RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00852
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20090512

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E7, Human Resources Specialist, medically separated for “chronic neck pain” with a disability rating of 10%.  

CI CONTENTION:  She did not receive a retirement despite serving almost 19 years of full time service.  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 - 20081007	VARD - 20100528	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5241	10%	Status Post Cervical Discectomy with Osteoarthritis	5242	10%	20100224	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent cervical spine surgery with discectomy and fusion of the C5-6 and C6-7 vertebrae in March 2006.  A 2-year post-operative MRI showed a remote anterior fusion of C5-C7 without evidence of complication and with normal vertebral body heights and normal disc spaces.  The MEB forwarded both cervical spondylosis and bilateral upper extremity radiculitis with left C7 radiculopathy to the PEB for adjudication.  At the 9 July 2008 physical therapy range of motion (ROM) study, 10 months prior to separation, there was 40 degrees of flexion (normal 45) and 260 degrees of combined ROM (normal 340).  The examiner recorded 7/10 pain with ROM testing, but no change after repetition.  There was tenderness, but no guarding or spasm.  
The 22 July 2008 MEB NARSUM examination, 10 months prior to separation, noted complaints of 7/10 neck pain aggravated by repetitive lifting, overhead reaching, or repetitive neck movements.  The CI also complained of pain radiating down her left arm and pain, numbness, and tingling in her right arm with certain activities.  Physical examination showed tenderness without palpable deformity or spasm.  Cervical ROM was reported as guarded, but measurements were not recorded and there was no report of abnormal gait or spinal contour.  However, there was full active ROM of her upper extremities.  Neurologically she had normal reflexes and sensation in her upper extremities.  Spurling’s maneuver (to determine nerve root irritation) was positive with reproducible pain down the left triceps and medial scapular border with rotation of the head to the left and right.  Manual motor testing revealed -4/5 muscle strength in left shoulder abduction and external rotation.  All other areas in the upper extremities showed full motor strength.  

At the 24 February 2010 VA Compensation and Pension (C&P) examination, 9 months after separation, the CI reported severe neck pain that traveled down to her shoulders and arms.  She denied incapacitating episodes.  Physical examination showed tenderness, but gait and posture were normal and there was no evidence of radiating pain, muscle spasm, guarding, weakness, loss of tone, atrophy of the limbs, or ankylosis.  ROM testing showed painless flexion of 45 degrees and painless combined ROM of 340 degrees.   

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5241 (spinal fusion), citing tenderness with forward flexion of 40 degrees and combined ROM of 240 degrees.  [The panel noted the PEB considered radiculopathy in its adjudication and rendered a de facto “not unfitting” determination by not explicitly addressing the MEB’s submission of radiculopathy.  Furthermore, the CI did not specifically contend this condition.  Therefore, radiculopathy is not in the panel’s scope of review.]  The VA also rated the neck condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing localized tenderness.  

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, as reported on the NARSUM examinations prior 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.  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 of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the neck condition.  

BOARD FINDINGS:  In the matter of the neck condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends there be no modification or re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180006628, 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.

Sincerely,					      
Enclosure