RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX		CASE: PD-2017-02613 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20070420

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E5, Motor Transport Operator, medically separated for chronic neck pain due to degenerative disc disease (DDD)” and “chronic right clavicle pain status post (S/P) clavicle fracture,” rated 10% and 0% respectively with a combined disability rating of 10%.

CI CONTENTION: “I am in constant pain and discomfort which is continuously getting worse. I could have served the final two years of my time in service and made it to retirement.” 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 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 - 20070307	VARD – NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain due to DDD	5299-5242	10%	
No VA Examination Proximate to Separation in Evidence	
Chronic Right Clavicle Pain S/P Clavicle Fracture	5099-5003	0%		
Chronic LBP due to DDD	Not Unfitting		
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: NA	
	
ANALYSIS SUMMARY:

Chronic Neck Pain due to DDD. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck condition began 12 June 2005 after falling off a tactical vehicle while performing periodic maintenance. Imaging in March 2006 revealed multi- level cervical disc herniation. During the 13 November 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported neck pain. Physical examination documented tenderness and decreased cervical range of motion (ROM) with no measurements provided. The MEB NARSUM examination, 2 days later, noted complaints of neck pain. Physical examination showed a normal gait and normal walking on heels and toes. Cervical

ROM was flexion of 35 degrees (normal 45) and a combined 230 degrees (normal 340) with painful motion.  Tenderness and spasm were severe.

The panel directed attention to its rating recommendation based on the above evidence. The PEB both analogously coded the neck condition 5299-5242 (degenerative arthritis of the spine). The PEB rated 10%, citing pain-limited motion, tenderness and spasm. 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), as reported on the NARSUM examination. The NARSUM examination found 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. 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 neck condition.

Chronic Right Clavicle Pain S/P Clavicle Fracture. According to the STR and MEB NARSUM, the CI’s right clavicle condition began in June 2005 after falling off of a tactical vehicle while performing periodic maintenance. The comminuted clavicle fracture was treaded conservatively, and an orthopedic specialist indicated it had healed with residual right arm pain and weakness. Orthopedic examination on 11 July 2006 noted complaints of right shoulder/clavicle pain, with findings of slight shoulder weakness (5-/5 abduction), and a healed right comminuted clavicle fracture with residual upper extremity weakness. During the 13 November 2006 MEB examination the CI reported right clavicle fracture and pain. Physical examination showed a tender right clavicle with decreased shoulder ROM due to pain. The MEB NARSUM examination 2 days later noted complaints of right clavicle pain. Physical examination showed normal upper extremity strength and sensation.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right clavicle condition 0%, analogously coded 5099-5003 (degenerative arthritis), citing the U.S. Army Physical Disability Agency pain policy and that the pain was slight/intermittent. The panel considered there was consistent complaint and findings of right clavicle tenderness with painful motion of the shoulder with functional loss supporting a 10% rating (based on §§4.59, 4.40 and 4.45). There was no dislocation or nonunion with loose movement to support any higher rating. 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 right clavicle condition, coded 5299-5203.

Contended PEB Condition: Chronic Low Back Pain (LBP) due to DDD. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The contended condition was profiled, implicated in the commander’s statement and NARSUM, and noted by the MEB as failing standards, and the condition existed prior to service with permanent service aggravation. The CI testified at a Formal PEB (FPEB) concerning the PEB’s not unfitting finding for her back condition. The FPEB indicated the CI’s back pain began in 2003, was aggravated by a September 2004 non-duty related vehicle crash, and there were good performance reports through April 2005. The FPEB noted the CI testified that she currently continued to perform her military occupational specialty duties and adjudged that the back condition was not unfitting. Subsequent USAPDA opinion supported the finding that the chronic back condition was not unfitting stating: testimony and records reflected that, although the back pain never did completely resolve, this condition did not significantly hinder her ability to perform either her civilian or military jobs. There was not a preponderance of performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation. After due deliberation, the panel concluded there was insufficient cause to recommend a change in the FPEB fitness determination for the contended condition, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the neck condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the right clavicle condition, the panel recommends a disability rating of 10%, coded 5299-5023 IAW VASRD §4.71a. In the matter of the contended back condition, the panel agrees it cannot recommend it for additional disability rating. 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	
Chronic Right Neck Pain due to Degenerative Disc Disease	5299-5242	10%	
Chronic Right Clavicle Pain, S/P Clavicle Fracture	5299-5203	10%	
	COMBINED	20%	

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20170313, w/atchs Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

PD-2017-02613

AR20190015536, XXXXXXXXXXXXX 

Dear XXXXXXXXXXXXX

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.

PD-2017-02613