RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02208
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20061007

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Q1 Patriot Fire Control Operator, medically separated for “chronic neck pain” with a disability rating of 0%.

CI CONTENTION:  Review of all conditions was requested to include additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 - 20060724	VARD - 20061030	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5235	0%	Residuals, Status Post Fracture with Mild Disc Bulging, Cervical Spine	5235	20%	20060831	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Chronic Neck Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s neck conditions began in February 2006 after being involved in a motor vehicle accident that resulted in a C2 vertebra left facet fracture.  There was no surgical indication.  A follow-up cervical spine CT scan in April 2006 showed some C2 fracture healing and minimal C4-5 and C5-6 disc bulging.  A CT scan on 7 Jun 2006 showed some (but not complete) healing had occurred; and the examiner suggested the possibility of nonunion.  

The 29 June 2006 MEB physical therapy (PT) examination, 3 months before separation, revealed cervical spine flexion to 15 degrees (normal 45) and combined range of motion (ROM) of 125 degrees (normal 340) with painful motion.  During the 20 July 2006 MEB NARSUM examination the CI reported neck pain.  Physical examination revealed no cervical spine muscle spasm and neck ROM was “full” with painful motion and crepitus. During the 31 August 2006 VA Compensation and Pension (C&P) examination, one month before separation, the CI reported chronic [neck] pain and aches whenever he did strenuous activities.  Physical examination revealed a non-antalgic gait and a mild manifestation of cervical spine pain and stiffness.  Cervical spine flexion was 35 degrees and combined ROM was 280 degrees with painful motion.  The examiner opined that flare-ups would increase “functional loss equated to forward flexion limited to 30 degrees…”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 0%, coded 5235 (vertebral fracture and dislocation), citing full [cervical spine] motion.  The VA rated the neck condition 20%, also coded 5235, based on the C&P examination, citing cervical spine limitation of motion.  The panel deliberated on the probative value of the disparate examinations in evidence.  Although the PT evaluation may have supported a 30% rating for forward flexion of the cervical spine 15 degrees or less, the NARSUM and pre-separation C&P examinations documented less cervical spine limitation.  The NARSUM and C&P examinations both supported a 10% rating for painful motion IAW VASRD §4.59 (painful motion).  The C&P examination was closest to separation, most detailed, and aligned best with the underlying pathology and the remainder of the evidence, and was adjudged to have the highest probative value for rating at separation.  Considering VASRD §§4.40, 4.45, and 4.59, the panel agreed that there was additional functional limitation due to painful motion during flare‐ups which most nearly approximated the criteria for the higher rating of 20%.  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 majority recommends a disability rating of 20% for the neck condition, coded 5235.

BOARD FINDINGS:  In the matter of the neck condition, the panel majority recommends a disability rating of 20%, coded 5235 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  The single voter for dissent recommends modification to 10%, coded 5235, and did not elect to submit a minority opinion.  The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5235	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20190007585, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

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

Sincerely,					       

Enclosure