RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01906
BRANCH OF SERVICE:  Army	BOARD DATE:  20150310
SEPARATION DATE:  20050407

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Helicopter Repairer) medically separated for a cervical spine condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The conditions “cervical brachial pain,” “disk degeneration,” and “cervical radiculopathy” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded “major depression disorder [MDD] with psychosis” for PEB adjudication.  The Informal PEB consolidated the three cervical diagnoses as a single unfitting condition, “neck pain ... [elaborating negative evidence for functional radiculopathy],” rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The mental health (MH) condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “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 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 20050111	VA* (~3 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck Pain ...	5243-5237	10%	Cervical Disc Disease w/Cervical Myofascial Pain 	5243	10%	20050627	
MDD	Not Unfitting	Depression a/w Cervical Condition	9434	30%	20050601	
Other x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20050916 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Cervical Spine Condition with Subsumed Neuropathy and Myofascial Pain.  The service treatment record (STR) confirms that this condition began in November 2002 with an injury during basic training (fall from a height).  The earliest treatment notes are from January 2003, and noted that the CI was still able to continue training, although experiencing neck and right trapezia/shoulder pain.  At that time cervical and right shoulder range-of-motion (ROM) were normal, and radicular complaints were denied.  Over time the CI began to complain of right upper extremity (RUE) paresthesia’s (abnormal sensation, tingling, burning, prickling) and subjective weakness.  Imaging (magnetic resonance) revealed “mild” bi-level disc disease (C5-7) without spinal or nerve root encroachment.  An electro-diagnostic study showed no evidence of a spinal radiculopathy (irritation of or injury to a nerve root), but did indicate some median nerve impairment (likely reason for “cervical brachial pain” MEB submission).  Both rheumatology (consulted for “myofascial pain”) and neurosurgical consultants detailed normal neurologic findings (5/5 strength all RUE groups) and opined that there was not a clinical radiculopathy (neurosurgery recommending no surgery).  There are numerous STR entries indicating grossly normal ROM of the neck and shoulder, although some note a decrease in rotation (other planes normal, but painful motion noted); and, there are numerous STR entries confirming normal neurologic findings.  There are no STR entries documenting significantly limited ROM of the neck or shoulder, significant (or consistent) neurologic findings, or periods of incapacitation.

The narrative summary (NARSUM) was conducted on 2 September 2004 (7 months prior to separation).  It described the pain (rated 6-9/10) as “constant with burning type sensation in his right shoulder”, and noted that the “paresthesia in his [RUE] has diminished somewhat.”  Noted physical limitations were weight loads (flak, Kevlar), lifting over 25 pounds, and sit-ups or push-ups.  The NARSUM physical exam documented a normal gait, cervical tenderness, “normal” upper extremity exam, “full active” ROM of all upper extremity joints, and normal neurological findings with 5/5 strength of upper extremity muscle groups.  The NARSUM cited physical therapy cervical ROM measurements that met or exceeded VASRD §4.71a normal values (flexion 45 degrees, combined 340 degrees) in all planes.  A VA Compensation and Pension (C&P) examination was conducted on 27 June 2005 (3 months after separation).  It documented “severe, constant pain [of the] right shoulder and spine ... [and] ... tingling down shoulder from the neck, it gets numb and burns sometimes,” and noted “moderate” non-specific physical limitations.  The VA physical exam recorded normal gait and spinal curvature, tenderness, “moderate” spasm, normal strength without detailed neurologic findings, and a grossly normal extremity exam without specific reference to the right shoulder.  No VA measured cervical (or RUE) ROM was provided.

