RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-02273
BRANCH OF SERVICE:  Army	BOARD DATE:  20141014
SEPARATION DATE:  20050111

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Army PFC/E-3 (11B10/Infantryman) medically separated for chronic neck and right upper extremity (RUE) pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “cervicalgia with radiculopathy,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic neck pain and shoulder pain with right arm numbness, tingling ...” as unfitting, rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy and the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have always thought my origional rating was too low I was pushed through Med Discharge.  I am still having a lot of troble with these medical issues.”

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 (with subsumed RUE radiculopathy) condition(s) is addressed below; 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 Board of Corrections of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20041027 | VA - Based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Neck and Shoulder Pain with Right Arm Numbness | 5237 -8716 | 10% | Cervical Disc Herniation at C5-C6 with RUE Radiculopathy | 5342-8716 | 10% | STR
Other x 0  (Not in Scope) | Other x 3 | STR
Combined:  10% | Combined:  10%
Derived from VA Rating Decision (VARD) dated 20050506 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The PEB combined a cervical spine (subsuming shoulder pain) condition with associated RUE radiculopathy under a single disability rating, rated analogously to a peripheral neuralgia.  The VASRD §4.71a, General Rating Formula for the Spine (Note 1) specifies that “any associated objective neurological abnormalities ... [be evaluated] ... separately, under an appropriate diagnostic code.”  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for the cervical (subsumed right shoulder) and RUE neuropathy conditions are presented separately with attendant recommendations regarding a separate unfitness determination and rating, if indicated.

Cervical Spine with Subsumed Right Shoulder Condition:  Although the source records are not in evidence, the narrative summary (NARSUM) confirmed the onset of symptoms (neck and right [dominant] shoulder pain) in November 2003 while deployed to Afghanistan as a result of a fall during operations.  All clinical entries in the STR treat the complaint of shoulder pain as a component of radicular pain and there is no evidence suggestive of distinct shoulder joint pathology.  Magnetic resonance imaging (MRI) revealed cervical disc disease (small protrusions at C5/6 and C6/7 with slight foraminal narrowing.  The CI was medically evacuated to CONUS, and the first STR entry after arrival was from early April 2004.  This documented ongoing and worsening neck pain.  A repeat MRI (6 months prior to separation) noted persistent disc disease with similar findings to those from the earlier one, additionally noting “loss of the normal cervical lordosis with straightening suggesting muscular spasm.”  There were no STR entries which comment on the presence (or absence) of cervical spasm or tenderness, and none which comment on gross cervical range-of-motion (ROM) limitations except as below.  Surgical options were discussed and deferred.  Symptoms did not adequately respond to physical therapy (PT) and conservative measures.  In June 2004 a MEB was initiated.  Cervical ROM measurements for the MEB were provided by PT (3 months prior to separation) and document flexion to 70 degrees (normal 45 degrees) and combined ROM of 285 degrees (normal 340 degrees).

The NARSUM physical examination noted paracervical tenderness without comment on spasm, “decreased” ROM, but did not detail a neurological exam, which was entered as grossly normal.  The documented physical limitations were confined to profile restrictions and load bearing (20 pound lifting limit).  The CI failed to show for an initially scheduled VA Compensation and Pension (C&P) and there was no temporally probative post-separation VA or other evidence.  His first C&P evaluation addressing the cervical spine and radiculopathy issues was from 21 June 2007 (2+ years after separation).  It documented continued symptoms and satisfactory employment, cervical flexion of 40 degrees with combined ROM of 290 degrees.  Based on that examination the VA conferred a separate 10% rating (retroactive to separation) for the cervical spine (5242, degenerative arthritis of the spine).

