RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02608
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army National Guard E5, Military Policeman, medically separated for “chronic neck pain” with a disability rating of 0%.  

CI CONTENTION:  CI contends neck pain and migraine headaches.  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 - 20070302	VARD - 20090203	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5237	0%	Left Upper Extremity Radiculopathy Associated with Cervical Spine, Mild Disc Degeneration C2-3-C5-6, Joint Degeneration C3-4-C45 (Claimed as Cervical Condition)	8512	20%	20090203	
			Cervical Spine, Mild Disc Degeneration C2-3-C5-6, Joint Degeneration C3-4-C45 (Claimed as Cervical Condition)  	5237-5243	20%		
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	10%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck pain condition began 4 years prior to separation after a HMMWV accident in August 2003, injuring both his head and neck.  Radiographic imaging (MRI) in January 2005, approximately 2 years before separation documented multilevel degenerative joint disease, mild degenerative disc disease and straightened (abnormal) curvature of the cervical spine.  Electro-physiologic testing in January 2005 showed mild chronic C5-C6 level radiculopathy affecting the right and left upper extremities.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “cervical degenerative disc disease at two levels with radiculitis” and “migraine headaches” for PEB adjudication.  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated May 2006, 13 months before separation, the CI reported that the neck injury caused severe migraines but denied recent symptoms.  The physical examination showed decreased sensation in the C5 (shoulder) distribution of the left upper extremity.  

At the MEB NARSUM examination performed on 11 July 2006, 11 months pre-separation.  The CI denied upper extremity weakness, and paresthesias.  The examiner documented cervical spine and muscle tenderness and normal motion, with normal strength, sensation (median and ulnar nerves) and reflexes of the bilateral upper extremities.  Flexion was described as “chin to the chest” and extension was to 40 degrees (both normal at 45).  

At a second MEB NARSUM examination performed on 26 January 2007, 5 months pre-separation, the CI reported daily 4/10 neck pain that occasionally caused a migraine when the pain reached 10/10.  The examiner “reconfirmed” the ranges of motion (ROM) documented at the 11 July 2006 orthopedic examination and added no evidence of paraspinal tenderness or spasm.  

At a primary care visit on 28 January 2008, 7 months post-separation, the CI reported left sided radicular symptoms of the left 4th and 5th fingers.  The examiner documented spasm of the neck with a “fairly normal” ROM.  

At two primary care visits in June and September 2008 (12 and 15 months after separation), examiners respectively documented paracervical muscle tenderness with no spasms and limited range of motion secondary to pain in all directions with normal strength, sensation and reflexes of the bilateral upper extremities.  

At the VA Compensation and Pension (C&P) examination in December 2008, 18 months after separation, the physical examination showed full flexion and extension with no pain and no limitations after repetition.  Neurosensory examination of the upper extremities was normal.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB assigned a 0% rating under the 5237 code (cervical spine strain), citing no spasm, radiculopathy, or tenderness and no significant loss in ROM.  The VA assigned a 20% rating using the 8512 code (lower radicular group, incomplete paralysis of, mild) and 20% using an analogous 5237-5243 code (cervical strain; intervertebral disc syndrome) based on the VA C&P examination 18 months post-separation, citing “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.”  There was intermittent documentation both prior to and after separation of spasm and muscle tenderness in support of a 10% rating (based on §4.59, §4.40 and §4.45), coded 5237 (cervical strain).  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.59 (painful motion), §4.40 (functional loss) and §4.45 (the joints), the Board recommends a disability rating of 10% for the neck condition.  

Contended PEB Condition.  

Migraine Headaches:  The Board’s main charge is to assess the fairness of the PEB’s determination that migraine headaches was not unfitting.  According to the January 2007 NARSUM, the examiner referenced a neurologist note from December 2004 that described the migraines as “improved” and “infrequent.”  There were no more entries regarding migraines pre-separation and no documentation of prostrating attacks.  Although the migraines were implicated in the commander’s statement, the migraines were not profiled, were not implicated by either NARSUM examiner, were not judged to fail retention standards, and adjudicated as not unfitting by the PEB.  After due deliberation, and 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 contended migraine headaches and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic neck pain condition and IAW VASRD §4.71a, the Board unanimously recommends a 10% rating coded 5237.  In the matter of the contended migraine headaches condition, 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 his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5237	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140530, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160011307, 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 severance 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 jurisdicti on.

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

Sincerely,

XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretarv of th e Army

Enclosure