RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-00925
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20071229

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Unit Supply Specialist, medically separated for “spinal fusion” with a disability rating of 20%.  

CI CONTENTION:  “Review all conditions.”  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 - 20071114	VARD - 20080716	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Spinal Fusion…	5241	20%	Fusion, Occipital to C-3 with Cervicalgia	5243	30%	20080605	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Cervical (Neck) fusion.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began in 2004 after striking his forehead in a swimming pool.  Diagnostic imaging studies showed instability at C1-C2 which prompted the CI to undergo a surgical fusion in September 2006.  The 17 September 2007 MEB NARSUM examination, 3 months prior to separation, noted complaints of severe neck pain with flexion.  The physical examination (PE) revealed a range of motion (ROM) of 30 degrees flexion (normal 45) and a combined cervical ROM of 250 degrees (normal 340).  A physical therapy evaluation performed on 28 September 2007, 11 days after the NARSUM, revealed cervical ROM of flexion to 10 degrees, and a combined ROM of 150 degrees. 
At the 5 June 2008 VA Compensation and Pension (C&P) evaluation, 6 months after separation, the CI reported daily pain with headaches resolved with over-the-counter (OTC) pain medication.  The CI continued to experience post-surgical 7/10 neck pain while at rest.  His PE revealed cervical ROM as being painful and stiff.  Forward flexion of the cervical spine was documented as “12-14 degrees with Deluca.”  Motor and sensory examination of the upper extremities were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition at 20%, coded 5241 (spinal fusion), citing forward flexion of 30 degrees limited by fusion with tenderness and guarding.  The VA rated the neck condition at 30%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 6 months after separation, citing a forward flexion of 0-14 degrees with pain and stiffness.  The panel majority agreed that a 30% rating was justified for limitation of flexion not greater than 15 degrees as reported on the PT examination closest to the date of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the neck condition, coded 5241.  

BOARD FINDINGS:  In the matter of the neck condition, the panel majority recommends a disability rating of 30%, coded 5241 IAW VASRD §4.71a.  The single voter for dissent recommends no change from the PEB’s 20% adjudication and elected not to submit a minority opinion.  There are 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; and, that 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	
Spinal Fusion…	5241	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170224, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004870, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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

Sincerely,					      
Enclosure