The Board directs attention to its recommendations based on the above evidence.  The Board first considered if the cervical spine condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting as established above.  Members agreed that the functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to perform his MOS; and, accordingly a separate rating is recommended.  With regards to rating the cervical spine condition, a 10% rating is compliant with §4.71a criteria for the ROM evidence before the PEB.  Members shared concerns regarding the accuracy of the recorded flexion of 70 degrees in the PT entry (also cited in the PEB’s DA Form 199); given, that it is twice the normal value (anatomically suspect) and does not correlate with the grossly decreased ROM observed by the MEB examiner.  In the absence of any temporally probative corroborative measurements, however, no probative assumption can be made without undue speculation.  There is no ROM evidence which would reasonably support the §4.71a ROM thresholds for a 20% rating (30 degrees flexion, 170 degrees combined).  Members noted the imaging findings cited above which arguably support the §4.71a criterion of abnormal contour for a 20% rating; but, in the absence of corroborating physical exam evidence to satisfy the “muscle spasm or guarding severe enough to result in ... abnormal spinal contour” specification for that criterion, members agreed that there was inadequate justification for its application in this case.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends the cervical spine condition as separately unfitting; and, recommends a rating of 10% under code 5242 (degenerative spine disease).
  
Right Upper Extremity (RUE) Radiculopathy.  The evidence clearly establishes that a RUE radiculopathy (C6-7) resulted from the cervical disc disease elaborated above.  There are separate entries from Landstuhl in March 2004 (one with detailed neurological findings by a neurosurgeon) that documented slightly decreased RUE strength (4/5 in several groups) and decreased hand sensation (ulnar, C8 dermatome).  One examiner questioned whether the disc disease (exacerbated by combat load bearing) “explains the intermittent loss of RUE function.”  In CONUS the first STR in April 2004 documented RUE radiation and sensory symptoms; and, a detailed neurological exam noted continued mild RUE motor deficits (4/5 strength in all groups and 3/5 in hand muscles).  A neurosurgical entry 6 weeks later documented 4+/5 strength in some RUE groups and 5/5 in the remaining, without sensory deficits.  

The NARSUM (supplemented by the MEB history and physical performed the same day) was prepared 6 months pre-separation, and documented that the CI “does well with that [Tylenol] as long as he limits his activity level ... [but does have] ... recurrence of his symptoms frequently to include the radiculopathy with pain, numbness, tingling of the right neck, shoulder and all the way down to the distal fourth and fifth digit.”  There was also subjective “decreased strength in [his] hand and arm.”  The commander’s statement did not provide details probative to the fitness implications of the radiculopathy distinct from those of the cervical limitations. The CI’s first C&P evaluation addressing the radiculopathy issue was from 21 June 2007 (2+ years post-separation).  It documented 5/5 motor strength in all RUE groups except 4/5 for elbow flexion with some persistent fine sensory deficits.   Based on that examination the VA conferred a 10% rating (retroactive to separation) for the RUE radiculopathy (8716, ulnar nerve neuralgia). 

The Board directs attention to its recommendations based on the above evidence; and, as with the cervical spine condition, must consider if the radiculopathy is reasonably justified as separately unfitting when de-coupled from the combined PEB adjudication.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a; was thus subsumed in the Board’s rating recommendation for the cervical spine condition and, consequently cannot be weighed as a separate factor for the fitness recommendation.  The Board carefully considered the functional impact of both the sensory and motor deficits (of the dominant extremity) on the demands of the infantry MOS.  Specifically considered was whether the hand sensory deficit would significantly impinge on weapon deployment; but, members agreed that the mild ulnar deficit (uninvolved with trigger pull or other fine functions) would be a neglible issue in that regard.  The RUE motor deficits were not severe and were improving over time as evidenced over the course of service examinations, and corroborated by the delayed VA evidence.  Members considered the various MOS physical demands; and, after considerable deliberation, agreed that there were no strength requirements which were incompatible with the mild deficits in evidence; and, therefore concluded that the radiculopathy was not reasonably justified as separately unfitting.  Accordingly no additional disability rating can be recommended for it.

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.  As noted above, PEB application of the USAPDA pain policy for rating was operant in this case and the case was adjudicated independently of that policy by the Board.  In the matter of the Service-combined cervical spine and RUE radiculopathy conditions, the Board makes the following recommendations:  an unfitting cervical spine condition coded 5242 and rated 10%; and, a determination that the RUE radiculopathy was not reasonably justified as separately unfitting and not subject to disability rating.  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:

CONDITION | VASRD CODE | RATING
Cervical Degenerative Spine and Disc Disease | 5242 | 10%
Cervical Radiculopathy, Right Upper Extremity | Not Unfitting
COMBINED | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131105, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXX, AR20150006479 (PD201302273)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-02273