RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01072
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20080518

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E7, Military Policeman, medically separated for “intervertebral disc syndrome” with a disability rating of 10%.

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 – 20080317	VARD – 20090617	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Intervertebral Disc Syndrome 	5243	10%	Intervertebral Disc Syndrome 	5243	NSC	20080624	
Hypertension	Not Unfitting 	Hypertension	7101	0%	20080624	
GERD	Not Unfitting	Gastroesophageal Reflux Disease	7346	10%	20080624	
Hyperlipidemia	Not Unfitting	No VA Placement	
Akathisia	Not Unfitting	Akathisia	8999-8914	NSC	20080624	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Intervertebral Disc Syndrome (IVDS), Cervical Spine.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s cervical spine condition began in or about September 2006 when he reported getting tighter and stiffer in the absence of an inciting event or injury.  Chiropractic treatment provided limited improvement.  At a pre-deployment medical visit on 11 July 2007 the CI reported that on the first day he wore his full battle gear he fell when his gait was not steady, hit his head on the floor, but denied loss of consciousness.  An MRI dated 12 July 2007, ordered for some subtle balance problems, brisk reflexes, and mild akathisia (inner restlessness and inability to keep still - see below), demonstrated a large right central disc herniation extrusion at C6-C7 with deformity of the right C7 nerve root sleeves and right neural foramina (where nerves pass through the vertebral column) stenosis; a moderate sized C5-C6 central disc herniation protrusion; and a small C7-T1 right central disc herniation protrusion.  The CI rarely had neck pain and denied any limb weakness or radicular pain.  On 19 July 2007 the neurologist noted that, given the large disc herniation and known root compression, it was not in his best interest to bear weight such as helmet and ballistic vest/load bearing vest, which could worsen the condition and lead it to become symptomatic.  A P3 profile was issued. 

During the 4 September 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, the examiner recorded that the CI had multilevel cervical spine disc herniations, but checked normal spine and neurologic on the clinical evaluation.  The 15 November 2007 MEB NARSUM examination, 6 months prior to separation, noted complaints of occasional intermittent neck pain or stiffness which was not severe.  He denied any limb weakness or numbness, spasticity, or bradykinesia (slowness of motion).  Physical examination showed normal motor strength in all extremities, normal sensation, and normal reflexes.  Gait was noted to be casual and “stress gait narrow-based.”  Range of motion (ROM), tenderness, spasm, and spinal contour abnormalities were not addressed.  

The 26 November 2007 MEB ROM measurements by physical therapy, 6 months prior to separation, showed forward flexion of 55 degrees (normal 45) and a combined cervical ROM of 295 degrees (normal 340) after repetition, with no pain on motion.  At a neurosurgical clinic visit dated 29 January 2008, less than 4 months prior to separation, the CI reported no neck or arm pain and took no pain medication.  Physical examination revealed motor strength of 5/5 with sensation intact.  The CI was not a surgical candidate because surgery could not improve his asymptomatic state.  

At the 24 June 2008 VA Compensation and Pension (C&P) examination, 1 month after separation, the CI denied any trauma to his neck even though he reported initial onset in June 2007 after he fell and hit his head.  He reported that he had never had any pain in his neck, but did complain of discomfort in his upper back with wearing of personal safety or load bearing equipment.  The CI denied “any stiffness, weakness, radiating pain or any other associated features or symptoms.”  Physical examination showed no objective evidence of tenderness, spasm, guarding, or abnormal spinal contour.  Gait and posture were normal.  The neck was supple with no mass or adenopathy.  The spine was straight with no scoliosis and spine curvatures were intact.  There was no evidence of an IVDS, no effect on bowel or bladder function, and no incapacitating episodes in the prior 12 months.  ROM showed forward flexion of 30 degrees (normal 45) and a combined cervical ROM of 290 degrees (normal 340).  There was no pain or additional limitation of motion on repetition; and there was no fatigability, weakness, lack of endurance, or incoordination.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5243 (IVDS), citing tenderness to palpation.  The VA determined the neck condition was not service connected, based on the C&P examination, citing the IVDS existed prior to the last period of active duty and was not permanently worsened as a result of service.

The panel considered the disparate ROM measurements between the physical therapy examination, 6 months prior to separation, and the VA examination 1 month post separation.  While the VA examination was more proximate to separation, both the STR and VA examination were silent in regard to any interim accident, injury, or surgery.  Furthermore, at a neurosurgery examination less than 4 months prior to separation, the CI did not report any neck pain.  There was MRI evidence of a right eccentric C6-7 disc herniation and disc herniations at C5-6 and C7-T1; however, no ROM measurements were in evidence.  Therefore, members agreed that, in the absence of any documentation to explain the decrement in the ROM of flexion, the panel is in accord with the PEB finding of a 10% rating.  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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the neck condition.  

Contended PEB Conditions:  Hypertension, GERD (Gastroesophageal Reflux Disease), Hyperlipidemia, and Akathisia.  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, 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 there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the neck condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended hypertension, GERD, hyperlipidemia, and akathisia conditions, the panel recommends no change from the PEB determinations as not unfitting.  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

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170227, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180006637, 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