RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02522
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060908

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Reserve E4, Cannon Crewmember, medically separated for “excessive tearing, right eye…right sided hemi-facial and neck muscle spasm…” and “left arm tremors…” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  “Please Consider All Conditions.”  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 based upon a 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 - 20060814	VARD - 20070723	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Excessive Tearing, Right Eye…	6099-6025	10%	OR Facial Dyskinesia w/Muscle Spasm…	8212	30%	20070102	
			Partial Loss of Masticatory Function	9905	30%		
			Left Eye Pain and Blurred Vision	6099-6009	NSC		
Left Arm Tremor	8199-8105	10%	Neck Pain with Left Arm Tremors…	8513-8520			
Psychological Factors	Not Unfitting	Major Depressive Disorder	9434	100%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Surgical Residuals: Ocular Tearing; Facial/Neck Muscle Spasms.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI developed eye, facial, and neck symptoms as titled above shorty after surgical removal of a stone contained in a salivary gland under the right jaw in April 2005.  The identified “spasm” condition was determined to be more consistent as a tremor and further described as “intermittent, but persistent [twitching] since surgery”.  Despite conservative treatment to include medications as well as local Botox injections, the CI did not achieve prolonged symptom improvement sufficient to allow unrestricted duty as a truck driver.  The MEB forwarded “restricted range of motion (ROM) of the neck with pain, hemi-facial spasms of the right side of face, and tremors of the left arm” for PEB adjudication.  

The MEB NARSUM examination on 23 March 2006, 7 months prior to separation, the CI reported right-sided facial twitching resulting in difficulty in opening mouth widely as well as limiting neck mobility and residual headaches.  Additionally, he endorsed a constant tremor in his left forearm and hand; “[He] sat on his left hand during the exam to control the motions).”  There was no subjective complaint or abnormal objective findings with regard to any eye symptom or condition.  The MEB physical examination (PE) revealed right facial spasms (described as “being present at almost all times” and “persistent”), “asymmetry” in mouth opening, and decreased neck ROM of 20 degrees of flexion and 35 degrees of extension accompanied with tenderness and painful motion.  Although there was no eye complaints noted at the NARSUM, an MEB addendum written 2 months later noted the following: “The tearing is what interferes with his ability to safely operate a motor vehicle, which is his primary MOS, and it is for this reason that the Soldier is not considered fit for duty as a truck driver.”  

At the 22 October 2007 VA Compensation and Pension (C&P) evaluation, performed 3 months after separation, the CI reported constant dull spasms in his neck with flare-ups occurring three times per week, lasting 1-2 days and aggravated by physical activities.  Additionally, he endorsed radiating pain and tingling into arms and head with resulting headaches as well as generalized joint pains.  In regards to activities of daily living (ADLs), the CI “…occasionally needs help dressing during flare-ups”.  His condition had no adverse impact or effect with driving.  His VA PE’s revealed significantly decreased and painful motion of the cervical spine.  One provider additionally noted that the cervical ROM of 20 degrees of flexion and 10 degrees of extension “…failed to match known pathology.”  There was a notable resting and action tremor of the CI’s left hand of “medium to fine” amplitude as well as “continuous right-sided facial spasms.”  There was no evidence of spinal spasms, guarding or weakness.  Cranial nerves were intact.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB listed all previously mentioned residuals in the “Disability Description,” but clearly noted that the “excessive tearing” was the single pathology that rendered the CI unfit.  Specifically, the PEB stated, “Muscle spasms were successfully treated with Botox injections, and tremor remains, but excessive tearing interferes with duty as truck driver.”  The PEB analogously rated the overall condition at 10% coded 6099-6025 (disorders of the lacrimal system; unilateral).  The VA rated the excessive tearing 30% coded 8212 (severe; incomplete paralysis of the 12th cranial nerve) and (limited motion of the temporomandibular joint articulation), respectively, based on the VA C&P examination 3 months after separation, citing incomplete paralysis.  Other conditions of left arm tremor and neck pain were found to be “Not Service Connected” due to the lack of definitive diagnoses causing such symptoms.  

