RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02170
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20050930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty O3, Command and Control System Officer, medically separated for “spinal spondyloarthropathy” with a disability rating of 10%.

CI CONTENTION:  The CI contends that he was given a higher rating by the VA.  The CI’s 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 - 20050615	VARD - 20060126	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Spondyloarthropathy	5299-5237	10%	Myofascial Pain Syndrome	5099-5025	40%	20050913	
			Right Arm Radiculopathy	8510	20%	20050913	
			Degenerative Disc Disease of the Cervical Spine with Multilevel Spondylosis and Multilevel Neural Foraminal Stenosis	5299-5238	10%	20050913	
Degenerative Disc Disease	Cat II	Lumbar Strain with Thoracic Spine Herniated Disc	5237	0%	20050913	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Cervical Spinal Spondyloarthropathy.  The PEB combined the cervical and thoracic conditions as a single unfitting condition coded analogously to 5237 (lumbosacral or cervical strain) and rated 10%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the cervical and thoracic conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began in 1996 without any specific injury or trauma.  Electrodiagnostic studies obtained on 9 July 2004 were within normal limits.  At the Physical Medicine & Pain Management clinic appointment on 23 September 2004, 12 months prior to separation, the CI reported axial neck pain and stiffness, and after running he felt occasional tingling down his arm.  The examiner referenced that the prior electrodiagnostic studies which were within normal limits.  Physical examination showed normal range of motion (ROM) and his neurological examination was normal.  Magnetic resonance imaging (MRI) studies in January 2005 showed a broad-based disc bulge, eccentric to right with moderate foraminal cervical stenosis at C3-4, C4-5, and C6-7.  Neurosurgical evaluation did not recommend surgery. 

During the 12 January 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, the CI reported a painful/grinding neck.  Physical examination and an MRI in October 2002 showed an intervertebral disk herniation at L4-5 and that the CI had had three series of neck facet injections with no relief of pain.  The 8 March 2005 MEB NARSUM examination, 7 months prior to separation, noted complaints of neck pain with numbness in right arm.  Physical examination showed crepitus and moderate limitation of extension during ROM measurements otherwise there was full ROM.  Electrodiagnostic studies performed on 26 May 2005, 4 months prior to separation, demonstrated evidence of a mild C6 radiculopathy on the right.  There was no evidence of reinnervation.  Final diagnosis was given of spinal spondyloarthropathy; cervical, thoracic, and lumbar.  

At the 13 September 2005 VA Compensation and Pension (C&P) neurological examination, performed 1 month before separation, the CI reported nearly constant pain and paresthesias in the right arm.  Physical examination showed normal motor strength, normal tone and bulk, normal reflexes, and intact sensation.  ROM measured a flexion of 45 degrees (normal) and a combined ROM of 300 degrees (340 normal).  The examiner gave a diagnosis of chronic neck pain secondary to multilevel cervical spondylosis and multilevel neural foraminal stenosis.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the spinal spondyloarthropathy condition 10% under the analogous code 5237 (cervical spine strain).  The VA rated the cervical spine condition a 10% rating using the analogous code 5238 (spinal stenosis), citing combined ROM limited to 300 degrees.  The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 170 degrees but not greater than 335 degrees) reported on the C&P examination proximate to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% 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 10% for the cervical spine condition, coded 5237.  

Thoracic and Lumbar Spinal Spondyloarthropathy.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 1998 after heavy lifting.  Magnetic resonance imaging (MRI) studies of the thoracic spine on 25 February 2005 showed moderately prominent left anterolateral defect T3-4 and a lesser defect right side anterolateral T5-6 with likely some spurring.  MRI studies of the lumbar spine showed some disc desiccation with mild narrowing of the L4-5 interspace and some minor disc bulge without definite HNP and some desiccation at L5-S1.  The MEB NARSUM examination on 8 March 2005, 6 months prior to separation, noted complaints of a 7-year history of lower back pain.  Physical examination showed ROM measurements of normal flexion at 90 degrees, extension of 10 degrees (30 normal) with a combined ROM of 220 degrees (240 normal).  There was normal strength and normal reflexes.  

At the 13 September 2005 C&P evaluation physical examination showed a normal gait, normal strength, normal reflexes and no percussion tenderness over the spine.  The examiner recorded a full ROM without increased pain.  Repetitive movements did not significantly increase pain and did not cause weakness or sensory loss or incoordination.  

The panel directed its attention to a rating recommendation based on the above evidence.  The PEB rated the spinal spondyloarthropathy condition 10% under the analogous code 5237 (cervical spine strain).  The VA rated the lumbar strain with thoracic spine herniated disc condition 0% coded 5237 (lumbosacral strain), based on the C&P examination citing no evidence of limitation of motion.  The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the MEB NARSUM examination proximate to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% 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 10% for the back condition, coded 5237.  

Contended PEB Condition:  Degenerative Disc Disease.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  There was no evidence of incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months to separately rate for intervertebral disc syndrome (5243).  The panel therefore concluded that the impairment from the degenerative disc disease was subsumed under the overall rating for the “spinal spondyloarthropathy” (cervical and thoracolumbar spine conditions) in accordance with §4.14 avoidance of pyramiding; more than one rating based on the same impairment is prohibited 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 cervical spine condition, the panel unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the thoracolumbar spine condition, the panel unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended degenerative disc disease condition, the panel unanimously recommends no change from the PEB determination as not separately unfitting.  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	
Cervical Strain	5237	10%	
Lumbosacral Strain	5237	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150807, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 26 Jun 17 XXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 26 Jun 17 XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 20 Jun 17 XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 25 Nov 16 XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Jun 17 XXXXXXXXXXXXXXXXXX
   (g) PDBR ltr dtd 20 Jun 17 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 USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.     

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

     d. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Temporary Disability Retired List for six months beginning date of discharge with a 50 percent combined disability rating and a final rating thereafter of 20 percent.  

     e. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.   
     
3.  Please take action to implement these decisions.

	XXXXXXXXXXXXXXXXXX

	Acting,