The Board directed attention to its recommendations based on the above evidence.  It is clear that the PEB subsumed trapezia myofascial limitations and neurological symptoms (per the separate MEB submissions) in its rating under 5243-5237 (intervertebral disc syndrome rated as cervical strain).  The PEB’s 10% rating was for tenderness with normal ROM under the §4.71a spine rating criteria, and is accurate for the MEB evidence.  The VA’s 10% rating was also under spine rating criteria and likewise subsumed the myofascial component.  The Board entertained separate and additional rating for the myofascial component under a muscle or shoulder joint code; but, members agreed that separate conditions could not be reasonably justified as individually unfitting for service rating; and, furthermore that to do so would not comply with VASRD §4.14 (avoidance of pyramiding) for one or both of the ratings so derived.  The Board further considered whether the associated brachial neuropathy warranted an additional disability rating; but, members agreed that the requisite link of the neuropathy with functional impairment was not in evidence.  The pain component is subsumed under the general spine rating as specified in §4.71a; and, there were no sensory or motor deficits in evidence at separation.  There are no §4.71a spine criteria in evidence which would support a rating higher than 10%, and no documentation of incapacitating episodes which would provide for a higher 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 of the cervical spine condition (subsuming trapezia myofascial strain and residual neuropathy).

Contended MH Condition.  Prior to the MEB referral for the cervical condition in March 2004 there is no STR evidence of any MH complaint, diagnosis, or treatment.  A health assessment from February 2004 specifically denied any MH treatment or concerns.  The medication profile indicates that the earliest treatment with psychoactive medication was in June 2004.  At that time the CI was prescribed Klonopin (anxiety) and Celexa (anti-depressant, switched to Prozac a month later), although the associated clinical entries are not in evidence.  The MEB DA Form 2807-1 performed in July 2004 recorded a complaint and diagnosis of depression, but an addended mental status evaluation was normal in all details.  The last temporary profile for the cervical condition was in September 2004 (7 months prior to separation) and was designated S1.  The permanent profile 3 months later listed MDD with an edited change to S3, but listed no MH-specific limitations or proscription of weapon access.  The commander’s performance statement, albeit dated back to June 2004, did not comment on any MH diagnosis or issues; and, documented that the CI was functioning well in his assignment to the mail room; i.e., “reports to all formations and work calls on time” and “attitude remains satisfactory.”

A psychiatric addendum to the NARSUM was dated 11 November 2004 (5 months prior to separation) and incorporated three earlier evaluations not elsewhere in evidence.  It documented marital discord and separation attributed to the CI’s medical issues, and indicated that he had been referred for MH evaluation by a marriage counselor.  Symptom details were cursory, but included “sees thing [sic], panic thoughts, feel's it is real” and paranoia.  The service psychiatrist opined, “Even though the depression appears directly related to his medical illness, it is of sufficient duration and severity to meet criteria for Major Depression Disorder with psychosis.”  The examiner added, “In the absence of his physical problems, his depression alone would likely represent a mild disability expected to respond to relatively brief (6-12 months) of treatment ... [and] ... would not prevent him from being retained in active duty service.”  The MEB’s DA Form 3947 submission, however, designated MDD as failing retention standards.  A VA psychiatric evaluation was conducted on 1 June 2005 (2 months after separation) and documented that the CI remained unemployed, but was “currently working to obtain a license as a power plant operator.”  The examiner noted “a history of brief psychotic symptoms” that had resolved; and, as with the service psychiatrist, linked the depression to the pain and medical issues (along with other situational factors).

The Board directed attention to its recommendation based on the above evidence.  The Board’s main charge is to assess the fairness of the PEB’s determination that the MH condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the reasonable doubt standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  An established principle for fitness determinations is that they are performance-based, and there is no directed evidence in this case which examples any compromise in performance linked to psychiatric impairment.  Although the diagnosis of MDD was submitted as failing retention standards, that conclusion appears to run counter to the MEB psychiatrist’s stated assessment.  The S3 profile was in effect only the last few months of service and did not impose any definitive psychiatric limitations.  The commander’s statement did not implicate any psychiatric limitations and, conversely, suggests that the CI was functioning adequately within the confines of his physical limitations.  The VA C&P evidence documents satisfactory occupational pursuits in close proximity to separation.  Furthermore, the evidence clearly indicates that the MH condition did not surface until after MEB referral; rendering the fitness determination subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral); which stipulates, “If the evidence establishes that the member adequately performed his or her duties until the time the member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  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 major depression disorder; rendering it ineligible for disability rating.

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 cervical spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended major depression disorder, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20140428, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150013528 (PD201401906)

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