RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201490 SEPARATION DATE: 20030520 BOARD DATE: 20130404 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (19K34/M1 Armor Crewman) medically separated for a cervical spine condition. He experienced an acute onset of neck pain doing sit- ups in 2000; which persisted, and was diagnosed as degenerative disc disease (DDD) without surgical indications. The condition did not respond adequately to conservative therapy to meet the physical requirements of his Military Occupational Specialty (MOS); and, he was issued a permanent P3 profile and referred to a MOS/Medical Retention Board (MMRB). The MMRB, however, recommended a Medical Evaluation Board (MEB). The MEB forwarded cervical DDD (as the sole condition) to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB adjudicated the condition as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI withdrew an initial appeal for a formal PEB, and was medically separated with a 10% disability rating. CI CONTENTION: “I believe my original MMRB was not fully aware of the pain my injury was causing me on a daily basis. I was not able to sleep due to the pain. I was unable to wear a Kevlar and I was severely depressed because of all the pain I was having. The military gave me only one MRI (magnetic resonance image), so the board had nothing to compare my injury to. I was also told by the lady handling my MRB that the military does not have a rating for my neck injury and therefore I would be rated according to the lowest lower back injury rating. I just feel the whole process was rushed because they thought I was trying to get out of the military so I wouldn't have to go to war, but I tried to appeal the rating and even had the post CSM write a letter for me on my behalf so I could stay in the military. I had 14 years of my life invested in protecting my country. I wanted to retire from the military that was my dream. I also believe I received a lower rating because I have spoken to veterans who were discharged with the same injury as I was and they received a higher rating than me and one veteran was getting MRI's every 6 months while he was in the military and I only received one. It has taken me over 9 years to get another MRI from the VA I even paid for a bone scan myself, so VA could see the extent of my injury.” SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting cervical condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records (ABCMR). RATING COMPARISON: Service IPEB – Dated 20021231 VA (3 Mos. Post-Separation) Condition Code Rating Condition Code Rating Exam Chronic Neck Pain 2° to DDD 5299-5295 10% DDD, Cervical Spine 5242-5020 10% 20030829 Combined: 10% Combined: 10% Derived from VA Rating Decision (VARD) dated 20031022 (most proximate to date of separation (DOS)) ANALYSIS SUMMARY: The Board acknowledges the CI’s assertions that his disability disposition was rushed and unfair, and that he was inadequately evaluated. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the ABCMR and/or the United States judiciary system. Neck Condition. The record reflects persistent neck pain with repeated clinic visits following onset. The CI was managed with medication and physical therapy; and, remained on temporary profiles from 2000 until permanently profiled pre-separation. Multiple outpatient notes document grossly normal range-of-motion (ROM) and normal neurologic findings. Magnetic resonance imaging of November 2001 revealed DDD at C3/4 and C4/5, without neural involvement. A follow-up orthopedic consultant opined that surgery was not indicated, and recommended the MMRB (outcome as per summary section). The narrative summary (NARSUM), after referencing the initial onset with sit-ups in July 2000, documented, “he states that ever since then he has had constant dull pain in his neck that will occasionally become sharp. The pain is non-radiating. It increases with sit-ups, wearing his Kevlar, and impact exercises.” The physical exam made no mention of tenderness, spasm, or contour abnormality; and, reported the absence of neurological symptoms (detailed normal neurological exam by MEB orthopedic consultant). The ROM measurements recorded in the NARSUM were flexion 50 degrees (normal 45 degrees), extension 28 degrees (normal 45 degrees), right lateral flexion of 33 degrees (normal 45 degrees), and left lateral flexion of 28 degrees. At the VA Compensation and Pension (C&P) evaluation (3 months post-separation), the examiner noted “dull pain all the time on the right side of the neck ... same as when he was in the service;” rated 4/10, with exacerbations to 7-8/10 precipitated by “just turning the head too quickly.” The VA physical exam stated, “There was no objective evidence of painful motion, spasms, weakness, or tenderness.” It recorded “full” ROM of the spine, and normal neurologic findings. The Board directs attention to its rating recommendation based on the above evidence; noting that the CI was separated just after a significant change in VASRD codes and criteria for the spine. The older codes and criteria were applied to rating by the PEB, and the current codes and criteria were in effect for the VA ratings. IAW DoDI 6040.44, the Board’s recommendation must be premised on the VASRD in effect; although, the evidence of course remains probative to the Board’s recommendation under the applicable VASRD criteria. The PEB’s 10% rating with analogous application of the prior code 5295 for lumbosacral strain could be questioned (as per comments in the application); although, no available code under the VASRD applied by the PEB would have achieved a higher rating. The VA’s 10% rating under the applicable VASRD was not rigorously supported, since the C&P evidence would not have provided a basis for a compensable rating. It is assumed (not clarified in the rating decision) that the compensable rating was achieved via VASRD §4.40 (functional loss). Members agreed, however, that the ROM evidence from the NARSUM would support a 10% rating under the applicable criteria; since, the limitations of extension and lateral flexion would provide for a 10% rating based on combined ROM criteria. There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes in this case which would provide for additional or higher rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend an increase in the PEB’s rating of the cervical spine condition; although, as above, the Board is obligated to apply coding and rating criteria from the effective VASRD. The action officer recommended, and the Board concurred with, the code 5242 (degenerative arthritis of the spine) for its clinical specificity. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the cervical spine condition and IAW VASRD §4.71a criteria in effect at separation, the Board unanimously recommends a disability rating of 10%, coded 5242. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Degenerative Disc Disease, Cervical Spine 5242 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20121019, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxx, DAF Director of Operations Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130009626 (PD201201490) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability description without modification of the combined rating or recharacterization of the individual’s separation. This decision is final. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)