RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01690
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20050315

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Human Resources Specialist, medically separated for “chronic neck pain with C6-7 herniated nucleus pulposus (HNP), without neurologic deficit” with a disability rating of 10%.  

CI CONTENTION:  “I do not believe full and adequate testing was performed to identify the full extent of injuries.  Because of injury being too new, there was no evaluation of consequential health issues such as headaches and pinched nerve down left arm.”  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 - 20050222	VARD – 20051025 & 20060324	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain with C6-7 HNP … 	5243	10%	Cervical Spine Degenerative Disc Disease with a HNP	5243	30%	20050804	
Cervical Radiculopathy, Left	Not Unfitting	Cervical Radiculopathy, Left	8599-8515	Deferred; 20%	20050804
20060110	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Neck Pain with C6-7 HNP, without Neurologic Deficit.  According to the service treatment record and MEB narrative summary (NARSUM), the right-handed CI’s neck pain condition began in September 2003 after conducting sit-ups during physical training.  The CI heard a popping sound with immediate burning sensation in her neck, left shoulder, and upper arm, and tingling in her left fingers.  Emergency care was sought.  An MRI showed disc protrusion at C6-7 with some impingement on the spinal cord and nerve root.  Continued treatment with cervical traction, collars, and pain medications did not relieve the CI’s neck and left upper extremity symptoms.  

The 7 January 2005 MEB NARSUM examination, 2 months prior to separation, noted a chief complaint of cervical radiculopathy.  The CI reported significant pain radiating in the left shoulder and left arm with activity.  She had difficulties with overhead lifting and sustained upper extremity activities.  Physical examination cited range of motion (ROM) measurements from the 8 February 2005 examination showing flexion at 40 degrees (normal 45) and combined ROM at 240 (normal 340)  

The 25 January 2005 neurology evaluation for cervical radiculopathy indicated a burning sensation in the left shoulder when reaching straight in front of her.  She described tingling of the left hand that occurred only with prolonged exertion, and denied weakness in the hand, fingers, or arm.  Physical examination showed neck pain with motion and referred neck pain with shoulder abduction against resistance.  Strength and sensation were normal.  Reflexes were symmetric with hyperactive triceps reflexes.  The neurologist stated “no neurologic deficits on my examination today.”  Surgical referral was not recommended.  

At the 4 August 2005 VA General Compensation and Pension (C&P) examination, 5 months after separation, the CI reported continuous neck pain associated with weakness, stiffness, and spasms with flares.  Pain radiated to her left shoulder down to her fingers, and was aggravated by activity.  The CI reported missed work (8 sick days), and had five episodes of being bed bound for 12-24 hours related to neck pain.  Physical examination showed no gait abnormalities.  The neck was supple with spasm, tenderness, and pain-limited motion.  ROM showed flexion at 10 degrees with combined ROM at 105 degrees.  There appeared to be fatigue, weakness, and lack of endurance with initial ROM testing.  Repetitive motion testing was not performed due to increasing pain.  Upper extremities showed normal strength, sensation, and reflexes.  Diagnoses were cervical spine DDD with mild to moderate impairment secondary to pain and decreased ROM, and cervical radiculopathy (left upper extremity) with mild to moderate impairment secondary to pain.  

At the 10 January 2005 Peripheral Nerve and Joints C&P examinations, 10 months after separation, the CI complained of neck pain, stiffness, and weakness with left arm (shoulder, elbow, and hand) radiating pain, dysesthesias, and paresthesias that interfered with about 70% of her daily functioning.  ROM showed flexion at 45 degrees with combined ROM at 310 degrees.  There was neck spasm and tenderness with decreased (4/5) strength.  Left wrist strength was 4/5 (symmetric to the right wrist).  Sensory examination showed decreased sensation to light touch and painful touch on the fourth and fifth fingers on the dorsal and ventral surfaces of the left hand.  Reflexes and hand strength were normal.  Diagnoses included peripheral neuropathy, radiculopathy, on the left side from the neck to the left shoulder and left hand; and left cervical radiculopathy.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck pain condition 10%, coded 5243 (intervertebral disc syndrome), citing limitation of motion.  The VA rated the neck condition 30%, coded 5243, based on the C&P examination, citing limitation of forward flexion.  

The panel deliberated on the probative value of the examinations in evidence and adjudged that the MEB evaluation aligned with the preponderance of the remainder of the pre-separation evidence, was closest to separation, and therefore had the highest probative value for rating at separation.  The initial C&P examination was considered an outlier due to spasm as the preceding Service evaluations and subsequent C&P examination all documented ROMs that did not approximate that level of ROM impairment.  

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 MEB examination.  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 pain condition.  

Contended PEB Condition:  Cervical Radiculopathy, Left.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended left cervical radiculopathy condition was not unfitting.  Left recurrent radiculopathy C6-C7 was specified on the profile, specifically implicated in the commander’s statement, and judged to fail retention standards.  The panel agreed that left cervical radicular symptoms appeared to be the principle condition impairing duty performance, and deliberated if the left upper extremity symptoms were subsumed in the cervical spine rating’s provision under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates),” or if it were a separately unfitting and ratable condition.  The examination findings are noted above under the rated neck pain condition.  

The critical decision is whether or not there was a significant neurologic impairment (weakness / sensory loss of the hand / etc.) or other functional impairment of the left upper extremity which would impact military occupation-specific activities.  The commander’s statement and profile clearly indicated that left recurrent radiculopathy C6-C7 was the predominant factor limiting duty performance.  The panel noted that the CI complained of paresthesias in addition to radiating pain, and that subsequent C&P examinations documented left arm weakness.  The panel agreed that the CI’s left cervical radiculopathy was unfitting.  

With regard to rating the condition, the predominant finding was neuritis which involved the shoulder and hand (all radicular groups) and was no greater than equivalent to mild incomplete paralysis.  After due deliberation, the panel agreed that the preponderance of the evidence with regard to the functional impairment of the left cervical radiculopathy condition favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 8599-8613 and meets the VASRD §4.124a criteria for a 20% rating due to mild neuritis which was no greater than equivalent to mild incomplete paralysis.  

BOARD FINDINGS:  In the matter of the chronic neck pain with C6-7 HNP condition, and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended left cervical radiculopathy condition, the panel agrees that it was unfitting and recommends a disability rating of 20%, coded 8599-8613 IAW VASRD §4.124a.  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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain with C6-7 HNP	5243	10%	
Cervical Radiculopathy, Left	8599-8613	20%	
COMBINED	30%	

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 

AR20180005413, 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, XXXXXXXXXXXXXXXXXX.

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