RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03105
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20081127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Military Police) medically separated for chronic neck pain with intermittent radicular symptoms to the left shoulder as unfitting, rated at 10%.

CI CONTENTION:  “When released I received 10% for injuries received in Iraq from IED explosion.” His 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 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 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 20080812	VA* - (~2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain with Intermittent Radicular Symptoms to the Left Shoulder	5737	10%	Cervicalgia, Mild Degenerative Changes, with Mild C4-5
Radiculopathy	5242	10%	20081006	
Headaches	Not Unfitting	Headaches	8199-8100	0%	20081006	
Left Shoulder Pain	Not Unfitting	Tendinitis, Left Shoulder	5201	0%	20081006	
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 8	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20090108 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Chronic Neck Pain Condition.  The CI is right arm/hand dominant.  Pursuant to an IED blast, the CI was thrown inside of a military vehicle resulting in a left shoulder injury in September 2006.  Initially treated with medication, physical therapy and restrictions, he was able to complete his tour of duty and return home in November 2006.  Having persistent shoulder pain as well as increasing neck pain with radicular symptoms, he was evaluated by orthopedics in June 2007.  He denied absolute anesthesia or weakness in the left upper extremity.  Radiographic tests of the left shoulder and neck revealed rotator cuff tendonitis and multi-level disc bulges consistent with DDD without herniation, respectively.  An electro-diagnostic test performed on 18 September 2007 indicated a mild left-sided C6-7 radiculopathy.  He was not considered a surgical candidate and further treatment of manipulation and pain management did not resolve his painful symptoms.  He was permanently profiled in April 2008 with a diagnosis of left arm pain, cervical disc disease secondary to an IED blast and referred to a Medical Evaluation Board (MEB).

At the MEB narrative summary (NARSUM) examination (03 June 2008; 6 months pre-separation), the CI endorsed constant “knife-like” left neck pain intermittently radiating into the left shoulder and was also associated with altered sensation in his ‘4th and 5th’ left fingers upon turning his head to the left.  His physical examination revealed decreased and painful cervical ROM associated with tenderness.  There was no spinal deformity or spinal lesions present.  There was no muscle spasm, atrophy, or guarding present.  The upper extremity strength was normal.  There was no neuro-sensory deficit in evidence.

At the VA Compensation and Pension (C&P) examination (6 October 2008; 2 months pre-separation), the CI endorsed a constant, throbbing neck pain radiating to the left shoulder blade with ‘occasional’ numbness in the left ring and little fingers.  His physical examination revealed tenderness about the C3 to C6 para-spinal muscle mass.  The range-of-motion (ROM) of the neck revealed super-normal values for flexion and extension with painful motion.  The extremities were reported as normal.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Cervical ROM
(Degrees)	MEB Physical Therapy
~5 Mo. Pre-Sep
(20080715)	VA C&P
~2 Mo. Pre-Sep
(20081006)	
Flex (45 Normal)	35	(45) 50	
Extension (45)	40	(45) 50	
R Lat Flexion (45)	40	35	
L Lat Flexion (45)	35	35	
R Rotation (80)	60	60	
L Rotation (80)	60	60	
Combined (340)	270	280	
Comment	Painful motion; tenderness	Painful motion	
§4.71a Rating	10%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting neck condition slightly differently, they both rated it at 10% utilizing VASRD §4.71a codes of 5237 (Cervical strain) and 5242 (Degenerative spinal arthritis) respectively; citing limited ROM by the PEB and presumed painful motion by the VA.  Board members first agreed that sufficient evidence of painful motion IAW §4.59 was present to justify the PEB’s 10% rating near the time of separation.  Board members also considered application of §4.40 (Functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled,” and clearly, the persistence of painful motion was such the case in this condition.  Additionally, the multi-level degenerative changes (arthritis) of the neck found on X-rays also supported the VASRD 5003 criteria, but without ‘incapacitating episodes’ would rate a maximum and total of 10%.  There were no available alternative joint or analogous coding options which were applicable and or advantageous to the CI’s current 10% rating.  Board members agreed that §4.59 or §4.40 was supported by the evidence to achieve the minimum compensable rating of 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s adjudication for the chronic neck pain condition.

Board members also considered if the symptomatic left shoulder radiculopathy symptoms warranted an additional service disability rating.  Despite finding a ‘mild’ left-sided C6-7 radiculopathy on electro-diagnostic testing, the VA examination at 2 months prior to separation did not reveal any abnormal neurological deficit and shoulder ROM were non-compensable according to VASRD criteria.  Members agreed that the requisite link of neuropathy symptoms with functional impairment was not in evidence.  The pain component of the radiculopathy is subsumed under the general spine rating as specified in §4.71a.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the headaches and left shoulder pain were not unfitting conditions.  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.  Board members first agreed that the left shoulder pain was not a separately unfitting condition, but rather a manifestation of the not unfitting radiculopathy condition as described above and subsumed under applicable VASRD guidelines.  The headache condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The condition was reviewed and considered by the Board.  There was no performance based evidence from the record that the headache 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 headache and left shoulder pain conditions 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 cervical spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended left shoulder pain and headache 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.

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 XXXXXXXXXX, AR20160004034 (PD201403105)

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