RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01315
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Motor Transport Operator, medically separated for “chronic neck pain” with a disability rating of 10%.  

CI CONTENTION:  “The VA awarded me 100%.  Also, my medical condition is getting worse.”  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 - 20050509	VARD - 20051110	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5243	10%	Degenerative Disc Disease, Cervical Spine	5243	10%	20050825	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck condition began in December 2000 without any known trauma.  An MRI in December 2000 showed a herniated nucleus pulposus (HNP) at C5-6.  The CI treated conservatively with anti-inflammatory medication, physical therapy with traction and a TENS (transcutaneous electrical nerve stimulation) unit.  By early 2004 the CI was complaining of progressive chronic neck pain.  On 28 July 2004 the CI had full active range of motion (ROM) with pain on movement and radicular symptoms with flexion and extension.  An MRI on 1 August 2004, 10 months prior to separation, showed  a large somewhat focal disc extrusion at C5-C6 protrusion causing narrowing of the right neuroforamen (opening through which traverse the vertebral column) and compression on the spinal cord and decreased the AP (anterior posterior) diameter of the vertebral canal to 9 mm.  A broad-based disc protrusion at C6-C7 disc level caused narrowing of the AP diameter of vertebral canal to approximately 9 to 10 mm and the neuroforamen appeared slightly narrowed.  At C4-C5 disc level there was a small focal disc protrusion causing no evidence of impression.

At the time of the neurosurgery clinic appointment on 2 December 2004, 6 months prior to separation, the CI reported chronic neck pain with intermittent pain in the back of the right arm and in the medial three digits.  On examination motor strength was normal throughout and sensory was grossly intact to light touch.  Deep tendon reflexes were 1/4 throughout and symmetric.  The clonus test (to determine corticospinal abnormality) and Hoffman’s test (to determine cervical spinal cord compression) were both negative.  The neurosurgeon’s assessment was an ossified posterior longitudinal ligament with disc/osteophyte protrusions at C5/6 and C6/7.  Surgical intervention was not indicated for pain.  There was no evidence of myelopathy on the clinical examination and the CI did not believe his arm symptoms were troublesome.  Electrodiagnostic studies on 29 December 2004 revealed borderline bilateral median neuropathy at the wrists, and chronic, mild right C8 radiculopathy without any evidence of acute entrapment.  The CI received a cervical epidural steroid injection on 22 March 2005.  

The 23 March 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant, dull, pressure type neck pain with intermittent radiation down the right arm to his hand.  Physical examination showed there was tenderness from C3 through T1 and there were also tender bilateral cervical muscle spasms.  Motor strength was normal for bilateral upper extremities.  Cervical spine range of motion (ROM) showed flexion of 15 degrees (normal 45) and combined ROM of 225 degrees (normal 340) with painful motion.  A note dated 17 May 2005 indicated a total of three injections were given and a headache was aggravated after the first injection and worsened after the third.  The headache was somewhat relieved with nonsteroidal-anti-inflammatory drugs (NSAIDs) and Tylenol.  

At the 25 August 2005 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported constant neck pain with some radiation on the right.  Medications included Darvocet (propoxyphene, a narcotic, and acetaminophen, a pain reliever) and Aleve (naproxen, an NSAID).  Physical examination showed tenderness in the C5-C6 region and no tenderness in the paraspinal musculature.  There was no sensory deficit.  Grip strength and strength of abduction of shoulders was normal bilaterally.  Cervical spine ROM after repetition showed flexion of 55 degrees (normal 45), although the actual measurements were 63 degrees and 57 degrees and combined ROM of 295 degrees (normal 340).  X-rays of the cervical spine showed mildly diminished height of the C5 and C6 vertebral bodies, which may have been congenital or acquired.  Other disc heights were maintained.    

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5243 (intervertebral disc syndrome), citing a tender neck, positive muscle spasms, without clinical motor neurological abnormality, and cervical ROM limited by pain.  The VA also rated the neck condition 10%, using the same code (5243), based on the C&P examination, citing forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined ROM of the cervical spine greater that 170 degrees but not greater than 335 degrees.    

