RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01608
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20080201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Construction Mechanic, medically separated for “multilevel degenerative disc disease, cervical spine C4/C7,” with a disability rating of 10%.

CI CONTENTION:  The CI stated he was just awarded 100% for disability based on VA Letter dated March 31, 2014 and enclosed a copy.  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 - 20070320	VARD - 20060711	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Multilevel Degenerative Disc Disease, Cervical Spine, C4/C7	5242	10%	Cervical Spondylosis with Traumatic Arthritis of Cervical Spine with Left Neck and Shoulder Pain and Left and Right Arm Numbness	5010-8610	30%	20060526	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Multilevel Degenerative Disc Disease, Cervical Spine, C4/C7.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM) the CI’s neck condition began following deployment to Iraq from March to October 2005.  There was no single specific episode of injury to the neck or exposure to severe trauma.  Cervical X-rays done in October 2005 indicated degenerative disc disease (DDD) involving C4 through C7.   At an orthopedic evaluation in October 2005, the CI reported neck pain with intermittent, “minimal” left upper extremity (LUE) pain, but no motor or sensory deficits.  The CI was determined to be physically qualified for separation and was separated from active duty in November 2005.

Following separation, outpatient VA treatment notes indicated that the CI reported continued neck and LUE pain and occasional weakness.  Magnetic resonance imaging performed in April 2006 indicated moderate cervical degenerative spine changes (spondylosis).

The CI was on light duty with physical limitations of “no lifting > 10 pounds, no convoys, limited flak vest/Kevlar” prior to his separation.  Multiple limited duty forms were issued from the CI’s civilian employer between 27 February 2006 and 23 May 2006 that recommended physical limitations of desk work as tolerated regarding limited neck movement and no lifting more than 10 pounds.  

At the VA Compensation and Pension (C&P) examination in May 2006, performed 20 months before separation, the CI reported neck and left shoulder pain with left arm numbness in the fourth and fifth fingers.  He reported flare-ups while working due to pulling wrenches.  Physical examination noted normal strength and reflexes (5/5) throughout.  The CI was noted to be right hand dominant.  Neck ROM was as noted in the chart below, with reported discomfort in the shoulders with ROM.  There was no additional impairment with repetitive use.  Testing to assess cervical nerve root tension (Spurling’s maneuver) was negative.  The VA examiner noted there was no evidence of spinal cord compression on the MRI noted above.

An orthopedic evaluation for the MEB performed 2 August 2006, 18 months before separation, noted “50% loss ROM in flex/ext & rotation, pain limited”, with decreased sensation, but whether of one or both UEs was not noted, with normal strength and reflexes.  The CI was referred for neurosurgical evaluation and a Limited Duty Board (LIMDU) was submitted.  

The non-medical assessment (NMA), dated 18 August 2006, 9 months after separation, and 18 months prior to separation, indicated the CI was not working out of his specialty because of his medical condition and had not missed any time from military duties.  

A neurological evaluation on 9 November 2006 noted normal strength, sensation and reflexes of all extremities and indicated the CI was not a surgical candidate.  Non-operative treatment to include medication and physical therapy was recommended.  

At the MEB NARSUM examination performed on 8 December 2006, 14 months before separation, the CI reported upper back and neck pain radiating to the left shoulder, with episodic bilateral hand numbness.  The MEB NARSUM physical examination noted neck ROM as indicated in the chart below, with no crepitus.  There was no scoliosis of the upper spine or UE sensory or motor deficits and reflexes were normal.  

Outpatient treatment notes between the time of the PEB adjudication in March 2007 and 4 months after the date of the CI’s transfer to the Retired Reserve (1 February 2008) noted the CI continued to report neck pain and bilateral radiation of pain to the UEs, with numbness and tingling, left greater than right and he was treated with physical therapy.  The UE symptoms were noted to be related to neck position.  Neck ROM during this time varied in an up and down fashion with flexion from 12 degrees to 45 degrees and combined ROM from 100 degrees to 310 degrees noted on serial exams, with four out of seven ROM evaluations noting flexion between 15 and 30 degrees and/or combined ROM less than 170 degrees.  Notes in the record indicated that the CI was employed as a school bus driver as of May 2007 and then as a driver for a retirement home between approximately June 2007 and May 2008.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5242 code (degenerative arthritis of the spine), based on ROM criteria.  The VA assigned a 30% rating using an analogous 5010-8610 code (neuritis—upper radicular group) for moderate incomplete paralysis of shoulder and elbow movements and consideration of §4.40, §4.45, and §4.59 concerning functional loss due to pain, with an effective date of the day after the date of separation from AD.  The Board noted that the VA rated the CI’s neck condition with a nerve code, however, the PEB adjudicated a single unfitting neck condition characterized as cervical DDD, without inclusion of a radiculopathy.  The Board therefore first considered a rating for the unfitting neck condition.

The Board noted that examinations prior to the PEB in March 2007, vary between a 10% rating and a 20% rating according to current VASRD rules for rating the spine, as do the majority of exams after the PEB, with the exception of a single examination after separation which noted flexion of 12 degrees with muscle spasm.  During the time up to the PEB adjudication, the record indicates the CI was working in his rate with his Reserve unit.  The CI did obtain employment at various positions as a driver in mid-2007 and notes well into 2008 indicated that he continued to work as a driver.

The Board deliberated whether a 10% or 20% rating was the fair and equitable rating of the neck condition based on the evidence in record.  Exams within 12 months before the PEB all supported a 10% rating.  However, following the PEB, multiple exacerbations of the neck condition were documented, that responded to physical therapy treatment.  There was no evidence in record that the CI’s cervical flexion was frequently or permanently limited to “15 degrees or less” to support the 30% rating, but there was evidence that ROM was recurrently limited to combined ROM of “not greater than 170 degrees” or cervical flexion of “greater than 15 degrees, but not greater than 30 degrees” due to flare-ups to support the 20% rating.  

The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI had intervertebral disc disease there were no 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.  

Therefore, the Board determined that the evidence supports a 20% rating for the neck condition at the time of separation, with consideration of functional loss (§4.40, §4.45, and §4.59) and no higher.  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 neck condition, coded 5242.   

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had symptoms of radiating pain, numbness and tingling, and occasional weakness documented in the treatment records; however, examinations indicated normal strength and reflexes, and there was no performance based evidence that sensory changes affected the CI’s job performance.  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)” and there was no evidence in this case that motor or sensory deficits existed to any degree that could be described as functionally impairing.  The Board therefore concludes that additional disability rating was not justified on this basis.  

BOARD FINDINGS:  In the matter of the neck condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  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	
Multilevel Degenerative Disc Disease, Cervical Spine	5242	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140409, 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 28 Mar 16 ICO XXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 30 Mar 16 ICO XXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 28 Mar 16 ICO XXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 28 Mar 16 ICO XXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 31 Mar 16 ICO XXXXXXXXXXXXXXX

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

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

     a. XXXXXXXXXXXXXXX, former USN: Assignment to the Temporary Disability Retired List for six months effective date of discharge with a 50 percent disability rating followed by transfer to the Permanent Disability Retired List with a final disability rating of 30 percent.

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

     c. XXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

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

     e. XXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 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.