The Board’s initial charge in this case was directed at determining if the PEB’s approach of combining the listed residual conditions under a single rating was justified in lieu of separate ratings.  Board members first considered and agreed that the unfitting unilateral eye condition under code 6025 has a maximum rating of 10% as currently adjudicated by the PEB.  Members then considered the PEB’s description of the CI’s condition as documented on Form 199 and concluded that the PEB erroneously noted that the only remaining physical abnormalities were the excessive tearing and the left arm tremor…for the “spasms” were successfully treated with Botox injections.  That was not the case in gaining complete resolution of the spastic conditions.  Any relief from the Botox treatments were temporary at best.  Therefore, the facial and neck spastic conditions were additionally considered for possible separate unfitting conditions.  After extensive deliberation, all Board members agreed that utilizing the same decision parameters surrounding the CI’s eye condition in relation to his MOS as a truck driver, the persistence of intermittent to near constant one-sided facial spasms (to include muscles surrounding the eye) would indeed support a finding of being separately unfitting and subject to an impairment rating.  Members also agreed that the most appropriate coding in this case was anatomically analogous to neuralgia of the fifth cranial nerve under code 8405.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separate disability rating of 10% (incomplete, moderate) for the right-sided facial spasm condition.  

In reference to the neck spasm condition, all board members acknowledged the significant and persistent loss of cervical ROM, but the question remained as whether or not the condition was separately unfitting.  Despite the limited motion, Board members placed great probative value in the VA’s comment of “His condition had no adverse impact or effect with driving” as to describe fitness to complete his truck driving duties.  Therefore, the Board did not find that the spasms of the cervical spine significantly interfered with satisfactory duty performance and so no separate disability rating was recommended.  

Left Arm Tremor.  The PEB separately rated the left arm tremor analogously under VASRD code 8105 (Sydenham’s chorea) for mild at 10%, citing interference with manual dexterity.  Electro-diagnostic studies revealed abnormal motor-units of the left upper extremity while at rest; indicating, abnormal flexor muscle firing.  Board members considered the diagnosis of “essential tremor” as noted in the case file and deliberated if it, as a standalone condition could be found as unfitting.  After extensive deliberation, members agreed that the persistence of an upper extremity tremor would indeed adversely interfere with the safe duty performance as a truck driver and therefore finds this condition as separately unfitting and possibly ratable.  IAW Alphabetical Listings of [VASRD] Analogous Codes, June 25, 2004, a condition of an essential tremor is analogized under 8105; as appropriately coded by the PEB.  Code 8105 contains five possible impairment levels of “mild” (10%), “moderate” (30%), “moderately severe” (50%), “severe” (80%) and “pronounced” (100%).  Board members then considered the impairment level of the left upper extremity tremor and determined that descriptors such as “persistent,” “constant,” “impressive,” and “course” to describe the resting tremor coupled with the example of having to sit on the left hand as to minimize motions, supported an impairment above the PEB’s “mild” 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the left arm tremor.  

Contended PEB Condition:  Psychological Factors.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  Although psychiatry listed “psychological factors affecting general medical condition,” no such specific factors were identified.  Additionally, psychiatry stated, “[The CI] does not need further follow-up for mood concerns” and “[The CI] did not have a disabling mental health diagnosis.”  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, 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:  In the matter of the right eye tearing condition, the Board unanimously recommends a disability rating of 10%, coded 6099-6025 IAW VASRD §4.84a.  In the matter of the residual right-sided facial spasm condition, the Board unanimously agrees that it was separately unfitting and unanimously recommends a disability rating of 10% coded 8405 IAW VASRD §4.124a.  In the matter of the left arm tremor condition, the Board unanimously recommends a disability rating of 30%, coded 8105 IAW VASRD §4.124a.  In the matter of the contended psychological 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.  

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Excessive Tearing; Right Eye 	6099-6025	10%	
Right-Sided Facial Spasms	8405	10%	
Left Arm Tremor	8105	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140519, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX AR20160016875 (PD-2014-02522)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA