RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03970
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20020830

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Calvary Scout, medically separated for “cervical restricted range of motion (ROM) with myelopathy,” with a disability rating of 20%.  

CI CONTENTION:  The applicant’s condition continues to worsen and negatively impact his daily activities.  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 - 20020724	VARD - 20030125	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical Restricted Range of Motion with Myelopathy	5290	20%	Cervical Spine with Myelopathy …	5290	30%	20021121	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Cervical…with Myelopathy.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s cervical spine condition began on 4 June 2001 after a hard parachute landing.  X-rays of the cervical spine were negative for acute injury, but did reveal degenerative changes of the lower cervical spine.  Pursuant to persistent and worsening numbness and weakness in both upper and lower extremities (right greater than left), the CI underwent a cervical fusion on 2 October 2001.  At a 5-month post-operative orthopedic follow-up, the CI’s symptoms greatly improved with only “mild residual right hand weakness and mild ulnar side (little finger side) decreased sensation.  Electro-diagnostic studies performed on 19 June 2002 (9 months after surgery and 2 months prior to separation), revealed suggestive findings corresponding to right upper extremity weakness.  Further, non-surgical treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “cervical myelopathy, status post cervical injury” and “status post C-6 corpectomy, allograft, structural graft, anterior cervical plating” for PEB adjudication.  The MEB NARSUM examination on 9 May 2002 (4 months prior to separation) noted the CI’s pain assessed as “constant, moderate, and interferes with sleep”.  His physical examination (PE) revealed severely decreased and painful cervical ROM as well as right upper extremity weakness and altered hand sensation.  At the VA Compensation and Pension (C&P) examination on 21 November 2002 (performed 3 months after separation) the CI reported to have “diminished strength and sensation primarily through the ulnar aspect of the [right] forearm and hand.”  His PE noted improved, but persistent decreased cervical ROM.  There was no comment with regards to painful motion.  His neurological status with regard to altered sensation and weakness was unchanged from prior exams.  The 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 ~4 Mo. Pre-Sep
(20020509) 	VA C&P ~3 Mo. Post-Sep
(20021121) 	
Flex (45 Normal)	15	30	
Extension (45)	5	15	
R Lat Flexion (45)	0	-	
L Lat Flexion (45)	10	-	
R Rotation (80)	0	30	
L Rotation (80)	10	40	
Combined (340)	40		
Comment	RUE weakness; decreased (hand) sensation; 	RUE weakness; decreased (hand) sensation;	
§4.71a Rating	30%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA coded the cervical spine condition under the appropriate VASRD old spine guidelines at 20% and 30%, respectively.  Board members first agreed that in the absence of vertebral fracture, cervical ankylosis, or severe peripheral neurologic impairment, the 5290 code (Spine; limitation of cervical motion) was most appropriate in this case.  Members then turned their attention to examination probative value acknowledging that both pre- and post-separation examinations were near equal in time reference to separation.  After extensive deliberation, all members agreed that the MEB examination was most detailed and comprehensive in stating ROM measurements and therefore, a greater degree of probative value be assigned to that examination.  There are three criterion levels within VASRD code 5290; slight at 10%, moderate at 20%, and severe at 30%.  All members agreed that a 66% drop in cervical flexion and a near 90% drop in combined cervical motion would clearly support a “severe” level of impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the cervical spine condition.

BOARD FINDINGS:  In the matter of the cervical spine condition, the Board unanimously recommends a disability rating of 30%, coded 5290 IAW 2002 VASRD Guidelines.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Cervical Restricted Range of Motion with Myelopathy 	5290	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140814, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160017908 (PD201403970)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA