RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	    CASE:  PD-2014-02817
BRANCH OF SERVICE:  Army	BOARD DATE:  20150508
SEPARATION DATE:  20090728

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for degenerative arthritis of the spine.  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 U3 profile and referred for a Medical Evaluation Board (MEB).  The “cervical spondylosis” and “cervical disc herniation” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded eight other conditions (gastro-esophageal reflux disorder [GERD], bilateral plantar fasciitis (PF), migraine headaches, esophagitis, colon polyps, thoracic paraspinal muscle spasm right greater than left, nicotine dependence, and opioid dependence) for PEB adjudication.  The Informal PEB adjudicated the cervical spine condition as unfitting, rated 10%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be either not unfitting or not compensable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions found unfitting and not unfitting by the physical evaluation board.”

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 20090617	VA* - based on Service Treatment Records (STR) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Spine…	5242	10%	Cervical Disc Herniation at C3-4, C5-6, and C6-7, with
Spondylosis to Include the Claim for Opioid Dependence	5243	10%	STR	
GERD 	Not Unfitting	Gastroesophageal Reflux Disease with Esophagitis	7399-7346	0%	STR	
Esophagitis	Not Unfitting					
Bilateral Plantar Fasciitis	Not Unfitting	Bilateral Plantar Fasciitis	5299-5279	0%	STR	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	NSC	STR	
Colon Polyps	Not Unfitting	Colon Polyps	7399-7319	NSC	STR	
Thoracic Paraspinal Muscle Spasm Right Greater than Left	Not Unfitting	Thoracic Paraspinal Muscle Spasms	5237	NSC	STR	
Nicotine Dependence 	Not Unfitting	No VA Placement	
Other x 1 (Not In Scope)	Other x 4 	
RATING:  10%	COMBINED:  10%	
*Derived from VA Rating Decision (VARD) dated 20100114 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  

Cervical Spine Condition.  The STR was limited on original clinical encounter documents, but did contain numerous emergency room visits for neck pain during 2008 and 2009.  The file remained inconsistent regarding the mechanism of injury whereby there was “no trauma” to striking his head against a bunk bed.  He described his neck pain as “sharp” and associated with headaches and blurred vision.  He did not endorse upper extremity numbness, tingling, or weakness associated with his painful neck symptoms.  Radiographs revealed multi-level degenerative disc disease in the cervical spine and “loss of normal lordotic curvature of the upper cervical spine.”  Neurophysiologic testing of the cervical spine and upper extremities were normal.  Specialty consultation determined that the CI was not a surgical candidate.  Despite pain management therapy, physical therapy, and high level pain medication, his symptoms persisted throughout the balance of his service career.  He refused offers for local injections and through continued use of narcotic pain medication; he became opioid dependent and was subsequently enrolled into two recovery programs to manage his dependency.  A permanent profile was issued in April 2009.  There were no periods of incapacitation.  At the MEB narrative summary examination on 27 April 2009 (3 months prior to separation), the CI endorsed constant neck pain made worse with movement, prolonged sitting or standing, maneuvering stairs and lifting greater than 10 pounds.  He endorsed the inability to complete housework such as sweeping, mopping, laundry, or dusting and additionally was unable to do yard work or drive due to his neck pain.  The physical examination revealed neck tenderness with “slight” right-sided spasm and loss of cervical lordotic curve.  There was also limited and painful motion of the cervical spine.  The diagnosis was a dual condition listed as cervical spondylosis and (multi-level) cervical disc herniation and his prognosis was noted to be “fair.”  There was no VA C&P examination in the case file.  A remote VARD (proximate to separation) indicated that even though the CI was a “no show” for his examination, the VA apportioned an original 10% rating citing, “Based on the evidence of record showing neck pain at discharge, we have resolved all reasonable doubt in your favor and assigned a 10 percent evaluation.”  The single (MEB-derived) goniometric range-of-motion (ROM) evaluation in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, is summarized in the chart below.

Cervical ROM
(Degrees)	MEB ~ 3 Mo. Pre-Sep
(20041204) 	
Flex (45 Normal)	40	
Extension (45)	35	
R Lat Flexion (45)	20	
L Lat Flexion (45)	25	
R Rotation (80)	45	
L Rotation (80)	60	
Combined (340)	225	
Comment	painful motion; (+) spasm; loss of lordotic curve	
§4.71a Rating	20%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the Service and VA titled the unfitting neck condition differently, they both utilized (in various combinations) similar codes of 5242 (degenerative spinal arthritis) and 5243 (intervertebral disc disease), respectively.  Board members first agreed that sufficient evidence of painful motion was present to justify the rating of 10% IAW VASRD §4.59.  Members then considered and extensively deliberated a higher impairment rating of 20% based upon the physical evidence of neck spasms concurrent with the loss of normal cervical lordotic curve as seen on the MEB examination.  Referencing the VASRD spinal criteria, the specific area of discussion centered on the criteria language of, “…or, muscle spasm or guarding severe enough to result in an abnormal gait, or abnormal spinal contour…”  The action officer opined that a paraspinal spasm described as “slight” and located only in the “upper cervical spine” would not be highly plausible of causing an anatomical abnormal curvature of the neck.  Persistent deliberations centered on either having the mere presence of “abnormal spinal contour” or was the noted spasm the actual “cause” or “result in” the contour abnormality for an increase in the disability rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that although present, the described upper cervical spasm was not evidenced to a degree of ‘resulting in’ an abnormal spinal contour and therefore, cannot recommend an impairment rating higher that the PEB’s current 10%.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that GERD, esophagitis, bilateral PF, migraine headaches, colon polyps, thoracic paraspinal muscle spasm, and nicotine dependence were 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 above listed conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All conditions were reviewed and considered by the Board.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  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 any of the contended conditions and so no additional disability ratings are 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 cervical spine condition and IAW VASRD §4.71a, the Board, by a majority vote, recommends no change in the PEB adjudication.  The single voter for dissent did not elect to submit a minority opinion.  In the matter of the contended GERD, esophagitis, bilateral PF, migraine headaches, colon polyps, thoracic paraspinal muscle spasm, and nicotine dependence conditions, 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.

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 20140613, 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 XXXXXXXXXXXXXXXXXX, AR20150018834 (PD201402817)

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