RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXX	CASE: PD-2017-04261
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20051230

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E7, Food Service Operations Technician, medically separated for “chronic neck pain…” with a disability rating of 10%.

CI CONTENTION: He was given a higher rating by the VA. Review of all conditions was requested. 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 - 20050823	VARD - 20060309	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5241	10%	S/P Cervical Fusion…	5241	30%	20051019	
Mood Disorder…	Not Unfitting	Mood Disorder…	9435	30%	20051018	
Migraine Headaches		Chronic Migraine & Tension h/a…	8100	50%	20051019	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 90%	
	
ANALYSIS SUMMARY:

Chronic Neck Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent surgery on his cervical spine in April 2004 to fuse two vertebrae (C6-7 discectomy & fusion with instrumentation). During the 16 April 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 8 months prior to separation, the CI reported chronic neck pain. Physical examination revealed a normal gait, with a healed surgical scar and no swelling or discoloration of the neck. Tenderness was noted, and range of motion (ROM) was recorded as “marked” limitation of motion in all directions (normal is flexion to 45 degrees  and

combined ROM of 340 degrees). The 25 August 2005 physical therapy examination, 4 months prior to separation, recorded ROM as flexion to 15 degrees with combined ROM of 145 degrees, with painful motion noted in all planes of motion. During the physical medicine examination one week later the CI complained of constant neck pain rated 6/10 in severity, worsened by walking, standing, or prolonged sitting. Physical examination revealed a normal gait, with neck tenderness present and neck ROM decreased at least 50% in all directions.

At the 19 October 2005 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported constant radiating neck pain rated 5/10 in severity, elicited by physical activity, stress, standing, or prolonged sitting. Physical examination showed normal gait and posture, with no neck muscle spasm or tenderness. The examiner indicated the cervical spine was ankylosed in a favorable position, and no ROM was performed “because the spine is ankylosed.”

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the neck at 10%, coded 5241 (spinal fusion). The VA used the same code but rated the neck at 30% based on the C&P examination. VASRD ratings for the cervical spine are based on active ROM and not passive ROMs. The panel agreed that a 30% rating was justified for limitation of flexion not greater than 15 degrees as reported on the physical therapy and VA examinations. 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 pain, coded 5241.

Contended PEB Condition: Mood Disorder Due to Chronic Back Pain with Major Depressive Type Episodes. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The mood disorder was profiled S3 and failed retention standards. However, it was implicated in passing in the 26 October 2004 commander’s statement which also indicated the CI remained well motivated, and only impairment from pain medications was implicated in the 26 May 2005 commander’s statement. The CI specifically indicated on DD Form 2697 (Report of Medical Examination) dated 6 April 2005 that only his “Neck/upper back Chronic pain and meds” limited performance of military duties, and also the CI did not include mood disorder in the PEB rebuttal, although chronic pain and medications were noted. The panel considered that the mood disorder was due to chronic pain from the unfitting neck condition and any disability due to pain and pain medication was considered under rating the neck condition above. There was insufficient performance-based evidence from the record that the mood disorder and depressive symptoms, absent the unfitting neck 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 PEB fitness determination for the contended mood disorder condition, so no additional disability rating is recommended.

Contended PEB Condition: Migraine Headache/Muscle Contraction Headache. The panel’s main charge is to assess the fairness of the PEB determination that the contended headache condition was not unfitting. The headache condition was mentioned in the 6 April 2005 NARSUM as due to neck pain that led to headaches and if untreated led to migraine headaches. The NARSUM did not list headaches as a final diagnosis, and headaches were not listed on the MEB dated 3 June 2005. Headaches were not typed-in on the 7 July 2005 informal PEB (IPEB), but appeared as a hand-written diagnosis #3 (not initialed). The CI rebutted the IPEB findings and the 22 August 2005 profile listed only “recurrent migraine and muscle tension headache” (no listing of neck pain or depression), as P4, and remarks indicated an MEB consult was dictated. The 18 August 2005 neurology consult for MEB listed headache as the chief complaint, with 10 years of headaches that had increased in intensity over the last 2 years. And there were mixed tension and migraine headaches with “…at least once a week, the severe headaches force him to  retire

to a dark, quiet room where he can sleep off the severe headache.” The CI’s DD Form 2697 did not indicated headaches as interfering with duty and the MEB history noted “daily headaches that left untreated turn to migraines.”

As noted above, the 26 May 2005 commander’s statement implicated impairment from pain medications, and the panel adjudged that impairment from pain and pain medications was considered under rating the unfitting neck condition. The CI’s rebuttal to the FPEB indicated migraine impairment was a significant part of the FPEB and an appeal through the Army Physical Disability Agency upheld the adjudication that the headache condition was not additionally unfitting. There was insufficient performance-based evidence from the record that the headache 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 formal PEB fitness determination for the contended headache condition, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the chronic neck pain, the panel recommends a disability rating of 30%, coded 5241 IAW VASRD §4.71a. In the matter of the contended mood disorder and headache condition, the panel recommends no change from the PEB determinations as not unfitting.  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	
Chronic Neck Pain…	5241	30%	

The following documentary evidence was considered:

	PD-2017-04261
AR20190012177, XXXXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent disability retirement with the combined disability rating of 30% 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 permanent 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.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

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

	PD-2017-04261