RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02430
BRANCH OF SERVICE:  Army	BOARD DATE:  20150217
SEPARATION DATE:  20051208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Combat Engineer) medically separated for neck pain.  The neck condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3U3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “axial neck pain status post C5-6 anterior cervical discectomy and fusion (ACDF)” to the Physical Evaluation Board (PEB) IAW AR 40-501 as not meeting retention standards.  The MEB also identified and forwarded one other medically unacceptable condition (obstructive sleep apnea [OSA]).  The Informal PEB adjudicated “chronic neck pain status post C5-6 ACDF without neurologic abnormality” as unfitting, rated 0%, with likely application of the AR 635-40.  The OSA was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “The medical evaluation board only separated me for one of my service connected injuries (neck).  They wouldn’t consider my left knee or sever [sic] sleep apnea, which both came about during my enlistments.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’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/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board 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, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20050930	VA* - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain …	5241	0%	Status Post C5-6 ACDF…	5010-5242	10%	20060330	
OSA	Not Unfitting	OSA	6847	50%	20060420	
Other x 0 (Not In Scope)	Other x 6	
RATING:  0%	COMBINED RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20060517 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:

Neck Condition.  The record shows that the CI was initially evaluated on 3 April 2001 for a 1-year history of neck pain without a history of trauma.  X-rays that day were normal, but a magnetic resonance imaging on 11 May 2001 showed a small left sided bulge in the C5-6 cervical disc, which moderately compromised the left nerve root outlet (foramen).  He was treated with medications, duty limitations, and physical therapy (PT), but his pain persisted.  Repeat X-rays on 22 October 2002 showed early changes of degenerative joint disease.  A repeat MRI on 9 December 2002 showed some progression of the disc disease at C5-6 with multi-level degenerative disc disease.  The CI was then treated with surgery on 16 October 2003 with an ACDF at C5-6 (the diseased disc material is removed and the vertebrae above and below the disc are fused together with a bone graft from the pelvis).  His post-operative course was unremarkable and his pain improved.  However, he was unable to wear a Kevlar and was referred into the Disability Evaluation System process.  The narrative summary dated 26 May 2005, 6 months prior to separation and 19 months after the surgery noted decreased range-of-motion (ROM) of the neck with a normal neurological examination.  The fusion was noted to be well-healed on X-ray and the scar was also well-healed to inspection.  The ROM was measured in PT a week later and is charted below.  A combination of goniometric and bubble inclinometer measurements were obtained.  The ROM was limited by pain.  The MEB examination (form 2808) on 1 June 2005 noted limitation in extension and lateral rotation, but did not specify the degree.  No comment was made on flexion or side bending, implying normal or near normal function.  At the VA Compensation and Pension (C&P) examination performed on 30 March 2006, 4 months after separation, the CI reported persistent pain since the surgery, but that the previous radicular symptoms were improved.  The ROM was again limited by pain, but not further limited with repetition.  Spasm was absent.  The neurological examination was normal.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Cervical ROM
(Degrees)	MEB/ PT ~6 Mo. Pre-Sep	VA C&P ~4 Mo. Post-Sep	
Flex (45 Normal)	20	45	
Combined (340)	120	220	
Comment	Limited by pain.  Inclinometer and goniometer used	Limited by pain.  	
§4.71a Rating	20%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the neck at 0% using the code 5241 (spinal fusion).  The VA rated the neck at 10% using the codes 5010 (traumatic arthritis), and 5242 (degenerative arthritis of the spine).  The Board considered the evidence.  It noted that while the VA examination was closer to the DOS, both were proximate to separation.  The MEB examination supported a higher level of disability based on the ROM, but the measurements were accomplished with both an inclinometer and goniometer reducing the probative value compared to the VA C&P measurements.  Also, the latter is more consistent with the MEB DD Form 2808 comments.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the neck condition using the code 5241.  The evidence did not support the presence of an unfitting radiculopathy at separation and the Board concluded, therefore, that this condition could not be recommended for additional disability rating.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended not unfitting OSA condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The fitness determination was subject to DoDI 1332.38 (E3.P3.3.3 - Adequate performance until referral).  This stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  The OSA condition was diagnosed 3 years prior to separation, but was not treated until the CI was in the MEB process.  Despite this, he continued to perform adequately and was recommended for promotion on the three fitness reports completed after the diagnosis was made; one of these recommended promotion ahead of his peers.  The OSA was profiled, but not implicated in the commander’s statement.  The condition does not meet retention standards, but individuals who are satisfactorily treated are routinely retained (fit) on duty.  The OSA condition was reviewed and considered by the Board.  There was no performance based evidence from the record that it significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended OSA condition and so no additional disability rating is recommended.

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.  In the matter of the neck condition, the Board unanimously recommends a disability rating of 10%, coded 5241 IAW VASRD §4.71a.  In the matter of the OSA condition and IAW VASRD §4.100, the Board unanimously recommends no change in the PEB adjudication.  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	
Chronic Neck Pain… 	5241	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131029, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150010426 (PD201302430)

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 rating to 10% without 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			     XXXXXXXXXXXXXXX
				     Deputy Assistant Secretary of the Army
				         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA