RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02763
BRANCH OF SERVICE:  Army	BOARD DATE:  20150616
Separation Date:  20050508

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Infantryman) medically separated for neck pain.  The neck 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).  “C5-C6 disc protrusion with thecal sac impingement and chronic pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “neck pain…with chronic C6 radiculopathy…” as unfitting, rated 20% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.  

CI CONTENTION:  He was given a higher rating for his condition(s) by the VA and his condition(s) continue to worsen and negatively impact his daily activities.  His complete submission is at Exhibit A.

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 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:  

Service IPEB – Dated 20050201 | VA - (3 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Neck Pain…With Chronic C6 Radiculopathy… | 8512 | 20% | Cervical Spine Straightening (Neck Condition) | 5299-5243 | 20%* | 20050218
| | | C6 Radiculopathy (right) | 8510 | 0%** | 20050218
Other MEB/PEB Conditions x 0 (Not in Scope) | Other x 5
Combined:  20% | Combined:  30%
Derived from VA Rating Decision (VARD) dated 20050425 (most proximate to date of separation [DOS]).    ** VARD 20060713 increased rating to 20% effective 20060216 based on 20060608 exam. *VARD 20071119 increased rating to 30% effective 20060216 based on 20071119 exam.

ANALYSIS SUMMARY:  

Neck Pain.  The CI injured his neck and right arm during a HUMVEE rollover accident in October 2000.  At the time of the accident, he had posterior neck paraspinal muscle pain and mild right wrist tenderness.  A cervical spine X-ray done at the time of the accident was normal.   The records were silent for neck and right arm pain until a neurology evaluation dated 19 December 2003 in which the examiner documented a 3-year history of intermittent right hand numbness, neck pain and stiffness, and “uncontrollable shaking” of the hands.  The physical examination demonstrated bilateral decreased neck rotation with neurologic findings.   A cervical spine magnetic resonance imaging (MRI) performed in June 2004 showed C5-C6 central disc protrusion that caused spinal canal narrowing.  In July 2004, the CI was evaluated for persistent neck pain and right upper extremity (RUE) weakness, numbness and tingling sensation.  He reported frequent dropping of items with his right hand.  The examiner noted that RUE weakness was observed in physical therapy.  The physical examination noted limitation of flexion and extension of the cervical spine with diffuse tenderness on palpation.  There was slightly decreased hand and elbow flexor muscle strength, absent right upper extremity reflexes, and impaired light touch sensation.  At the MEB narrative summary (NARSUM) examination performed approximately 8 months prior to separation, the CI reported persistent neck pain and progressively increasing right upper extremity symptoms.  The examiner noted that the neurologist opined that his functional ability was severely limited. The MEB NARSUM physical exam findings are summarized in the chart below.  The MEB DD 2808, Report of Medical Examination, dated 15 October 2004 documented neck tenderness along the midline posteriorly from the base of the head to the lower base of the neck, marked decrease in flexion, hyperextension and lateral movement associated with pain, RUE weakness 3/5 with sensation intact.  The nerve conduction study (NCS)/electromyelogram (EMG) completed on 13 January 2005 demonstrated a chronic C6 radiculopathy on the right upper extremity.  

The VA Compensation and Pension (C&P) examination performed approximately 3 months prior to separation documented that the CI reported crushing, squeezing, sharp, sticking neck pain; rated at 9/10. The CI reported that the pain radiated up to his head and down his back, but did not cause any incapacitation.  The pain was made worse by activity and somewhat relieved by narcotic medication.  The examiner listed that the functional impairment was an inability to lift weights or run due to the pain.  The CI also reported numbness in the RUE that was intermittent as often as five times weekly and lasted 3 hours.  During flare-ups, he could not use his right arm due to the numbness.  A C-spine X-ray showed some straightening of the cervical spine.  The VA C&P physical examination findings are summarized in the chart below.  
The ROM evaluations in evidence with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation, are summarized in the chart below.  

