RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02982
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Infantryman) medically separated for “cervical degenerative disc disease [DDD] with congenitally narrowed spinal canal ... no evidence of motor neurologic deficit,” rated at 10%.

CI CONTENTION:  “Please consider all conditions.” 

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 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:  

IPEB – Dated 20071025	VA* - (~2 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical DDD ...	5299-5242	10%	Cervical DDD (subsuming RUE radiculopathy)	5243	30%	20080328	
Hearing Loss	Not Unfitting	Hearing Loss, Right Ear	6100	0%	20080324	
Other x 0 (Not In Scope)	Other x 9	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20080728 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Cervical Spine Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of an onset of neck pain following a motor vehicle accident (minor vehicular damage) in August 2006 (17 months pre-separation).  The CI experienced persistent neck pain and magnetic resonance imaging (MRI) demonstrated multilevel DDD (C4 to C7) with some neural encroachment from congenital and arthritic processes (shortened pedicles with canal stenosis, facet hypertrophy, spondylolysis, osteophytes).  Multiple STR entries document the absence of radicular symptoms and normal neurologic findings (5/5 strength), and neurosurgery opined that there were no surgical indications.  There are multiple STR entries commenting on range-of-motion (ROM) which describe full or modestly decreased ROM (25% reduction of bilateral flexion per physical therapy [PT]).  Repeat MRI’s closer to separation demonstrated stable DDD, but no focal nerve impingement.  Formal ROM measurements for the MEB by PT were conducted 27 June 2007 (7 months pre-separation) and recorded 30 degrees flexion (normal 45) and combined ROM of 225 degrees (normal 340).  For unclear reasons repeat PT measurements were performed in November 2007 (2 months pre-separation after the NARSUM and IPEB), and recorded flexion 20 degrees and combined 120 degrees.  There is no STR documentation of more significant ROM limitation, abnormal spinal curvature, significant neurological deficits, or incapacitating episodes

The NARSUM was conducted 22 August 2007 (5 months pre-separation) and documented constant pain rated 6/10 without mention of radicular symptoms.  Functional limitations were running, profile restrictions, and interference with driving.  The physical examination recorded tenderness, “mild” spasm, and normal gait and contour.  Bilateral upper extremity strength was “barely 5/5 ... reduced effort due to pain, not weakness.”  The NARSUM referenced the PT ROM measurements from June (above).

A VA Compensation and Pension (C&P) examination was conducted 28 March 2008 (2 months post-separation), and the only copy which the Board could obtain does not contain the narrative history and physical examination findings, only imaging reports.  The VA rating decision, however, contained adequate details from the C&P examination probative to the Board’s rating recommendation.  It described constant pain rated 8/10 with bilateral upper extremity radiation.  There was no documentation of functional limitations or note of interim injury or other exacerbation of the condition.  The physical exam findings cited were spasm, tenderness, and normal gait.  Neurologic findings were not documented.  The ROM evidence was flexion to 10 degrees and an extraordinarily limited combined ROM of 20 degrees.  The VA provided electrodiagnostic (EMG) testing (9 October 2007, 3 months pre-separation) which was interpreted as a “mild” right C6/7 radiculopathy.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5242 (degenerative arthritis of the spine) referenced the PT measurements from the NARSUM; although, it is noted that the VASRD §4.71a spine formula stipulates 30 degrees cervical flexion as the threshold for a 20% rating.  A 20% rating is also firmly supported by the additional PT ROM measurements preceding separation.  The VA’s 30% rating under 5243 (intervertebral disc syndrome) cited the C&P ROM.  A 30% recommendation conceding probative value to the post-separation VA ROM evidence was considered; but, members agreed that these severely compromised ROM measurements were very inconsistent with the preponderance of Service evidence and with reasonable clinical expectations for the pathology.  They would indicate a nearly completely immobilized neck which was in conflict with all other evidence.  The Board considered whether additional rating could be recommended under a peripheral nerve code for the associated radiculopathy.  Although a right upper extremity radiculopathy was demonstrated by the VA EMG study, it was explicitly subsumed in the spine rating and no separately ratable neuropathy was identified.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  There is no exam evidence of any objective weakness with functional implications, and there were no sensory complaints.  There is thus no evidence of significant functional impairment from the associated radiculopathy, and the Board cannot support a recommendation for additional disability rating on this basis.  There is no evidence for incapacitating episodes which would support a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 20% rating for the cervical spine condition, preferring code 5242 for its clinical compatibility.

Contended Hearing Loss.  The CI was noted with a modest bilateral sensorineural hearing loss on audiometric testing as part of the MEB process.  It was cursorily noted in the NARSUM and forwarded as medically acceptable, and did not warrant a profile change from H1.  The VA testing identified only a right sided hearing deficit.  There was no compensable hearing loss (IAW VASRD §4.85) on either audiogram.  The condition was not identified by the commander.  

The Board directed attention to its recommendation based on the above evidence; and, its main charge with respect to this condition is an assessment of the fairness of the PEB’s determinations that it was not unfitting.  The Board’s threshold for countering Service fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The condition was not profiled, implicated by the commander, or judged to fail retention standards.  All members agreed that there was no performance based evidence suggesting that it significantly interfered with duty performance; and, even if conceded as unfitting and ratable, it would not result in a compensable 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 fitness determination for the hearing condition; thus, it cannot be recommended for additional 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, the Board unanimously recommends a disability rating of 20%, coded 5242, IAW VASRD §4.71a.  In the matter of the hearing loss 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. 

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	RATING	
Degenerative Disc Disease, Cervical Spine 	5242	20%	
Sensorineural Hearing Loss	Not Unfitting	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140516, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	
AR20160005499, 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 to 20% 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 jurisdiction.

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

Sincerely,

Enclosure ·