From:
To:

Director, Secretary of the Navy Council of Review Boards

1N  HLY  PHTR f,):
1850
CORB:003
27 Feb 20

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 18 Feb 19

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

2.	On 21 February 2020, the Assistant General Counsel of the Navy (Manpower & Reserve Affairs) took action in your case by accepting the recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Department of the Navy Physical Evaluation Board (PEB) from 0% to 10% without re-characterization of your discharge.

3.	For your information, since all disability ratings from 0% to 20% qualify for disability severance pay, the above stated increase will not result in your entitlement to additional compensation.

4.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, has been forwarded to the Navy Personnel Command for appropriate changes to your personnel records and notification to you upon completion.

RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-02186 BRANCH OF SERVICE: NAVY	SEPARATION DATE: 20080617

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Air Traffic Controller, medically separated for “pseudoarthrosis” with a disability rating of 0%.

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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20080310	VARD - 20080624	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Pseudoarthrosis	5003	0%	

Degenerative Disc Disease… Cervical Spine	

5239-5242	

10%	

20080421	
Spondylosis	Cat II					
Intervertebral Disc Degenerative Disease	Cat II					
Chronic Neck Pain	Cat II					
Status Post Fusion with Failed Spine Surgery Syndrome	Cat II					
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 30%	
	
ANALYSIS SUMMARY:

Pseudoarthrosis. According to the service treatment record and the MEB narrative summary (NARSUM), the CI underwent spine surgery with C6-7 anterior cervical discectomy and fusion in June 2006 for severe upper extremity and neck pain. Post-operative imaging studies did not demonstrate any  significant  neural compression  or any  complications  with the surgical   site;

however, there was a broad disc protrusion slightly eccentric to the right at T2-3 level and a smaller broad disc protrusion was present at the T3-4 level. At an orthopedic spine consultation on 10 July 2007, examination revealed tenderness of the left trapezius and rhomboids and decreased ROM with left side bending and rotation. Muscle strength and sensation were intact. The examiner noted that the CT scan showed evidence of an intervertebral space question of nonunion at C6-7. A new medical regimen consisted of nerve pain medications, NSAIDS and a recommendation for a cervical bone growth stimulator for C6-7.

At the time of the physical therapy clinic appointment on 31 July 2007, 11 months prior to separation, the CI reported chronic neck pain and intermittent episodes of radiculopathy down the left arm. On examination, cervical spine range of motion (ROM) showed flexion of 20 degrees (normal 45) and combined ROM of 180 degrees (normal 340). Painful motion with side bending and left rotation was noted along with apprehension to move further during the extension motion. Cervical spine X-rays dated 16 August 2007 showed stable surgical changes with concern for incomplete graft incorporation (linear lucency across the graft material) and degenerative disk disease at C7-T1.

On 24 October 2007, the CI had a third surgical opinion for the inability to hold his head fixed without experiencing excruciating pain. On examination, he had a moderate amount of paraspinal muscle spasm and diffuse tenderness. In reviewing the imaging studies, the examiner noted a miniscule amount of movement between the C6 and C7 spinous processes, which was not inconsistent with bony fusion, and a radiolucency between the bony implant and the endplates of C6 and C7. The examiner was not sure if the operative site was completely fused, but could find no direct causal relationship between the CI’s surgery and the worsening of his neck pain; therefore, he did not believe additional surgery would alleviate his pain. Chronic pain management was recommended.

At a neurosurgical clinic visit on 15 February 2008 the examiner noted the CI had normal ROM in the cervical spine and a negative Spurling’s sign (to determine nerve root irritation) bilaterally. Ambulation, strength and reflexes were normal and there was no posterior cervical spine tenderness or muscle spasms appreciated. The examiner indicated the CT scan was equivocal and the radiologist felt there were areas across the endplates where no fusion had occurred. A diagnosis of pseudoarthrosis was rendered. Further surgery was not recommended.

The 15 February 2008 MEB NARSUM examination, 4 months prior to separation, noted complaints of severe neck pain when the CI’s head was held in a straight, stable position. Physical examination revealed normal ambulation, strength and sensation. His reflexes were 1+ and symmetric. He had full ROM in the cervical spine without Lhermitte’s sign (electric shock-like sensation that occurs on flexion of the neck) and the Spurling’s test was negative bilaterally. The spine was nontender with no muscle spasm present.

At the time of the physical therapy clinic appointment on 25 February 2008, 4 months prior to separation, the CI reported chronic neck pain. The ROM evaluation showed normal cervical flexion, but combined ROM was decreased to 215 degrees.

At the 21 April 2008 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported constant 8/10 neck pain with stiffness and weakness. Holding his head up for prolonged periods of time caused pain. He said he had incapacitation in the prior 12 months, but did not provide details. Physical examination showed no radiation of pain, muscle spasm, or tenderness and there was no ankylosis. Cervical spine ROM testing showed flexion of 45 degrees and combined ROM of 275 degrees. Painful motion was noted. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the neck condition 0%, coded 5003 (arthritis, degenerative). The Navy PEB also listed spondylosis, intervertebral disc degenerative disease, status post fusion with failed spine surgery syndrome and chronic neck pain as related diagnoses (Category II) which contributed to the disability in this case. The panel agreed that all of these conditions were diagnoses related to the pseudoarthrosis and were not separate conditions which could be separately rated without pyramiding (VASRD §4.14). The VA rated the neck condition 10%, dual coded 5239-5242 (spondylolisthesis or segmental instability-degenerative arthritis of the spine), based on the VA C&P examination, citing combined ROM of 275 degrees. The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 170 degrees but not greater than 335 degrees), as reported on the physical therapy and C&P examinations 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 intervertebral disc syndrome (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 recommends a disability rating of 10% for the neck condition, coded 5243-5241 (IVDS - spinal fusion).

BOARD FINDINGS: In the matter of the neck condition, the panel recommends a disability rating of 10%, coded 5243-5241 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, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Pseudoarthrosis	5243-5241	10%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170406, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record