RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05418
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070116

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve O3, Armor Officer, medically separated for “neck pain” with a disability rating of 10%.  

CI CONTENTION:  In addition to contending the neck and bilateral ankles, the CI requested review of an additional condition not identified by the Medical Evaluation Board (MEB) or 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 - 20061128	VARD - 20070118	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain 	5299-5237	10%	DDD of the Cervical Spine 	5242	10%	20061227	
Ankle Instability	Not Unfitting	Left Ankle Disorder	5270-5024	10%	20061227	
		Right Ankle Disorder	5270-5024	10%	20061227	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck condition began in early 2005 without specific injury, but was aggravated while deployed in November 2005 with wear of body armor and Kevlar.  Radiographic studies showed multi-level degenerative disc disease (DDD) with moderate central canal narrowing and bilateral neuroforaminal compromise at C5-6 and an old compression fracture at C7 with approximately 20% loss of vertebral height.  The CI was medically evacuated for further treatment.  Neurosurgical evaluation after his return noted that the C7 compression fracture was a childhood injury.  The CI reported improvement in his neck and arm symptoms following return from deployment.  Physical examination showed no tenderness or spasm.  Upper extremity reflexes were “questionably less active” on the right than the left.  Limitation of neck range of motion (ROM) was “minimal” with rotation, mainly to the right.  There was “very slight” decreased sensation to pinprick in the right thumb and index finger.  Strength was normal throughout.  Electrodiagnostic studies in April 2006 showed “possible right cervical nerve root irritation” but the exact level of a lesion could not be determined.  Surgery was not recommended. 

A physical medicine examination on 3 August 2006 showed a normal gait and posture.  There was limited cervical spine ROM in all planes.  There was tenderness to myofascial palpation over an upper arm muscle that produced radiating pain into the CI’s hand, but upper extremity strength and sensation were normal.  Electrodiagnostic studies showed no evidence of radiculopathy and the CI was not considered a surgical candidate.  

During the 22 September 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the CI reported constant neck pain and tingling in his hands with certain neck positions.  Physical examination showed limited neck extension, lateral flexion and rotation with painful motion.  The 25 September 2006 physical therapy (PT) ROM examination for the MEB showed, after three repetitions, flexion of 20 degrees (normal 45) and combined ROM of 185 degrees (normal 340) with pain limiting motion in all planes.  The 29 September 2006 MEB NARSUM examination, 4 months prior to separation, noted complaints of constant neck pain with radiating pain to the right shoulder region.  The pain was worsened by wearing body armor and Kevlar or certain positions.  Physical examination showed tenderness and muscle spasm.  Left lateral flexion and rotation were decreased, but strength and reflexes of the upper extremities were normal.  

At the 27 December 2006 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported neck pain, weakness, stiffness, fatigue and lack of endurance.  There had been no incapacitating episodes in the past 12 months.  Although he reported numbness of his fingers while on the computer, it resolved promptly with movement.  Physical examination showed normal posture and gait, but there was tenderness.  Cervical flexion and combined ROM were normal, and there was no loss of ROM with repetition, but painful motion was noted.  The neurological examination of the upper extremities was normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing ROM limited by pain with localized tenderness.  The VA rated the neck condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour

Although the MEB NARSUM ROM measurements supported a 20% rating, the pre-separation VA C&P examination was closer to separation and only supported a 10% rating.  Therefore, panel members afforded greater probative value to the VA C&P examination.  The panel agreed that a 10% rating, but no higher, was justified for tenderness and painful motion.  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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the neck condition.  

