RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00478
BRANCH OF SERVICE:  army	SEPARATION DATE:  20040311

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E7, Intelligence Analyst, medically separated for “neck pain…” and “chronic right ankle pain,” rated 10% and 0%, respectively, with a combined  disability rating of 10%.   

CI CONTENTION:  The CI requests that all conditions be considered.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20031118	VARD - 20041029	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck Pain…	5237	10%	DDD, Cervical Spine	5243	20%	20040806	
Chronic Right Ankle Pain…	5010	0%	Residuals…Right Ankle…Repair	5299-5271	0%		
Anxiety D/O…	Not Unfitting	Anxiety Disorder	9499-9440	NSC	20040823	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Neck Pain with Degenerative Disc Disease (DDD) and C3-4 Herniated Nucleolus Pulposus.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began in 1999 with no specific injury or trauma identified.  Radiographic imaging in August 2001 and November 2002 documented multilevel DDD with no evidence of radiating effects.  

Primary care clinic notes between 2001 and 2002 noted ongoing neck pain that worsened with prolonged computer activities, and also radiated down the right arm.  Electro-diagnostic testing in November 2002 documented a right cervical radiculopathy with no significant motor abnormalities.  At the 27 May 2003 MEB NARSUM, 14 months prior to separation, the CI reported neck pain that radiated down the right arm with tingling in the C8 nerve distribution.  Physical examination showed no evidence of tenderness or crepitus, and normal muscle tone and neurologic examination.  Range of motion (ROM) measurements documented normal flexion (45 degrees) with pain, and extension to 30 degrees (normal 45).  

At the 6 August 2004 VA Compensation and Pension (C&P) evaluation, 5 months after separation, the CI reported constant neck soreness, difficulty looking down, numbness of the right forearm and little finger, but he denied hand weakness.  Physical examination showed flexion at 30 degrees and combined ROM of 260 degrees (normal 340).  There was no tenderness or muscle spasm.  Radiographic studies (X-ray) showed normal intervertebral disc spaces and vertebral body heights.  Flexion-extension views demonstrated mild limitation in extension and no evidence of instability.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated 10% for the neck condition, coded 5237 (cervical strain), citing no neurological deficits and a ROM that was “within acceptable parameters.”  The VA rated 20% for the neck condition, coded 5243 (intervertebral disc syndrome), based on the C&P examination 5 months after separation, citing a mild to moderate restriction of normal ROM and mild tenderness over the right trapezius.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees) as reported on the VA examination, which was most proximate to separation.  There was no documentation of incapacitating episodes which might offer a higher rating under that formula.  

Chronic Right Ankle Pain.  According to the NARSUM, in October 2000 the CI had surgery performed on his left ankle (synovectomy and ATFL reconstruction).  At the 27 May 2003 MEB NARSUM examination, 15 months prior to separation, the CI reported pain that limited running and walking.  On physical examination, dorsiflexion was measured at 10 degrees (normal 20) and plantar flexion at 45 degrees (normal 45) with no evidence of instability (negative drawer and talar tilt testing).  Pain was noted with forced dorsiflexion.  At the 6 August 2004 VA C&P examination, 5 months after separation, the CI reported periodic soreness with activity and occasional swelling.  The physical examination showed full ROM of the ankle and foot with no evidence of pain.  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated 0% for the right ankle condition, coded 5010 (traumatic arthritis), citing no evidence of ligamentous laxity or instability.  The VA also rated 0% for the right ankle condition, coded 5299-5271 (ankle, limited motion of), citing no restriction of motion.  At the time of the MEB and VA C&P examinations, the ROM was normal, and therefore did not support the minimum 10% rating under VASRD diagnostic code 5271 (ankle limitation of motion) for ‘moderate’ limitation of motion.  There was no evidence of painful motion causing functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  The panel considered alternative VASRD ankle and analogous codes, but none would warrant a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right ankle condition.  

Contended PEB Condition:  Anxiety Disorder Not Otherwise Specified.  The panel’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, 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 panel 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 neck condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the right ankle condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  
In the matter of the contended anxiety disorder condition, the panel unanimously agrees that it cannot recommend it for additional disability rating.  There were no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
DDD, Cervical Spine	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150601, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170005972, XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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