RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00967
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20040409

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Bridge Crewmember, medically separated for “neck pain with previous injury and C5 and C6 herniated nucleus pulposus” with a disability rating of 20%.  

CI CONTENTION:  Given a higher rating by the VA.  The 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 - 20040323	VARD - 20050106	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck Pain with Previous Injury and C5 and C6 Herniated Nucleus Pulposus	5243	20%	Residuals, Status Post Cervical Fusion	5241	20%	20041022	
			Residuals, Scar, Cervical Spine	7804	10%	20041022	
			Peripheral Neuropathy, Right Upper Extremity	8516	10%	20041022	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY: 

Neck Pain.  According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s condition began in 1999 when he performed a maneuver going from running to the prone position.  An MRI demonstrated C5 and C6 herniated discs.  His condition improved with treatment.  In April 2003 when lifting a bridge panel, he felt a “wet pop” in his neck with subsequent “extreme neck/right shoulder/right arm pain.” On 25 April 2003 the CI reported persistent neck pain with recent development of right upper arm (lateral) pain and right lower arm numbness and tingling extending to the right thumb, second finger, and third finger.  An MRI on 5 May 2003 revealed a C5-C6 herniated nucleus pulposus with compression of nerve roots on the right.  The CI underwent C5-C6 and C6-C7 level anterior cervical discectomies and fusion with instrumentation on 23 May 2003.  Despite postoperative physical therapy, chronic pain persisted.  

On 5 September 2003, cervical flexion was 45 degrees.  An MRI dated 22 January 2004 demonstrated status post prior anterior fusion with bone plugs, metallic plate and screws at C5-C7 with adequate alignment.  There was a small posterocentral disc protrusion without cord compression causing significant spinal canal stenosis at C4-5.  There was also bilateral neural foraminal narrowing at C5-6, moderate on the right and mild on the left.  At a neurosurgical visit on 28 July 2003 the CI reported he was doing well; X-rays of the cervical spine demonstrated good postoperative alignment; and there was resolution of most of the radiculopathy, which then resolved within a month.  At a neurosurgical examination dated 28 January 2004 the CI noted he was markedly better than he was prior to surgery; however, he had persistent neck pain, stiffness and right arm numbness and tingling.  He did still have a small amount of disk at the right C5-6 foramen.  A therapeutic nerve root block on the right C6 nerve was mentioned as an option.  If that did not work, a C5-6 foraminotomy was a last choice.    

During the February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 weeks prior to separation, the CI reported his right arm “hurts bad.”  Physical examination noted the fusion surgery in 2003 and decreased cervical range of motion (ROM).  The 19 February 2004 MEB NARSUM examination, also 7 weeks prior to separation, noted complaints of persistent neck pain, stiffness, and right arm tingling and numbness.  Physical examination showed the neck had fused well post surgery with some resolution of symptoms.  The back of the neck and tops of the shoulders were tender bilaterally.  Neurological examination noted 2/4 deep tendon reflexes that were equal and bilateral in the upper and lower extremities with 4/5 muscle strength in the right upper extremity.  The NARSUM referred to ROM measurements in degrees performed on 6 February 2004 in the physical therapy clinic using a goniometer and an inclinometer.  Flexion was 23 (normal 45), extension 22 (normal 45), left and right rotation were each 44 (normal 80), left lateral flexion 24 (normal 45), and right lateral flexion 26 for a combined ROM of 185 degrees (normal 340).  Pain on movement was not specifically noted.  Gait was normal.  At a clinic visit on 19 May 2004 the CI reported his right shoulder ROM was much improved; however, he experienced chronic pain and limitation with numbness in the thumb, index finger, and lower forearm.  Electrodiagnostic studies on 10 June 2004 were indicative of right C6 and C7 radiculopathy.    

At the 22 October 2004 VA Compensation and Pension (C&P) evaluation, 7 months after separation, the CI reported he had right-sided pain in the neck and arm with numbness to the arm, index and middle fingers.  The CI also reported frequently dropping things from his dominant right hand.  Pain was reported as “constant and achy” at a 6-7/10 in the neck and 6 /10 in the right arm.  Physical examination revealed the CI held his neck tilted to the left and it was tender but with no laxity, deformity or crepitus.  The surgical scar was noted as painful, but superficial, and did not interfere with neck function.  The examiner noted the CI’s neck pain was constant without flare-ups.  ROM measurements were recorded in degrees as flexion 15, extension 10, left rotation 40, right rotation 25, left lateral flexion 20, and right lateral flexion 15, for a combined ROM of 125.  Movement on all planes was noted as painful and with fatigue and weakness.  The right upper extremity was weaker than the left.  He had decreased pain and light touch in the lateral right arm, forearm, thumb, index finger, and middle finger.  He was unable to touch his thumb to the palm by 2 cm.  Posture and gait were normal.

An MRI dated 6 May 2005, 13 months after separation, demonstrated postsurgical changes compatible with an anterior fixation of C5-C7 vertebrae with no definite evidence of recurrent disc protrusion or significant postsurgical scarring or spinal canal stenosis and the cervical cord appeared normal.  At a 28 October 2005 VA spine examination, 18 months after separation, flexion was 0-20 degrees and the combined ROM was 125 degrees; and with active motion against strong resistance flexion was 15 degrees and the combined ROM was 120 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 20%, coded 5243 (intervertebral disc syndrome [IVDS]), citing passive range of motion of 28 degrees flexion and 235 degrees combined.  The VA also rated the neck condition 20%, coded 5241, (spinal fusion), based on the C&P examination 7 months after separation, citing painful limitation of motion.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees) and combined ROM (not greater than 170 degrees) as reported on the MEB and NARSUM examinations.  There was no documentation of IVDS 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 neck pain condition, coded 5243.  

The panel noted the PEB rendered a de facto “not unfitting” determination by not explicitly addressing the MEB’s submission of radiculopathy.  The panel next considered whether an additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had herniated discs with radicular pain treated with surgery. Documented in the treatment records were symptoms of radiating pain, sensory loss and weakness of the right arm, and right third to fifth fingers, which interfered with performance of duty separately from the neck pain.  The panel concluded there was a preponderance of evidence which indicated the cervical radiculopathy was separately unfitting for performance of duties.  The panel considered the impairments documented in the treatment records and agreed that a 10% rating most nearly approximated the (mild) impairment due to radiculopathy, coded 8516 (ulnar nerve, paralysis).  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 radiculopathy condition, coded 8516. 

BOARD FINDINGS:  In the matter of the neck pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the cervical radiculopathy condition, the panel unanimously recommends a disability rating of 10%, coded 8516 IAW VASRD §4.124a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows; and, the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Neck Pain	5243	20%	
Cervical Radiculopathy 	8516	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160919, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170018905, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure