RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03491
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20080929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-1, Indirect Fire Infantry, medically separated for “cervical spine disease,” with a disability rating of 10%.  

CI CONTENTION:  The CI contends “many health conditions” which led to hardships and he received 100% disability by the Social Security Administration.  The applicant’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 based upon a 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 –20080829	VARD - 20091002	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical Spine Disease	5299-5242	10%	Degenerative Disc Disease Cervical Spine	5242	20%	20090427	
Hepatitis C	Not Unfitting 	Hepatitis C	7354	Deferred		
Compression Fractures of the Thoracic Spine	Not Unfitting	No VA Placement	
Degenerative Disk Disease of the Lumbar Spine	Not Unfitting	Mild Degenerative Disc Disease Lumbosacral Spine	5242	10%	20090427	
Hemochromatosis	Not Unfitting	No VA Placement	
Depression	Not Unfitting	Bipolar Disorder Not Otherwise Specified, Most Recent Episode of Depression 	9432	NSC	20090413	
Opioid Addiction	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Cervical Spine Disease.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s cervical spine disease condition began in June 2007 while training on an incline surface with his ruck-sack.  The CI had neck pain with complaints of bilateral arm pain and weakness.  Electrodiagnostic studies, 16 January 2008, were negative for radiculopathy.  Diagnostic imagining showed degenerative joint disease (DJD) small disk protrusion and osteophyte with mild neural outlet narrowing without cord impingement.  There was no surgical indication.  

Despite treatment, including facet injections and epidural steroid injections, the cervical spine condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “cervical spine disease” for PEB adjudication.  

The range of motion (ROM) examinations 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 ~1 Mo. Pre-Sep	VA C&P ~7 Mo. Post-Sep	
Flex (45 Normal)	45	20	
Combined (340)	305	180	
Comment	Tenderness; repetitive activity decreased lateral motion by 10%	Painful motion; tenderness; spasm	
§4.71a Rating	10%	20%	

The MEB NARSUM examination on 19 August 2008, 1 month prior to separation, noted complaints of continuous pain although having benefited to some degree from having injection therapy.  The CI had reported continued radicular symptoms of numbness and tingling down his arms on the DD Form 2807 (Report of Medical History).  The NARSUM physical examination showed limited ROMs as summarized above.  

At the 27 April 2009 VA Compensation and Pension (C&P) evaluation, performed 7 months after separation, the CI reported neck pain and tingling in the fingertips of the bilateral upper extremities.  The frequency was constant with a waxing and waning nature.  The severity was 7/10 on average and 10/10 when it was severe.  The relieving factors were methadone treatment which made his symptoms tolerable.  He had flare-ups every couple of months where his pain was a 10/10 for 2-3 days.  He was not absent from his civilian employment.  He did not use any supportive or assistive devices.  He did stop his physical activities such as sports and some limited yard work.  Physical examination showed a normal gait and is summarized above.  Neurologic examination was normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the cervical spine disease condition 10% under an analogous 5299-5242 code (degenerative arthritis of the spine), citing functional impairment, functional loss and painful motion IAW VASRD criteria.  The VA assigned a 20% rating using the 5242 code (degenerative arthritis of the spine) for limitation of forward flexion based on the examination 7 months after separation.  

The limitation of cervical motion at the MEB examination supported the 10% rating adjudicated by the PEB.  The Board discussed the worsened limitation of motion at the VA C&P examination 7 months after separation; however this examination was less proximate to separation and the Board placed greater probative value on the MEB examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  

The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome (IVDS).  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The Board therefore concluded that an additional disability rating was not justified on this basis.  

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 adjudication for the cervical spine disease condition.  

Contended PEB Conditions:  Hepatitis C, compression fractures of the thoracic spine, degenerative disk disease (DDD) of the lumbar spine, hemochromatosis, and depression. 

The hepatitis C condition was profiled and was judged to fail retention standards; however, it was not implicated in the commander’s statement.  Although the commander stated “same limitations as his profile,” he specifically noted only the cervical spine condition as a factor limiting the CI’s ability to perform his job.  As such, there was no performance-based evidence from the record that the hepatitis C condition significantly interfered with satisfactory duty performance at separation.  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 the hepatitis C condition and so no additional disability rating is recommended.  

The compression fractures of the thoracic spine, DDD of the lumbar spine, hemochromatosis, and depression conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  There was no performance-based evidence from the record that the conditions significantly interfered with satisfactory duty performance at separation.  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 the compression fractures of the thoracic spine, DDD of the lumbar spine, hemochromatosis and depression conditions and so no additional disability ratings are recommended.  

The opioid addiction is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the Board has no basis for recommending it as unfitting.  

BOARD FINDINGS:  In the matter of the cervical spine disease condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended hepatitis C, compression fractures of the thoracic spine, DDD of the lumbar spine, hemochromatosis and depression conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended opioid addiction condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 20140604, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXX AR20160014206  (PD201403491)

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