DEPARTMENT OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023

IN REPLY REFER TO

1850
CORB:003
12 Feb 20

From: To:

Director, Secretary of the Navy Council of Review Boards PD-2017-01731

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 1 Oct 18

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy for appropriate
·action.

2.	On 31 January 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Physical Evaluation Board from 10 to 30 percent with assignment to the Permanent Disability Retired List.

3.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, was sent to the office of the Deputy Commandant, Manpower and Reserve Affairs, for correction of your records as stated above.	You will be notified once those changes are complete.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2017-01731
BRANCH OF SERVICE:  Marine Corps	SEPARATION DATE:  20051031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve O-2, Adjutant, medically separated for “cervical strain” with a disability rating of 10%.  

CI CONTENTION:  “The initial rating I was given by the USMC was significantly different from evaluation that the VA had.”  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 - 20050815	VARD - 20060110	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cervical Strain 	5237	10%	Residuals Degenerative Disk Disease, Cervical Spine	5243	30%	20050820	
Chronic Cervical Pain	Cat II					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Cervical Strain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s neck condition began in November 2003 after sustaining an accidental blow to the left side of the head with a rifle.  Cervical spine X-rays showed multilevel cervical spondyloarthropathy, but an MRI normal; however, in February 2005 a subsequent MRI showed mild disc bulging at C6-7 with signs of mild encroachment upon the peripheral canals bilaterally, but no definite neural encroachment was seen.  The 15 July 2005 physical therapy (PT) range of motion (ROM) evaluation showed flexion of 15 degrees (normal 45) and combined ROM of 155 degrees (normal 340) with painful motion.  No muscle tightness was noted in the paraspinals.  

During the July 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported increased neck pain on movement.  Physical examination revealed decreased ROM in all planes of motion, specifically noting “10 degrees left and right, 80 degrees up and 20 degrees down.”  The 27 July 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of pain in the neck and the right upper extremity.  Physical examination noted the CI ambulated normally, but had limited cervical spine motion “(without measurements), but less so than on his previous exam.”  The 27 July 2005 neurosurgeon clinic examination noted “improved ROM” but with pain shooting into the right trapezium.  There was no evidence of myelopathy.  The neck was non-tender.  

At the 20 August 2005 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported neck pain that sometimes would travel down his right arm to his fourth and fifth fingers.  Pain was rated 2-8/10 depending on activity levels.  Physical examination showed a normal posture and gait without tenderness, muscle spasms or radiation of pain on movement.  The ROM evaluation showed flexion of 10 degrees and combined ROM of 210 degrees with pain at 0 degrees.  The examiner stated he was unable to determine additional limitation in degrees without resorting to speculation.  X-rays were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5237 (cervical spine strain).  The PEB’s Category II diagnosis of chronic cervical pain was intrinsic to the rated condition and a separate rating cannot be supported without pyramiding (VASRD §4.14); thus, it is appropriately subsumed under the same rating.  The VA rated the neck condition 30%, coded 5243 (intervertebral disc syndrome), based on the C&P examination, citing flexion of 10 degrees.  

The VA examination was closest, and prior to separation, and had the greatest detail, including consideration of DeLuca criteria and repetition, and was therefore adjudged to have the highest probative value for rating at separation.  The panel agreed that a 30% rating was justified for limitation of flexion not greater than 15 degrees as reported on the PT and VA examination.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  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 neck condition, coded 5237.  

BOARD FINDINGS:  In the matter of the neck condition, the panel recommends a disability rating of 30%, coded 5237, IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

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	
Cervical Strain 	5237	30%