RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01534
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070605

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Cannon Crewmember, medically separated for “chronic neck pain and right arm pain post C5-C6 anterior discectomy and 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 - 20070412	VARD - 20071019	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain and Right Arm Pain Post C5-C6 Anterior Discectomy and Fusion	5241	20%	Spondylosis w/Pseudoarthrosis and Non-Union, S/P Anterior Discectomy and Fusion Cervical Spine	5241	10%	20070523	
Hypercholesterolemia	Not Unfitting	No VA Placement	
Seborrheic Dermatitis	Not Unfitting	Seborrheic Dermatitis	7806	10%	20070523	
Hiatal Hernia	Not Unfitting	Gastroesophageal Reflux Disease w/Hiatal Hernia	7346	10%	20070523	
Gastroesophageal Reflux Disease	Not Unfitting					
Hemorrhoids	Not Unfitting	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Neck Pain and Right Arm Pain Post C5-C6 Anterior Discectomy and Fusion.  The PEB combined the neck and right arm pain conditions as a single unfitting condition coded analogously to 5241 (spinal fusion) and rated 20%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

According to the service treatment record and MEB narrative summary (NARSUM), the CI’s neck and right arm pain condition began in May 2005 during combatives training, when his partner fell on him causing a hyperextension injury to his neck resulting in immediate right arm pain.  On 12 April 2006 the CI underwent a C5-C6 anterior cervical discectomy and fusion.  Post operatively the right arm pain resolved; however, the neck pain remained.  X-ray studies on 21 November 2006 revealed anticipated surgical changes.  

During the 12 December 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, physical examination (PE) revealed decreased and painful range of motion (ROM) of the cervical spine.  The 24 January 2007 MEB NARSUM examination, 5 months prior to separation, noted complaints of worsening neck pain and mild recurring right arm pain.  The CI denied having any problems with balance or fine motor movements.  The PE findings were cited as the same found on the above 12 December 2006 examination.  Cervical tenderness was present.  The diagnoses were listed as cervical spondylosis (osteoarthritis) and pseudoarthrosis/nonunion after C5-C6 arthrodesis (joint surgery).  

At the 23 May 2007 VA Compensation and Pension (C&P) examination, 2 weeks before separation, the CI reported that his prior surgical procedure “…did get rid of the pain that was radiating into the right triceps (arm) area.”  Additionally, “He says the strength in his arms is good now and that the strength in the right arm used to be bad before surgery.”  The PE revealed painful and decreased ROM of the cervical spine.  Forward flexion was measured at 40 degrees (normal 45) and the combined ROM was 270 degrees (normal 340). 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB assessed the CI’s neck condition as pseudoarthrosis/nonunion and rated it at 20%, coded 5241 (spinal fusion), citing forward flexion of 30 degrees and limited by pain.  Utilizing the same impairment code, the VA rated the neck condition 10%, based on the C&P examination, citing painful and combined ROM to 270 degrees.  Panel members first agreed that the VA examination provided the greatest degree of probative value due to its close proximity to the date of separation.  Members also agreed that sufficient evidence of painful motion IAW §4.59 was present throughout the last 6 months of service to justify a minimum 10% impairment rating.  The PEB cited forward flexion of the cervical spine as 30 degrees (equating to 20% impairment).  Therefore, after due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB’s adjudication for the chronic neck pain condition.  Additionally, the CI’s own words describing the resolution of right arm symptoms after neck surgery; and within 2 weeks from separation, revealed that such prior symptoms did not constitute a separate unfitting condition, but rather were subsumed under the primary neck condition.  

Contended PEB Conditions:  Hypercholesterolemia, Seborrheic Dermatitis, Hiatal Hernia, Gastroesophageal Reflux Disease (GERD), Hemorrhoids.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The conditions were not 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 or near separation.  Therefore, after due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB’s 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 hypercholesterolemia, seborrheic dermatitis, hiatal hernia, GERD, and hemorrhoids 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 20170304, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180007942 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