RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02090
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E1, Combat Engineer, medically separated for “cervical fusion C5·6” with a disability rating of 10%.

CI CONTENTION:  The CI requests the Board consider 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 panel 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 determinations 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 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 - 20071129	VARD - 20080305	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical Fusion C5·6	5241	10%	Status Post Cervical Spine Herniated Nucleus Pulposus	5243	20%	20071205	
Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%		
Adjustment Disorder with Mixed Emotional Features	Not Unfitting	No VA Placement		
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Cervical Fusion C5-6.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s cervical condition began during a previous enlistment in February 1999 from a parachute jump accident.  Magnetic Resonance Imaging (MRI) studies of the cervical spine revealed herniated disks at C3-C4 and C5-C6.  On 12 June 2007 the CI underwent surgery for anterior cervical disk fusion at C5-C6.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The 29 October 2007 MEB NARSUM examination, 2 months prior to separation, the examiner noted that the CI was not able to run or wear his body armor or helmet.  Physical examination showed a cervical spine range of motion (ROM) extension of 40 degrees (45 normal), lateral flexion to the left and right was abnormal, and flexion and rotation were normal.  Sensation examination showed no decreased response to tactile stimulation of the bilateral upper and lower extremities.  Motor strength was normal 5/5 bilaterally at Deltoids, Biceps, Wrist extensors, Triceps, Flexors, and Interosseous.  Deep tendon reflexes were normal 2+ and symmetric throughout.  At the 30 October 2007 physical therapy examination, 2 months prior to separation, the CI reported no specific complaints.  Physical examination of the cervical spine showed a forward flexion ROM of 30 degrees (45 normal), extension of 25 degrees (45 normal), left lateral flexion of 25 degrees (45 normal), right lateral flexion of 15 (45 normal), left lateral rotation of 20 degrees (80 normal), and right lateral rotation of 25 degrees (80 normal).  There was localized tenderness and guarding noted.  No abnormal gait or muscle spasm.  The examiner noted that all ROMs were limited by pain except the right lateral rotation.  

At the 5 December 2007 VA Compensation and Pension (C&P) evaluation, performed 2 weeks before separation, the CI reported decreased neck ROM and 8/10 neck pain 3 times a week lasting 1-2  hours.  Physical examination showed a forward flexion ROM of 30 degrees, extension of 25 degrees, left lateral flexion of 25 degrees, right lateral flexion of 15, left lateral rotation of 20 degrees, and right lateral rotation of 25 degrees.  The examiner also noted localized tenderness, muscle spasm, and guarding.  He also noted that although there was limited range of motion, no additional limitations from pain, fatigue, weakness or lack of endurance following repetitive use were noted.  No abnormal gait.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the cervical condition 10%, coded 5241 (Spinal fusion), citing painful limitation of motion.  The VA rated the cervical condition 20% coded 5243 (Intervertebral disc syndrome), based on the VA C&P examination 2 weeks before separation, citing “evidence of flexion limited to 30 degrees.”  The  panel agreed that a 20% rating, but no higher, was justified for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees reported on both the PT and C&P examinations proximate to separation.  There was no forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine, thus the next higher 30% rating was not justified on this basis.  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 cervical fusion condition, coded 5241.  

Contended PEB Condition: Adjustment Disorder.  The contended adjustment disorder condition is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the Board has no basis for recommending it as unfitting.  After due deliberation, and in consideration of the preponderance of the evidence, the Board 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.
 
Contended PEB Condition: Sleep Apnea.  Additionally, the panel is charged to assess the fairness of the PEB’s determination that sleep apnea was not unfitting.  The sleep apnea was profiled, but not implicated in the commander’s statement, and not 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 sleep apnea and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the cervical condition, the panel unanimously recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended sleep apnea and adjustment disorder 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	
Cervical Fusion C5·6	5241	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150728, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170011080, 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