RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01800
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060501

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Metal Worker, medically separated for “chronic neck pain and loss of cervical motion secondary to neck injury” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.”  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 - 20060407	VARD - 20070124	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5241	10%	S/P Cervical Fusion with DDD	5241	20%*	20061004	
Hearing Loss and Tinnitus	Not Unfitting	Tinnitus	6260	10%	20061020	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	
* VARD 2 months later dated 20070328 reduced the disability rating to 10%

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent an anterior cervical discectomy and fusion (ACDF) on 10 April 2003.  His symptoms persisted despite surgery and rehabilitation.  A CT scan on 8 February 2005 was suggestive of non-union following the ACDF.  The CI underwent a posterior fusion (surgery) at C6-C7 on 08 Aug 2005.  Following surgery, he was placed in a hard cervical collar and put onto limited duty.  In physical medicine on 11 October 2005, he was noted to have ongoing pain.  The neurological examination was normal.  A 4 November 2005 X-ray showed persistent non-union.  The 4 January 2006 neurosurgery examination noted a normal neurological examination including the gait.  X-rays were read by the radiologist as showing a persistent non-union, but the treating neurosurgeon noted that the cervical fusion was stable.  The CI was unable to return to full duty and was referred for MEB.  

At the 17 January 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation from the Guard, the CI reported nocturnal numbness and tingling of both 4th and 5th fingers.  On examination, the range of motion (ROM) of the neck was reduced.  The neurological examination was normal.  Signs of peripheral nerve (ulnar and median) entrapment were absent.  

At the 18 January 2006 physical therapy ROM study showed forward flexion of 35 degrees (normal 45) after repetition and combined ROM of 155 degrees (normal 340) after repetition.  Motion was limited and painful at the extremes.  Spasm was not recorded.  The 19 January 2006 electrodiagnostic (EDS) testing showed a sign of peripheral nerve irritation that was positive for both ulnar nerves on physical examination.  Mild ulnar neuropathy was present on the EDX studies.  Elbow pads and braces were prescribed with an expectation of resolution.  At the 20 January 2006 MEB NARSUM examination, 4 months prior to separation from the Guard, the CI reported neck stiffness and limitation of motion.  On examination, the neurological evaluation was normal as was the gait.  Signs of non-organic pain were absent (normal).  

At the 4 October 2006 VA Compensation and Pension (C&P) evaluation, 5 months after separation from the Guard, the CI reported ongoing neck pain.  Incapacitation was not present.  On examination, the gait was normal.  ROM measurements showed forward flexion of 45 degrees and combined ROM of 320.  Measurements were pain free and essentially normal other than a slightly limited side bend bilaterally.  The neurological examination was intact.  Spasm, atrophy, guarding, and tenderness were absent.  A CT scan dated 6 October 2006 showed multilevel degenerative disc disease and degenerative joint disease with fusion evident at C6-7.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck pain 10%, coded 5241 (spinal fusion), citing limitation of forward flexion.  The VA proposed reduction to 10% coded 5241 (spinal fusion), based on the C&P examination 5 months after separation, citing “full” ROM with “no loss of additional range of motion or pain on active or passive motion or after repetitive use.”  The CI had originally been rated at 20% for the neck condition based on a previous examination done for the active duty separation dated 26 December 2003.  The combined limitation in motion on the MEB physical therapy examination supports a 20% rating.  A peripheral neuropathy was diagnosed (cubital tunnel syndrome), but a radiculopathy was absent on all examinations proximate to separation from the Guard.  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 neck pain, coded 5241.  

Contended PEB Conditions: Hearing loss and tinnitus. The panel’s main charge is to assess the fairness of the PEB’s determination that conditions were not unfitting.  The hearing loss and tinnitus conditions were profiled, but not implicated in the commander’s statement.  Both were judged to meet retention standards.  Comparison of the hearing levels obtained on the enlistment examination dated 15 August 2002 and the MEB examination dated 17 January 2006 showed minimal change which was within test to test variation (15 dB or less).  There was no performance-based evidence from the record that the hearing loss and tinnitus conditions 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 determinations of the hearing loss and tinnitus conditions and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic neck pain, the panel unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended hearing loss and tinnitus conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  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	
Chronic Neck Pain	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150702, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170009091, 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