Cervical ROM
(Degrees)

PT ~8 Mo. Pre-Sep

MEB~8 Mo. Pre-Sep

VA C&P ~3 Mo. Pre-Sep

Flex (45 Normal) | 20/20/20 | ROM’s from PT exam | 45
Extension (45) | 20/20/20 | | 45
R Lat Flexion (45) | 40/40/40 | | 30
L Lat Flexion (45) | 40/40/40 | | 30
R Rotation (80) | 40/40/40 | | 60
L Rotation (80) | 40/40/40 | | 50
Combined (340) | 200 | | 260

Comment
Right hand dominant

ROM limited by pain

Limited flexion, extension; diffuse tenderness to palpation (TTP) along C-spine; muscle strength in ring finger abductor muscle 4/5; flexor, extensor finger flexor, right elbow flexor muscles 4/5; light touch sensation impaired RUE; reflexes absent on RUE

TTP; ROM additionally limited after repetitive use by pain; RUE 1+ reflexes; motor nml
The CI is right hand dominant.
C-spine X-ray some straightening of cervical spine

§4.71a Rating | 20% | 20% | 20%
The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the neck condition and right upper extremity radiculopathy conditions under a single disability rating with a disability rating of 20%; coded 8512 (paralysis of - lower radicular group-Incomplete-Mild).  The VA separately rated the neck condition and right upper extremity radiculopathy conditions.  The VA coded the neck condition (cervical spine straightening) 5099- 5243 (analogous to intervertebral disc syndrome), rated 20%.  The C-6 radiculopathy condition was coded 8510 (Paralysis of - Upper Radicular Group), rated 0%.  IAW DoDI 6040.44, if the PEB combined adjudication is not compliant with the VASRD 4.71a rating criteria, each condition subsumed under the single disability rating must be reasonably justified as separately unfitting in order to remain eligible for rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. The Board noted that medical specialists and the VA examiner documented functional impairment associated with both the neck pain and right upper extremity radiculopathy.  Spinal cord stenosis was profiled and the commander implicated both the neck and right upper extremity radiculopathy conditions in the recommendation for release from duty.  Members agreed that based on the clinical evidence and fitness performance criteria, the neck and right upper extremity conditions could be reasonably justified as separately unfitting.  

The Board then considered its rating recommendation for each condition.  The neurologist documented neck pain and stiffness with decreased cervical spine ROM.  A cervical spine MRI done in June 2004 showed C5-C6 central disc protrusion that caused spinal canal narrowing.  The DD 2808 documented neck tenderness along the midline of the spine form the base of the back of the neck to the lower base of the neck, and marked decrease in flexion, hyperextension and lateral movement associated with pain.  The PT performed cervical spine ROM’s for the MEB which demonstrated flexion limited to 20 degrees with ROM limited by pain.  The VA examiner documented cervical spine tenderness, normal flexion of 45 degrees; however, ROM was additionally limited by pain.  A cervical spine X-ray done at this exam demonstrated some straightening of cervical spine.  The Board agreed that, the CI met the 20% rating criteria for both “forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees” and “abnormal spinal contour” without mention of spams.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board by majority vote recommends a disability rating of 20% for the cervical spine abnormality condition coded 5299-5243.  

Right Upper Extremity.  The neurologist and the MEB examiner documented right upper extremity weakness with sensory deficits.  The MEB examiner documented that the right upper extremity became progressively worse along with pain and decreased strength 4/5.  A NCS/EMG demonstrated a chronic C6 radiculopathy on the right upper extremity.  The VA C&P examination while closer to separation did not include a comprehensive neurological exam of the right upper extremity and only documented that the RUE reflexes were reduced to +1 with  normal being +2.  There was no motor exam done at this time.  Board members agreed that VASRD code 8512 most closely approximates the CI’s functional deficits.  The Board agreed that the muscles strength of 4/5 and EMG evidence of mild abnormality met the criteria for a 20% rating (mild incomplete paralysis).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a disability rating of 20% for the right upper extremity radiculopathy condition.  

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 neck pain with C-6 radiculopathy and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the cervical spine abnormality, the Board by a majority vote recommends a disability rating of 20%, coded 5099-5243 IAW VASRD §4.71a.  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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

UNFITTING CONDITION | VASRD CODE | RATING
Neck Pain-C6 Radiculopathy | 8512 | 20%
Cervical Spine Abnormality | 5099-5243 | 20%
COMBINED | 40%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131218, 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, AR20150012839 (PD201302763)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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

PD-2013-02763