RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01036
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041019

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Cavalry Scout, medically separated for “chronic neck pain” with a disability rating of 10%.  

CI CONTENTION:  “Herniated nucleus pulposus cervical disks C-5/6 and C-6/7, post-traumatic.”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040817	VARD - 20041217	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5341*	10%	Residuals of C-Spine Injury…	5299-5243	20%	20040903	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

* 5341 is an administrative error; the correct VASRD code is 5241. 

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent surgery on his cervical spine in April 2004 for discectomy and fusion of the C5-6 and C6-7 vertebrae.  The 8 July 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of continued constant neck pain, rated 5/10 in severity, and alleviated by medication.  Physical examination showed a recently healed surgical scar.  Range of motion (ROM) was recorded as flexion to 25 degrees (normal 45) and combined ROM of 200 degrees (normal 340) with motion limited by pain.  Neurologic examination was normal.

At the 3 September 2004 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported continued neck pain ranging in severity from 3-4 to 7/10.  Physical examination showed normal gait and posture, with no use of assistive devices.  The neck displayed no tenderness or spasm.  ROM was recorded as flexion to 45 degrees and combined ROM of 245 degrees, with motion limited by pain.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition at 10%, coded 5341 (spinal fusion), citing “rated for forward flexion 35 [degrees].”  The panel observed an administrative error where the correct VASRD coding should read 5241.  The VA rated the neck at 20%, analogously coded 5299-5243 (analogous to intervertebral disc syndrome), based on the C&P examination, citing that 10% was assigned for range of motion, while “…an additional 10% rating has been added...due to pain on motion.”

The panel noted that the NARSUM examination was 3 months after the cervical fusion while the VA examination was 4 months after surgical fusion.  Panel members agreed that the VA examination most closely approximated post-surgical functioning and therefore; placed higher probative value on that examination.  Panel members agreed the evidence supports a 10% rating for painful motion of the cervical spine.  There was no evidence of muscle spasm or guarding severe enough to result in an abnormal spinal contour to support a 20% rating.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), and in light of the fact that the C&P examination most closely reflected the severity of the condition at the time of separation, the panel majority concluded there was insufficient cause to recommend a change in the PEB adjudication for the chronic neck pain.  

BOARD FINDINGS:  In the matter of the chronic neck pain and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent recommends modification to 20% and did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

AR20180013150, XXXXXXXXXXXXXXXXXX. 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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.