RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-03866
BRANCH OF SERVICE: AIR FORCE		SEPARATION DATE: 20040205

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Enlisted Recruiter, medically separated for “chronic neck pain secondary to cervical dystonia, traumatic” with a disability rating of 20%.

CI CONTENTION: Not considered for retirement.  Her 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 - 20031014	VARD - 20050125	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain Secondary to Cervical Dystonia, Traumatic	5290-5299	20%	Service Connection for Cervical Dystonia with Cervicothoracic Myofascial Pain Syndrome and C6 Radiculopathy	5238	30%	20040714	
Tobacco Abuse	Cat III	No VA Placement	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Chronic Neck Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI injured her neck in a motor vehicle accident on 7 October 2001.  She was hospitalized for 3 days for “whiplash.”  She was treated by many doctors and given Novocain injections to alleviate her neck pain.  During a neurologist visit on 13 February 2003, 12 months before separation, she reported neck and left shoulder pain with shooting pain that traveled down the radial aspect of her left arm and into her fingers with tingling and numbness in her fingertips.  The physical examination revealed range of motion (ROM) of neck flexion that was locked, causing severe pain when she attempted to straighten it out.  Despite treatment, the neck pain persisted and an MEB was initiated.

The MEB NARSUM dated 30 June 2003, performed 7 months before separation, did not contain a physical examination because the CI was treated by civilian providers and the NARSUM examiner only saw the CI once, one year prior.  The NARSUM examiner opined the CI had been unresponsive to multiple medications, local injections, physical therapy and continued to have debilitating pain that prevented her from doing her job.

During the VA Compensation and Pension (C&P) examination dated 29 June 2004, performed 5 months after separation, the CI separated from service on 5 February 2004.  The CI reported constant neck pain that radiated to both shoulders, along with numbness, tingling, and some weakness which radiated to her left fingertips.  The physical examination revealed a normal gait and heel and toe walk.  Her ROM was held rigid with all measurements at 0 degree except for right lateral flexion which was 30 degrees; she did not move her neck out of the 30 degree right tilt.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 20% analogously coded 5290-5299 (spine, limitation of motion of, cervical) from the 2003 VASRD.  The VA rated the neck condition 30% coded 5238 (spinal stenosis) based on the VA C&P examination 5 months after separation, citing forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.

The Board majority agreed the CI’s cervical spine was locked in one position (ankylosis) during the neurologist and VA C&P examinations.  IAW the VASRD §4.71a, note (5), cervical ankylosis is considered “unfavorable” and a 40% rating is warranted when there is satisfactory evidence of neurologic symptoms due to nerve root stretching.  Both neurologist and VA C&P examinations documented the CI with neurological symptoms of radiating pain, numbness and tingling to the CI’s left finger tips; which the Board agree were symptoms indicative of nerve root stretching.  The Board therefore determined that a 40% disability rating was appropriate in this case.  The Board tried to find a path to a higher rating for the neck pain, but found insufficient evidence to support a rating higher than 40%.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to the upper left extremity radiculopathy.  The Board requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to service disability in spine cases.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The CI complained of radicular tingling, numbness and weakness which was corroborated by an electrodiagnostic nerve study performed on 6 December 2001.  The study showed evidence of left C-6 radiculopathy which was acute and severe in nature.  However, after reviewing all the evidence, the Board found insufficient evidence that the radiculopathy symptoms interfered with the satisfactory performance of the CI’s military duties; and the Board could not support a recommendation for service rating on this basis.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the chronic neck pain condition.

Contended PEB Condition:  Tobacco Abuse.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the chronic neck pain, secondary to cervical dystonia, the Board majority recommends a disability rating of 40%, coded 5299-5237, IAW VASRD §4.71a.  The single voter for dissent recommended a disability rating of 30% and did not elect to submit a minority opinion.  In the matter of the contended tobacco 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 the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic Neck Pain, Secondary to Cervical Dystonia, Traumatic	5299-5237	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140829, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MR
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

Dear 

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2014-03866.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.

Sincerely,

Attachment:
Record of Proceedings 

cc:
SAF/MRBR