Contended PEB Condition:  Ankle Instability.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  Notes in the STR and MEB NARSUM indicate the CI had a history of recurrent bilateral ankle sprains with residual instability of each ankle.  Treatment notes in March 2006 indicated the CI’s left lower extremity was injured by an IED explosion and he sustained a left ankle sprain with significant swelling due to this incident.  At a primary care visit on 19 June 2006 the CI reported bilateral ankle pain.  Physical examination showed both ankles were subluxed (partially dislocated joint) and testing for instability was positive bilaterally.  Imaging of the right and left ankles was performed in June 2006 to evaluate chronic instability and showed chronic tears and degenerative changes consistent with chronic ankle sprain injury bilaterally.  At primary care and physical therapy treatment visits between July 2006 and November 2006, the CI reported bilateral ankle instability with recurrent inversion of his ankles and constant pain aggravated by activity, which was improved but not alleviated by treatment.  

The MEB NARSUM listed functional limitations due in part to the bilateral ankles while noting the CI was “unable to run or climb stairs.”  The commander’s statement noted the CI was unable to run and this contributed to his inability to meet his job requirements as an Armor Officer.  The permanent profile (L2) listed bilateral ankle instability and indicated the CI was unable to run in formation or repetitively jump, but could run at his own pace and distance.  The profile also listed lifting or carrying a maximum weight of 20 pounds, standing for no more than 20 minutes at a time, no impact activities, and no marching with standard field gear.  The panel thought it was reasonable to assume that the bilateral ankle condition contributed to certain profile limitations such as limited standing and no running, marching or jumping.  The panel concluded that despite a lower extremity “2” profile, which reflects a condition that requires some physical limitations which are not in all cases disqualifying for continued military service, there was a preponderance of evidence that the bilateral ankle condition was unfitting for continued service as an Armor officer at separation, based on profile limitations and performance based evidence cited by both the commander and the NARSUM.  The panel next considered if the right and left ankle conditions were unfitting, also based on a preponderance of the evidence.  In this case, both ankles were implicated by the NARSUM and the commander’s statement and both were profiled.  Treatment notes addressed both the right and left ankles and the CI reported the same clinical symptoms for each ankle.  Ankle pain was also objectively supported by physical findings on examination of instability and imaging findings of chronic sprain injuries for each ankle.  The panel concluded there was a preponderance of evidence that both the left and right ankle conditions were separately unfitting.  During the MEB examination, the CI reported both ankles were injured in an IED blast.  He reported trouble running and standing for long periods of time.  Physical examination showed painful motion of both ankles, but no tenderness, swelling or limitation of motion.  

At the C&P examination, the CI reported pain, weakness, stiffness, fatigue and lack of endurance of the bilateral ankles, but noted the ankle symptoms had improved with physical therapy.  Physical examination showed a normal gait and no swelling or deformity of either ankle.  However, there was tenderness of the anterior ankles bilaterally.  Bilateral ankle ROM was dorsiflexion of 20 degrees (normal) and plantar flexion of 45 degrees (normal) with painful motion.  There was no additional loss of ROM after repetitive motion.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the bilateral ankle condition as not unfitting.  The VA rated each ankle 10%, both dual coded 5271-5024 (limitation of ankle motion due to tenosynovitis), based on the C&P examination, citing painful or limited motion of a major joint.  There was evidence of painful motion of each ankle at both the MEB and C&P examinations supporting a 10% rating (based on §4.59, §4.40 and §4.45), analogously coded 5299-5271.  The panel considered alternative VASRD ankle and analogous codes for each ankle, but all were less applicable and/or not advantageous to rating.  After due deliberation, the panel agreed the preponderance of evidence with regard to the functional impairment of the right and left ankle conditions favors the recommendation of each condition as an additionally unfitting condition for disability rating.  The right and left ankles are both appropriately coded 5299-5271 and meet the VASRD §4.71a criteria for a 10% rating each.  

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 contended left and right ankle conditions, the panel agrees they were unfitting and recommends disability ratings as follows: an unfitting right ankle condition and an unfitting left ankle condition, each rated 10%, both coded 5299-5271 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	
Chronic Neck Pain 	5299-5237	10%	
Right Ankle Instability	5299-5271	10%	
Left Ankle Instability	5299-5271	10%	
COMBINED	30%	

AR20190006184, 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 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 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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