RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02202
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070227

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Infantryman, medically separated from the Temporary Disability Retired List (TDRL) for “right (dominant) C7 radiculopathy” and “persistent neck pain,” rated 20% and 0%, respectively, with a combined disability rating of 20%.   

CI CONTENTION:  The condition continues to worsen and negatively affects daily activities.  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 - 20061208	VARD - 20051216	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right C7 Radiculopathy 	8599-8511	20%	Cervical (C7) Radiculopathy	8599-8515	30%	20050919	
Persistent Neck Pain	5243	0%	Cervical Disk Herniation	5242	10%	20050919	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Right Upper Extremity (RUE) Radiculopathy and Persistent Neck Pain.  Although the PEB rated the RUE radiculopathy and the neck condition separately, their relationship was inextricably intertwined and the details related to each condition are presented together below.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s neck condition began in October 2004 and was associated with radiating RUE pain and numbness.    The CI was separated and placed on the TDRL in October 2005.  Electrodiagnostic testing on 11 October 2006 was consistent with a chronic, severe, C-7 radiculopathy on the right, with evidence of a moderate to severe motor deficit.  The 11 October 2006 physical therapy range of motion (ROM) study of the neck, after repetition, showed flexion of 30 degrees (normal 45) and combined ROM of 170 degrees (normal 340) with pain.  

The 11 October 2006 MEB NARSUM examination, 4 months prior to TDRL removal, noted complaints of continued persistent neck and RUE pain with an intensity of 5-6/10, which increased to 10/10, if aggravated, and was associated with transient pain and numbness or tingling of the right fourth and fifth digits, as well as diminished hand grip strength.  Physical examination showed a supple neck.  Sensation was intact, but there was 4+/5 right triceps and hand grip weakness and mildly diminished pinprick sensation in the right third and fourth digits.  Coordination and fine motor dexterity were intact and deep tendon reflexes were normal.  Gait and stance were normal.  The examiner’s diagnoses were right (dominant) C-7 radiculopathy with residual motor deficits and intervertebral disc herniation, C6-7, with limited ROM due to pain.  The examiner noted some overall improvement in the RUE strength; however, the CI continued to have mildly diminished triceps and intrinsic hand muscle strength and mild diminished sensation in the C-7 distribution of the right hand.  

The panel directed attention to its rating recommendation based on the above evidence.   The CI was removed from TDRL with a permanent disability disposition of separation with severance pay at 20%.  The PEB rated the RUE radiculopathy 20%, analogously coded 8599-8511 (middle radicular group), citing mild, incomplete paralysis.  The PEB rated the neck condition 0%, coded 5243 (intervertebral disc syndrome), citing ROM limited by pain.  

Panel members noted the RUE radiculopathy rating of 20% by the PEB reflected a mild incomplete paralysis of the middle radicular group.  However, there was a disparity between electrodiagnostic testing which was consistent with a chronic, severe, C-7 radiculopathy on the right with evidence of a moderate to severe motor deficit and the NARSUM examination where there was 4+/5 right triceps and hand grip weakness and mildly diminished pinprick sensation in the right third and fourth digits. From a functional standpoint the clinical findings favor a 20% rating for a mild disability using code 8599-8511 rather than a 40% rating for a moderate disability.  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 adjudication for the RUE radiculopathy.  

Panel members next considered a rating for the neck condition.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees) as reported on the physical therapy examination prior to TDRL removal.  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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the neck condition, coded 5243.  

BOARD FINDINGS:  In the matter of the RUE radiculopathy and IAW VASRD §4.124a the panel recommends no change in the PEB adjudication.  In the matter of the neck condition, the panel recommends a disability rating of 20%, coded 5243 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	
Right (Dominant) C7 Radiculopathy 	8599-8511	20%	
Persistent Neck Pain 	5243	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170301, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190007358, 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 40% 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.  Inquiries concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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

Sincerely,					      
Enclosure