RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01625
BRANCH OF SERVICE:  mARINE CORPS	SEPARATION DATE:  20090629

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Tactical Network Specialist, medically separated for “cervicalgia” with a disability rating of 10%.

CI CONTENTION:  Evidence supports a higher rating and additional unfitting conditions were not 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 - 20090316	VARD - 20090916	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervicalgia	5237	10%	Myofascial Pain Cervical Spine…	5237	20%	20090609	
Cephalgia	Cat II	No VA rating	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Cervicalgia.  According to the service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s cervicalgia (neck pain) condition was initially treated in approximately May 2006 and was exacerbated by a motor vehicle accident in October 2006.  An MRI in July 2007 showed no herniation or other structural abnormality.  

The 3 October 2008 MEB NARSUM examination, 9 months prior to separation, noted CI complaints of constant upper back and neck pain which radiated to the shoulders.  Physical examination found a normal cervical contour, positive tenderness, normal motor strength, and no sensory deficits.  Cervical spine range of motion (ROM) was “limited by muscle tightness and mild muscle spasm.” Painful motion was not addressed.  

The 8 January 2009 neurosurgery evaluation, 6 months before separation, showed motor strength at 4+/5 throughout.  Flexion was “10 to 15” and combined ROM was approximately 80 degrees; painful motion was present.  During the 9 March 2009 physical therapy (PT) evaluation, 4 months prior to separation, physical examination showed painful motion with flexion to 15 degrees (normal 45) and a combined ROM of 175 degrees (normal 340)

The 9 June 2009 VA Compensation and Pension (C&P) general evaluation, less than 1 month prior to separation, documented complaints of daily neck stiffness without radicular pain which was aggravated by prolonged sitting.  The CI reported effective pain management with morphine use twice daily.  Physical examination showed a mild antalgic gait when initially rising, but otherwise steady.  There was no cervical spine tenderness or muscle spasm.  Repetitive ROM was flexion to 20 degrees with a combined ROM of 120 degrees; painful motion was present.  ROM was not reduced by repetitive motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the cervicalgia condition 10%, coded 5237 (cervical strain).  The VA rated the cervical spine condition 20%, also coded 5237, based on the VA examination less than 1 month before separation, citing muscle spasm which resulted in an abnormal cervical spine contour.  The panel noted that the limitation of cervical flexion recorded in the neurosurgery and PT evaluations, 6 and 4 months before separation, met the threshold for a 30% rating.  However, the VA evaluation less than 1 month before separation was more detailed and reported ROM performed after repetitive motion.  Therefore the panel majority placed greater probative value on this examination and agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees).  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the cervicalgia condition, coded 5237.  

Contended PEB Condition:  Cephalgia (Headache).  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended Category II condition (related to the unfitting condition) was not separately unfitting.  The contended condition was not profiled, implicated in the commander’s statement nor 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’s Category II determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the cervicalgia condition, the panel majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent recommends modification to a 30% and re-characterization, and elected not to submit a minority opinion.  In the matter of the contended cephalgia condition, the panel unanimously recommends no change from the PEB determination as Category II.  

There are 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	
Cervicalgia	5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150624, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 01 Mar 18 ICO XXXXXXXXXXXXXXXXXX 
	(c) PDBR ltr dtd 20 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 27 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 13 Feb 18 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 02 Oct 17 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (f) are approved.  The official records of the following individuals are to be corrected as follows:

     a. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge. 

     b. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Temporary Disability Retired List at time of discharge for six months with a disability rating of 50 percent followed by transfer to the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent).

     c. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 50 percent rating (increased from 0 percent) effective date of discharge. 

     d. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.      

     e. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.   
     
2.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.

                                 	XXXXXXXXXXXXXXXXXX
                                  	Acting