RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02723
BRANCH OF SERVICE:  Army 	BOARD DATE:  20150417
SEPARATION DATE:  20090127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Heavy Construction Equipment Operator) medically separated for neck pain.  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 profile and referred for a Medical Evaluation Board (MEB).  The “cervicalgia secondary to cervical spondylosis at C5-C6,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (depression) for PEB adjudication.  The Informal PEB adjudicated his neck pain as unfitting, rated 20%, citing application of the Veterans 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 applicant request consideration of all conditions in his application.  His complete submission is at Exhibit A.

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 20081017	VA* - (~3 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Cervical Spine…	5242	20%	Cervical Spine Degenerative Disc Disease	5243	20%	20081022	
Depression	Not Unfitting	No VA Placement	
Other x 0 (Not In Scope)	Other x 6	
RATING:  20%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20090328 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:   

Neck Pain.  The CI‘s history of non-trauma related chronic cervical spine pain with right upper extremity weakness began in early 2007.  He participated in physical therapy and after 2 months his symptoms of right upper extremity weakness resolved; however, he had residual sensory deficit.  The CI was treated with injections, took narcotic medication and had a patch (fentanyl), but his pain persisted.  Radiographs of the cervical spine in June 2007 identified focal spondylytic changes most severe at C5-6. Repeat radiographs in August 2008 demonstrated mild C5-6 disc space narrowing consistent with degenerative disc disease.  The CI underwent orthopedic consultation on 22 August 2008 that noted the CI had a past surgical history of a neck biopsy (reason not documented; however, NARSUM documented excisional neck mass prior to service), and that his current complaint was neck pain which was being treated conservatively.   Surgery was not a treatment option since neck pain was the primary concern.  Physical examination documented “decreased” range-of-motion (ROM) flexion, extension, and lateral motions.  There was decreased pinprick sensation on the right with normal sensation in the left upper extremity.   Motor examination was normal (5/5) in all distributions of the upper extremities.  Cervical spine magnetic resonance imaging dated 22 August 2008 documented degenerative disc disease at C5-C6 with focal right paracentral disc osteophyte complex which effaces the right paracentral cord and causes moderate right neuroforaminal narrowing.  

At the NARSUM dated 16 September 2008, the CI noted he wore a narcotic patch which he changed every 48 hours and he took a narcotic medication four times a day for pain control.  He reported he has pain 100% of the time during the day; relieving and aggravating factors were not recorded. Focused examination of the cervical spine demonstrated mild to moderate tenderness over the right paraspinous muscles and superior trapezius, and tenderness was absent over the spinous processes and the left paraspinous muscles.  Muscle strength was recorded as 5/5, and sensory function was intact in all four extremities.  Evidence of radiculopathy was absent.  Goniometric ROM recorded flexion of 30 degrees, and extension of 35 degrees.  The diagnoses of cervicalgia secondary to cervical spondylosis at C5-C6, and depression were recorded.  The examiner opined that the neck pain prevented the CI from performing the functional activities required such as moving with a fighting load at least 2 miles, constructing an individual fighting position and performing rushes.  The CI was not able to participate in standard or alternate APFT events, and had a maximum lift and carrying capacity of 20 pounds.  

At the VA Compensation and Pension evaluation performed on 22 October 2008, 3 months prior to separation, the examiner documented evidence of radiating pain on flexion and extension and absence of muscle spasm.  There was no ankylosis of the spine, and ROM recorded flexion and extension to 30 degrees.  Both motor and sensory function was noted to be within normal limits.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA rated the condition at 20%, but used different codes.  The PEB used the 5242(degenerative arthritis), and the VA assigned its rating under the 5243 code (intervertebral disc code rated for ROM and not for intervertebral disc syndrome).  The higher rating of 30% requires cervical spine forward flexion of 15 degrees or less or favorable anklylosis; not supported by the evidence.  ROM flexion at both VA and NARSUM exams documented 30 degrees of forward flexion.  The Board noted the absence of incapacitating episodes of at least 4 weeks that would support a higher rating under the 5243 (intervertebral syndrome).  There were no additional codes to consider for a higher rating.  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 rating determination for the neck condition. 

Contended PEB Condition - Depression.  The Board’s main charge is to assess the fairness of the PEB’s determination that the major depression condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board reviewed the record in evidence and noted that the CI was diagnosed with depression in September 2008, approximately 5 months prior to separation, and was placed on medication.  On 2 October 2008, a psychiatrist for the MEB determined that the condition of depression was medically acceptable.  The depression was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.   There was no performance based evidence from the record that this 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 depression 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 degenerative arthritis 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 depression condition, 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 20140530, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXX, AR20150018718 (PD201402723)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA