive disorder, major depression, gastroesophageal reflux and bilateral hearing loss 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 obsessive compulsive disorder, major depression, gastroesophageal reflux, and bilateral hearing loss were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   

Obsessive Compulsive Disorder (OCD).  In September 2006 the CI reported obsessive-compulsive symptoms.  He tied his shoe laces in a certain manner and dressed in a certain way and the actions appeared to be related to thoughts that he could ward off the death of loved ones by the ritual.  The CI recognized this behavior as irrational, but felt compelled to repeat the behavior.  He indicated there was more to his obsessions, but was reluctant to discuss the thoughts.  In late September he reported he tied his shoes up to 15 times in the morning and repeatedly dressed and undressed.  He refused to take medication and continued to have episodic obsessive compulsive symptoms.  A note dated 9 April 2007 indicated the CI had classic OCD symptoms that had not interfered with his duty performance.  

Major Depression.  The CI was referred for evaluation of a depressed mood and anxiety in August 2006 after frequenting the Emergency Room on multiple occasions with no specific medical findings.  At the end of the month he was still depressed and continued to be preoccupied with his somatic symptoms. Venlafaxine (an antidepressant medication) was prescribed and he took clonazepam for the muscle spasms.  In January 2007 the CI appeared depressed and concerned as well as preoccupied with his somatic problems.  It was explained to the CI that there were no clear boundaries between a psychiatric disorder and an organic disorder.  The CI endorsed a depressed mood, irritability, anxiety, feeling weak, feeling hopeless, and loss of interest in previously enjoyed activities. By February 2007 the CI continued with a depressed mood.  His speech was slow and his affect was constricted.  He spoke with effort and manifested minimal movement of the mouth, head, and neck.  The diagnosis of major depression, single episode in partial remission was made.  In a note dated 9 April 2007 the CI was noted to have symptoms of major depression, which was in remission.  At the VA C&P initial evaluation for post-traumatic stress disorder (PTSD) the CI indicated he developed symptoms of depression because of his muscle tension, chronic pain, and torticollis.  On examination the CI appeared to be tense, edgy, and depressed.  He was well oriented for time, place, and person.  There was no evidence of any active hallucinations or delusions.  Concentration was normal and his memory and recall was intact as was his judgment.  There was no evidence of any elusiveness of associations, flight of ideations, or pressured speech.  There were no obsessive thoughts or compulsive action and he denied being actively suicidal or homicidal.  The diagnoses of major depression and PTSD were made and his Global Assessment of Functioning (GAF) was 55-60 (moderate symptoms or moderate difficulty in social, occupation, or school functioning).  

Gastroesophageal Reflux Disorder (GERD).  In 2006 the CI had throat pain on swallowing on the right side, but at a later date he had no nausea, no vomiting, and no diarrhea.  Ranitidine (an antacid and antihistamine) was prescribed in August 2006 and rabeprazole (a proton pump inhibitor) was prescribed in 2007 for heartburn.  The CI reported indigestion at the MEB examination and the gastroesophageal reflux met retention standards. 

Bilateral Hearing Loss.  In a hearing conservation audiogram in December 2006 the CI had dB decrements of 10 at 500 Hz, 5 at 1000 Hz, 25 at 2000 Hz, 35 at 3000 Hz, and 35 at 4000 Hz on the left and 10 at 500 Hz, 0 at 1000 Hz, 0 at 2000 Hz, 25 at 3000 Hz, and 45 at 4000 Hz.  The CI was assigned an H1 profile for bilateral high frequency for loss impacting speech perception in March 2007.  He was recommended for hearing aid evaluation and was fitted and issued size small triple-flange earplugs and was counseled on the proper use.  At the VA C&P examination the CI reported trouble comprehending conversational speech especially with background noise.  At the VA examination he had an average 16.25 dB loss on the right ear and a 15 dB loss on the left ear.

The aforementioned was reviewed and considered by the Board.   There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation 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 chronic neck and shoulder pain associated with torticollis condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the contended obsessive compulsive disorder, major depression, gastroesophageal reflux disorder, and bilateral hearing loss 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	
Chronic Neck and Shoulder Pain Associated with Torticollis	5299-5237	20%	
COMBINED	20%	

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

AR20160007306, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severa9ce pay to a permanent retirement with disability.  I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army

Enclosure