RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03207
BRANCH OF SERVICE:  Army	BOARD DATE:  20150529
SEPARATION DATE:  20020408

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E-6 (Combat Engineer) medically separated for right arm and leg pain post anterior cervical discectomy and fusion at C5/6.  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 MEB forwarded “right arm pain status post anterior cervical discectomy and fusion with herniated nucleus pulposus at C5-6,” “lumbar back pain with right S1 radiculopathy,” and “sarcoidosis” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “right arm and leg pain post anterior cervical discectomy and fusion at C5/6…” as unfitting, rated as a single condition at 10% for pain, with probable application of the US Army Physical Disability Agency (USAPDA) pain policy.  The sarcoidosis condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “PLEASE CONSIDER ALL CONDITIONS.”

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 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 20020311	VA* - (~8 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Arm and Leg Pain Post ACDF at C5/6…	5099-5003	10%	Status Post Anterior Fusion C5-6 …	5290	20%	20020718	
			Dysesthesias, RUE…	8599-8516	10%		
			Low Back Condition	5292	NSC		
Sarcoidosis	Not Unfitting	Sarcoidosis	6846	NSC		
Other x 0	Other x 0	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20020718 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The PEB combined the neck and back conditions under a single disability rating, coded analogously to 5003.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the neck and back conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Right Arm and Leg Pain Post Anterior Cervical Discectomy and Fusion at C5/6.  The CI had a long history of neck pain following a tank accident in 1994 which was initially treated with medications and physical therapy.  In 1999, he reported ongoing, chronic pain.  A magnetic resonance imaging (MRI) on 11 August 1999 documented multi-level disc degenerative disease (DDD) without cord compromise although displacement was noted.  He also had an injection of steroids and a pain killer without resolution of symptoms.  The DDD was confirmed on a CT myelogram (an x-ray study to look at the spinal cord) on 23 May 2000 and he subsequently had an ablation (destruction with heat) of the nerve root; this also failed to resolve his symptoms.  He then was taken to surgery on 3 November 2000 for the anterior cervical discectomy and fusion (ACDF) at C5-6.  He continued to have pain after surgery despite a good technical result.  On 6 April 2001, he was noted to have a normal neurological examination and no muscle atrophy.  He was referred to an MEB due to the ongoing pain.  At the MEB examination on 5 December 2001, the CI reported neck and back pain.  The examiner noted tenderness over the spine, but a normal neurological examination.  The narrative summary (NARSUM) was 4 days later and documented ongoing neck pain.  The CI reported variable sensory changes described as right sided pain to his fingers and toes as well as pain which radiated up and down his right arm and leg.  The range-of-motion (ROM) was normal other than forward flexion in which his chin was limited to three finger breadths of his chest.  The sensory, motor, and reflex examinations were normal.  The scar was well healed.  The CI was seen in physical medicine for neck pain on 30 April 2002.  The ROM was slightly reduced, but reflexes, sensation, and motor function were all intact.  At the VA Compensation and Pension (C&P) examination performed on 3 May 2002, a month after separation, the CI reported that his pain had improved after surgery.  He used a cervical collar at night and had pain down his right arm.  The examiner noted that an X-ray performed the previous August had shown a good repair.  Gait was normal and the ROM reduced in flexion, extension, and rotation.  Spasm was present.  Sensation and reflexes were intact, but upper extremity strength was 4 to 4+/5.  Repeat X-rays showed a good surgical repair and changes consistent with spasm.  At a physical therapy (PT) evaluation on 19 June 2002, the CI showed normal flexion, but reduced ROM in all other planes and extension.  Sensation was abnormal in the C4-5 and C7-8 nerve root distribution and strength was 4+/5 for the right arm.  A primary care note dated 12 October 2002 recorded fair ROM in all spheres.  An emergency room visit on 19 October 2002 documented a normal neurological examination.

The Board directed attention to its rating recommendation based on the above evidence.  It first considered if the neck was a separately unfitting condition when severed from the back and determined that the evidence clearly supports this.  It noted that the PEB rated the neck (with leg pain) condition at 10% using the code 5099-5003 (analogous to degenerative arthritis) with probable application of the pain policy.  The VA, using the old spine rules in effect at the time of separation, rated the neck at 20% using the code 5290 (limitation of motion of the cervical spine) for a moderate limitation in motion.  The VA also rated the CI at 10% for dysthesia (abnormal sensation) associated with the ACDF using the code 8599-8518 (analogous to moderate paralysis of the circumflex nerve, a peripheral nerve that supplies the deltoid muscle).  The Board first considered if an unfitting radiculopathy was present at separation.  While weakness and sensory changes were documented on some examinations, multiple examinations documented a normal neurological examination including the two which bracketed separation.  The Board determined that the evidence does not support the presence of an unfitting radiculopathy at separation.  It then considered the rating for the neck.  Again, the examinations were inconsistent over time and between examiners.  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 and disability rating for the neck condition.  The neck could be rated as a separate condition, but absent an additional rating for the back (discussed below); this provides no advantage to the CI.

Lumbar Pain with Right S1 Radiculopathy.  The CI was noted to have mild scoliosis (an abnormal curvature of the spine) on a chest X-ray performed 2 days after accession.  Subsequent X-rays of the lumbar and thoracic spine on 13 June 1994, following the accident, were normal.  The CI was treated in PT for back pain several times in 1994 and then the record falls silent until an MRI on 24 August 1999 done for low back pain which radiated into the right leg and was associated with right leg numbness and foot drop with activity.  Multi-level DDD was shown on the MRI.  He was referred to PT with some benefit.  An orthopedic evaluation on 28 September 2000 noted normal flexion (finger tips to the floor) and a normal neurological examination.  At the MEB examination, the CI reported neck and back pain.  No lower back abnormalities were documented by the examiner.  The NARSUM documented a normal neurological examination with a flexion of finger tips to within 6 inches of the floor.  The examiner diagnosed lumbar back pain with an S1 radiculopathy (however, the examination was normal).  The MEB determined that this was medically unacceptable.  The profile specified only the neck condition.  The commander noted that the CI could not wear a Kevlar helmet as his duty limiting condition (more likely secondary to the neck than a back condition).  At the VA C&P examination, the CI had a normal gait.  The lower back was not otherwise addressed.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the lumbar condition with the neck and noted that the CI had no neurological deficits and that the lumbar ROM was “within acceptable norms.”  The VA determined that the back condition was not service-connected.  For over a year prior to separation, the CI was not seen specifically for the back condition.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to support a determination that the back condition was separately unfitting at separation.  Even if it were found unfitting, the Board found no route to a rating higher than 0%, providing no advantage the CI.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended sarcoidosis 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 sarcoidosis was not profiled at separation, implicated in the commander’s statement, or judged to fail retention standards.  It was reviewed and considered by the Board.  There was no performance based evidence from the record that it 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 the sarcoidosis 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.  As discussed above, probable PEB reliance on the USAPDA pain policy for rating the neck condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the matter of the right arm and leg pain post ACDF condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  While the neck condition could be rated as a separate condition, this provided no advantage to the CI.  In the matter of the contended sarcoidosis conditions, 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 20140430, 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), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20160003079  (PD201403207)

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