RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03382
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070212

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Infantryman, medically separated for “chronic neck pain,” with a disability rating of 10%.

CI CONTENTION:  The CI contends his unfitting condition as well as PTSD in their application.  The CI’s 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 Physical Evaluation Board (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:  

SERVICE PEB - 20061109	VARD - 20070523	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5299-5237	10%	Degenerative Disc Disease, Cervical Spine	5243	20%	20070429	
			Gunshot Wound, Neck, with Retained Shrapnel	5322	10%	20070429	
Adjustment Disorder	Not Unfitting	Major Depressive Disorder	9434	30%	20070430	
		Post-Traumatic Stress Disorder	9411	NSC	20070430	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI‘s history of neck pain begun after he was struck with shrapnel in August 2004.  He underwent foreign body removal and debridement; however, some shrapnel remained in his neck and jaw area.  His pain was described as constant moderate that started at the left side of the neck and radiated to the right side into the shoulder.  The CI underwent evaluations with neurology, pain management and physical therapy.  He was not able to tolerate the nerve conduction study procedure designed to evaluate neuropathy, and attempts to manage his pain were not successful.  Radiographs of the cervical spine in July 2006 demonstrated normal cervical spine and small shrapnel overlying the right side of the mandible. Magnetic resonance imaging of the cervical spine demonstrated slight broad disc bulge at C5-C6.  The NARSUM was conducted in September 2006, approximately 5 months prior to separation.  The CI reported he had pain with numbness and tingling down his left arm to his elbow.  He had neck muscle spasms and fatigue.  His neck pain was aggravated by physical activity and by lying down in certain positions.  Physical examination recorded minimal tenderness to palpation of the cervical musculature, and no spasms.  There was normal motor strength in all extremities and sensory function was intact.  Range of motion (ROM) of the cervical spine documented flexion to 25 degrees (normal=45), extension to 20 degrees (45) and combined ROM of 170 degrees (normal 340).  ROM measurements recorded by physical therapist for the MEB, approximately 4 months prior to separation, documented cervical flexion on average of 21 degrees, and extension of 20 degrees.  

The VA Compensation and Pension (C&P) exam was accomplished approximately 3 months after separation.  Physical examination documented the presence of a superficial stable round scar on the left neck without deformity, and measured 0.5 cm.   Evidence of muscle spasm, guarding or tenderness was absent.  The CI had normal sensory and motor strength exams, and radicular symptoms were not recorded.  ROM documented forward flexion of the cervical spine to 20 degrees and extension to 20 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB used the analogous coding 5299-5237 (cervical strain) and assigned a 10% rating, citing “cervical range of motion limited by pain, with localized tenderness.”    The VA assigned a 20% rating under the 5243 code (intervertebral disc syndrome) and a 10% rating for retained shrapnel under the 5322 code (group XXII, muscles of the front of the neck).   The Board is required to evaluate ROM based on the VASRD and its’ directive.  The VA rates limitation of motion due to pain, at the point in which the examinee can no longer continue the motion.  The NARSUM examiner recorded forward flexion to 25 degrees; however, that examination was remote from the date of separation and therefore, considered less probative.  The examination conducted by physical therapy 4 months before separation documented ROM flexion to average of 21 degrees, and 3 months after separation, the VA examiner recorded 20 degrees of flexion.  Board members agreed at the time of separation, the ROM for flexion was greater than 15 degrees but not greater than 30 degrees, and therefore concluded, the 20% rating was sufficiently supported. There were no additional spine codes to consider that would support a higher rating.  

The Board next considered if there was evidence to support the use of the 5322 muscle code.  VASRD §4.56 (evaluation of muscle disabilities) provides rating for muscle damage that display cardinal signs and symptoms of muscle disability such as loss of power, weakness, lowered threshold of fatigue, fatigue pain, and impairment of coordination and uncertainty of movement.  In order to achieve a 10% rating, there must be evidence of moderate disability of muscle function with a documented history of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles.  The CI reportedly had retained shrapnel in the mandible, which could possibly interfere with chewing and speaking; however, there was no mention of fatigue with any movement of the mandible, and there was no documented evidence of nerve damage to any muscle of the head or neck.  The Board found insufficient evidence or documentation of such injury, and therefore, a rating under the 5322 code was not supported.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the chronic neck pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the adjustment disorder with disturbance of emotions and obesity conditions 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 memorandum from the psychiatrist noted his condition of adjustment disorder with disturbance of emotions had improved with counseling and had not interfered with his ability to perform his duty.   The psychiatrist noted a psychiatric addendum to his MEB was not necessary.  The Board noted that at the time of separation the diagnosis of adjustment disorder was not a physical disability and therefore, was not ratable IAW DoDI 1332.38.  The adjustment disorder condition was 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 any mental health condition significantly interfered with satisfactory duty performance.  The Board therefore concluded that there was insufficient evidence that any mental health condition rose to the level of being unfitting at the time of separation and therefore none were subject to service disability rating.  Likewise, the obesity condition 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 any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the contended adjustment disorder with disturbance of emotions and obesity 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Neck Pain 	5299-5237	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140716, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160008658, 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 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,