The panel noted the limitation of cervical spine motion recorded in the MEB NARSUM examination met the threshold for a 30% rating, but panel members noted that the CI had received an epidural steroid injection one day earlier causing increased pain.  To the panel majority that suggested the increased pain caused the limited flexion measurement to 15 degrees and was not reflective of the actual disability.  Furthermore, the panel majority noted the VA examination was more proximate to separation and more detailed and it reported a ratable flexion of 45 degrees.  Therefore the panel majority placed greater probative value on the VA examination results, along with other examination results prior to separation, which are more consistent with a 10% rating. The panel majority agreed that a 10% rating, but no higher, was justified for the combined ROM (greater than 170 degrees but not greater than 335 degrees), as reported on the C&P examination proximate 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 IVDS 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), the panel majority 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 majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel majority recommends no modification or re-characterization of the CI’s disability and separation determination.  

Minority Opinion.  The minority voter recommends a 30% rating for the following reasons:  The most proximate examination prior to separation was the NARSUM examination where flexion was measured with a goniometer IAW VASRD guidance and was reported at 15 degrees, which warrants a 30% rating rather than the 10% rating assigned by the PEB.  Additionally, a passive ROM for flexion was reported at 25 degrees with an annotation that it was decreased compared to normal, keeping in mind that a passive ROM is not a first-line option for rating purposes when an active ROM is available.  Furthermore, imaging prior to separation showed protrusions of three discs:  a small focal disc protrusion at C4-C5; a large somewhat focal disc extrusion at C5-C6 level that caused narrowing of the right neuroforamen, compression on the spinal cord, and decreased diameter of the vertebral canal; and a broad based disc protrusion at C6-C7 disc level that caused narrowing of vertebral canal and slight narrowing of the neuroforamen.  While the members of the panel majority speculated that the epidural steroid injection one day prior to the NARSUM may have exacerbated the neck pain thereby decreasing the flexion measurement since the CI’s headache became worse, it is only speculation especially since the CI had imaging that showed protrusion of three discs, two of which a neurosurgeon felt were causing the CI’s pain along with an ossified posterior longitudinal ligament, which may cause a myelopathy, but in this case did not.  Therefore, with confirmation of pathological findings, how the VA examiner recorded flexion measurements of 63 degrees and 57 degrees, which is 18 degrees and 12 degrees greater than the normal VA ROM for flexion of 45 degrees, is unclear.  Therefore, to accept the measurements without an explanation for the disparity from normal, especially since the CI reported use of pain reliever medication including a narcotic, is to give undue reliance on the post-separation VA examination at which time the CI no longer had to perform military duties or wear or carry equipment.  Other pre-separation measurements that were referred to at the hearing lacked quantitative measurements; therefore reliance on them should likewise be limited.  More importantly, the NARSUM ROM measurements were performed prior to separation and after earlier aforementioned examinations.  Therefore, the PEB ought to have considered the NARSUM measurements for rating purposes, or if the PEB felt the 15 degrees flexion measurement warranted a repeat, it could have directed a follow-up examination, but the STR does not indicate such was done.  Therefore, the minority voter finds that the NARSUM examination finding of flexion of 15 degrees is credible in view of imaging findings and the need for injections to ameliorate the chronic neck pain as well as the most proximate and quantitatively precise examination prior to separation.  

Thus, the minority voter recommends the ROP, including the Board Findings, be modified as follows:  

The panel agreed that a 30% rating was justified for limitation of flexion not greater than 15 degrees as reported on the MEB NARSUM examination.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the chronic neck pain condition, coded 5243.  

BOARD FINDINGS: In the matter of the neck condition, the panel recommends a disability rating of 30%, coded 5243 IAW VASRD §4.71a.  

The panel recommends 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5243	30%	

AR20180015062, 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.