RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-04257
BRANCH OF SERVICE:  Army  		SEPARATION DATE:  20060930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Military Police, medically separated for “chronic necks pain” and “(mood disorder) adjustment disorder” with a combined disability rating of 0%.

CI CONTENTION:  The CI requests consideration of all conditions.  His complete submission is at attachment 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 - 20060821	VARD - 20070726	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5299-5242	0%	Cervical Spine DDD	5242	0%	20060605	
Mood Disorder (Adjustment Disorder with Depressed Mood)	Does not constitute a physical disability	PTSD	9411	30%	20070628	
Insomnia	Not Unfitting					
Right Shoulder Pain	Not Unfitting	Right Shoulder	5299-5203	NSC	20060605	
Headaches	Not Unfitting	Headaches	8199-8100	0%	20070625	
Impotence	Not Unfitting	Erectile Dysfunction	7599-7522	0%	20060605	
Hypertension	Not Unfitting	Hypertension	7101	0%	20060605	
Low Back Pain	Not Unfitting	Lumbar Spine	5299-5237	NSC	20060605	
Tinnitus	Not Unfitting	Tinnitus	6260	10%	20060605	
COMBINED RATING:  0%	COMBINED RATING FOR ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Chronic Neck Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) the CI’s neck back pain began after a motor vehicle accident in October 2004.  He was not hospitalized and did not receive surgery.  He received conservative treatment and was seen by orthopedics, neurology, physical therapy (PT) and the pain clinic for neck pain with intermittent pain, numbness or weakness to his right arm.  Radiographic imaging, EMG/NCV and CT scan, were negative.  Despite receiving treatment his neck pain could not be rehabilitated to meet the physical requirements of his military occupational specialty (MOS).  He was given a temporary U3 profile and referred to the MEB.  The MEB forwarded “intervertebral disk degenerative of the cervical spine” to the physical evaluation board (PEB) for adjudication.  At two PT visits 7 months before separation, the CI reported neck pain with headaches and low back pain.  The examination revealed cervical paraspinal tenderness, with 5/5 upper extremity strength and grip.  The cervical range of motion (ROM) was flexion to 60 degrees (45 normal) and a combined 235 to 260 degrees (340 normal).  

During the MEB NARSUM examination in May 2006, 5 months before separation, the CI reported neck pain with intermittent numbness and tingling to his right arm.  The physical examination revealed a normal gait and posture, 5/5 motor strength, and cervical spine tenderness.  Muscle spasm was not cited.  The ROM was flexion to 60 degrees and a combined ROM of 235 degrees.  At a VA Compensation and Pension (C&P) examination in June 2006, 4 months before separation, the CI reported neck pain and decreased ROM.  The physical examination revealed a normal gait and stance and 5/5 upper extremity strength.  There was no cervical spine tenderness.  Muscle spasm was not cited.  The ROM was “full” without painful motion, weakness or fatigue.  During a PT visit in July 2006, 3 months before separation, the CI reported neck pain with headaches and numbness at right arm and hand.  The physical examination revealed cervical spine tenderness, and decreased sensation to touch.  There was 5/5 upper extremity strength and grip.  There was cervical flexion to 50 degrees and a combined ROM of 245 degrees with painful motion.  At a VA C&P examination in February 2007, 5 months after separation, the CI reported upper back pain, frequent headaches, and numbness and tingling in all extremities.  There was no cervical spinous or paraspinous tenderness to palpation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under analogous code 5299-5242 (degenerative arthritis of the spine), with likely application of Army Regulation 635-40.  The VA assigned a 0% rating also using code 5242 based on the VA C&P examination 4 months after separation, citing X-ray evidence of degenerative joint disease and normal ROM.  The Board agreed that a 10% rating, but no higher, was justified for combined ROM (greater than 170 degrees but not greater than 335 degrees) reported on the MEB and PT examinations proximate to separation.  Additionally, there was no muscle spasm or guarding to cause an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  The Board majority considered the totality of the evidence and concluded that a 10% rating was supported.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 10% for the low back condition, coded 5299-5242.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that adjustment disorder with depressed mood was not compensable, but could be administratively unfitting.  The adjustment disorder with depressed mood is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the Board has no basis for recommending it as unfitting.  Additionally, the Board must also assess the fairness of the PEB’s determination that right shoulder pain, headaches, insomnia, impotence, hypertension, low back pain, and tinnitus were not unfitting.  The contended conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation, 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 10%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the contended adjustment disorder with depressed mood condition, the Board unanimously agreed that it cannot recommend it for additional disability rating.  In the matter of the contended right shoulder pain, headaches, insomnia, impotence, hypertension, low back pain, and tinnitus 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	5299-5242	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140710, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160011492, 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,

 

Enclosure
 
XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army