RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00152
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071009

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Infantryman, medically separated for “C3-4 bulging broad based disk protrusion C4-5 and broad based left paracentral C5-6,” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions”. The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited 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.  Any conditions outside the Board’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 Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’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 Board 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 Board 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 - 20070803	VARD - 20150504	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical Condition	5243	10%	Cervical Degenerative Disc Disease with Stenosis	5242-5237	20%	20150312	
Joint Pain Shoulder	Not Unfitting	Right Shoulder Arthroscopic Surgery 	5210-5003	10%		
Astigmatism		No VA Placement	
RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

Cervical Disc Herniation.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s cervical condition began in 2002 during combatives training.  Radiographic studies on March 2007 showed degenerative changes at C5-6 and disc bulging at C3-4, C4-5 and C5-6.  

The 16 July 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant pain that often kept the CI awake at night.  The CI could not wear field gear due to symptom exacerbation.  Physical examination showed the CI could forward flex to 40 degrees (normal 45) and had a combined range of motion equaling 195 degrees (normal 340).  
Of note, the examiner measured flexion using an inclinometer rather than the goniometric thoracolumbar ROM specified by the VASRD (§4.71a, Plate V).  The CI exhibited signs of painful motion and tenderness to palpation, but walked with a normal gait.  There was no guarding or spasm noted and he had normal strength and sensory functioning.  The March 2007 neuroimaging showed slight straightening, reversal of the normal cervical lordosis, possible due to muscle spasm.  The VA Compensation and Pension (C&P) examination in record was performed 8 years post separation and beyond the panel’s probative range. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the cervical condition 10% under the 5243 code (intervertebral disc syndrome), citing limitation of motion.  The VA assigned a 20% rating using a 5242-5237 code (degenerative arthritis of the spine, cervical spine strain) citing limitation of forward flexion.  The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 40 degrees) and/or combined ROM (greater than 170 degrees but not greater than 335 degrees) reported on the NARSUM examinations.  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.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula, or evidence of ratable peripheral nerve impairment which would provide for additional 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 cervical condition.  

Contended PEB Conditions:  Joint Pain Shoulder and Astigmatism.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the 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 determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  

In the matter of the cervical condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended joint pain shoulder and astigmatism 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, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160323, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014079, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
						      					
Enclosure