RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX 	CASE:  PD-2014-01670
BRANCH OF SERVICE:  Army  	BOARD DATE:  20140709
SEPARATION DATE:  20040519		

  
SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13M, MLRS Crewmember) medically separated for a neck condition.  The neck condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  His profile allowed for alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The neck condition, characterized as “cervicalgia secondary to degenerative joint disease without radiculopathy” by the MEB was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition for PEB adjudication.  The Informal PEB adjudicated “chronic neck pain due to degenerative disc disease” as unfitting, rated 10%, citing criteria of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION: The CI wrote “please consider all conditions.” 

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting neck condition is addressed below.  The requested obesity condition, which was determined to be not unfitting by the PEB, is likewise addressed below.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  The other VA service-connected conditions were not identified by the PEB and are not within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records. 

RATING COMPARISON:  
   
Service IPEB – Dated 20040402	VA - (2 Days Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain due to DJD	5299-5237	10%	DDD, Cervical Spine	5242	10%	20040517	
Obesity	Not Unfitting	No VA Entry		
Other x 0	Other x 7	20040513	
Rating:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20040513 (most proximate to date of separation [DOS]).  

 ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation. 

Chronic Neck Pain due to Degenerative Joint Disease Condition.  Although the CI experienced intermittent neck pain since basic training in 1993, he did not present for clinical evaluation until September 2003.  Pain medication, physical therapy and injection did not alleviate his symptoms.  Magnetic resonance imaging (MRI) evaluation of the cervical spine showed multi-level degenerative disc disease and moderate left-sided spinal canal stenosis due to disc bulging at C5-C6 and C6-C7.  At the narrative summary (NARSUM) exam on 2 March 2004 (2.5 months prior to separation), the CI reported an inability to wear Kevlar or perform physical training due to his neck pain.  Sports activities, lifting weights, heavy pulling, twisting or working overhead exacerbated the pain.  Physical examination showed no muscle spasm.

At the VA Compensation and Pension (C&P) exam performed two days before separation, the CI reported pain in the neck that sometimes radiated down to the back intermittently 4-5 times per day.  Pain could occur spontaneously or as a consequence of activity.  Rest or medications could relieve the pain.  Medications permitted him to function with the pain.  There was no incapacitation or lost time from work.  Examination showed a normal gait and posture.  Muscle spasm and tenderness were absent.  Cervical spine X-rays were normal.

The goniometric range-of-motion (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 ~ 2.5 Mos. Pre-Sep	VA C&P ~ 2 Days Pre-Sep	
Flex (45 Normal)	45 (“greater than 60”)	45	
Extension (45)	10	40	
R Lat Flexion (45)	45 (60)	35	
L Lat Flexion (45)	45 (60)	30	
R Rotation (80)	60	80	
L Rotation (80)	60	75	
Combined (340)	265	305	
Comment	+Minimal tenderness		
§4.71a Rating	10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5237 code (cervical strain), while the VA also assigned a 10% rating under the 5242 code (degenerative arthritis of the spine).  The Board agreed that the combined ROM in evidence supported a 10% rating, but no higher.  There was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, and therefore the next higher 20% rating was not justified.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet a minimal rating under that formula.  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 chronic neck pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obesity was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The obesity condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  This was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the obesity condition 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 contended condition and so no additional disability rating is recommended.

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 chronic neck pain due to degenerative joint disease condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended obesity condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 20140417, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXX, AR20150006240 (PD201401670)

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:

Encl						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA