RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02944
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141218
SEPARATION DATE:  20040924

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aviation Electrician) medically separated for intractable neck pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The intractable neck pain and “History of C6-7 Formaniolaminotomy w/resolution of Rt C7 Radiculopathy” were the only conditions forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated intractable neck pain as unfitting, rated 20%, with application of the VA Schedule for Rating Disabilities (VASRD) and adjudicated the history of C-7 formaniolaminotomy w/resolution of right C7 radiculopathy as a Category II diagnosis, one that contributes to the unfitting condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes:  “Issue is permanent and resulted in increased and chronic pain, as well as resulted in additional conditions.  Part of my diagnosis is an abnormal curvature of the spine which was exacerbated by a service-connected injury.  The service-connected injury resulted in surgery I was ordered to have, but may not have been necessary (as per the civilian neuro-surgeon), but again I was ordered and I followed my orders.  Additional conditions include; a) addiction to my prescribed pain medication.  Treatment for substance abuse disorder is not covered under my rating and is still deducted from my rated compensation.  b) Major Depression Disorder, treatment not covered by disability rating.  c) Anxiety disorder.  The pain and loss of mobility combined with these additional conditions have a major and negative impact on my life and ability to maintain self-sufficiency.  My education and employment history is erratic and full of gaps where I was unable to control the symptoms of these conditions and lead to withdraw from school or lose my employment.  I struggled for five years with VA healthcare, learning coping strategies and tools to manage these conditions both physical and mental/emotional.  I continue to struggle on a daily basis and utilize my support system, but treatment can only do so much.  Please consider all conditions.”  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 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:

Service IPEB – Dated 20040701 | VA - (The Same Mos.  As Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam

Intractable Neck Pain

5243

20%

Cervical Spine Status Post HNPC VI-VII With Surgical
Laminoforaminotomy With Chronic Neck Pain And
Degenerative Joint Disease Cervical Spine (Claimed As
Cervical Spine Condition)

5242

10%

20040901

History Of C6-7 Formaniolaminotomy With Resolution Of Right C7 Radiculopathy | Category 2 | | | |
Other x 0  (Not in Scope) | Other x 1 | 20040901
Combined:  20% | Combined:  20%
Derived from VA Rating Decision (VARD) dated 20041014 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Intractable Neck Pain:  The CI experienced the gradual onset of neck and right upper extremity pain in 2001 or 2002, not associated with a history of trauma.  After progression of neurologic symptoms to include mild muscle weakness in the right upper extremity, evaluation led to a diagnosis of right radiculopathy due to cervical degenerative disc disease.  Surgery for a herniated C6-7 disc was performed in May 2003 and resulted in resolution of right upper extremity neurologic symptoms.  He experienced progressively worsening neck pain, which did not sufficiently respond to medication, injections, physical therapy or manipulation.  Imaging studies in April 2004 showed disc disease at C5-6 and no spinal or foraminal narrowing.  Ongoing neck and shoulder pain was determined by the neurosurgeon to be musculoskeletal in origin (i.e. not neurogenic).

At the narrative summary (NARSUM) on 2 June 2004 (4 months prior to separation) the CI reported that his right arm pain had completely resolved after surgery, but he still had severe neck pain.  The CI recently (“this weekend”) suffered a severe exacerbation requiring treatment in the emergency room.  Physical exam showed normal upper extremity strength.  Range-of-motion (ROM) showed flexion of “approximately 10 degrees” (normal 45 degrees) and extension of 5 degrees (normal 45 degrees).  Rotation to the right was “nearly full” but to the left was “approximately 20 degrees” (normal 80 degrees).  Lateral flexion was not mentioned, and the exam was silent regarding gait, spinal contour or muscle spasm.  The MEB exam on 8 June 2004 showed no tenderness, but unmeasured ROM was “decreased in flexion/extension.”

At the VA Compensation and Pension (C&P) exam on 1 September 2004, 3 weeks prior to separation, the CI reported accomplishing all activities of daily living, including unrestricted driving and engaged in child care, mowing the lawn, walking and fishing.  He could not run or participate in sports activities.  He experienced flare-ups of neck pain for several days to a week at a time, and occurred 2-3 times per month.  He used narcotic medication for pain.  He denied radiating pain to the extremity or muscle weakness.  Exam showed a normal gait and slight decrease in cervical lordosis, but muscle spasm was not mentioned.  ROM testing showed flexion of 45 degrees and combined ROM of 310 degrees (normal 340 degrees).  Repetitive motion did not result in additional limitation of motion.  Tenderness and painful motion were present.  Upper extremity muscle strength and sensation was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under an analogous 5243 code (intervertebral disc syndrome) and properly subsumed the history of surgery and resolution of radiculopathy under this rating.  The VA assigned a 10% rating under the 5242 code (degenerative arthritis of the spine).  In assigning probative value to the exams in evidence, it was noted that the NARSUM exam did not use a goniometer to measure ROM and did not report ROM in all planes.  Because the C&P exam was goniometric, measured ROM in all planes and was closer to the time of separation, it was assigned higher probative value in the Board’s deliberations.  It was agreed that this exam did not provide support for the next higher 30% rating, which requires forward flexion of 15 degrees or less, or favorable ankylosis of the entire cervical spine.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet a minimal rating under that formula.  The Board finally deliberated if additional disability was justified for the history of right upper extremity radiculopathy.  Prior to surgery, radiculopathy was present.  However, right upper extremity symptoms resolved post-operatively and examinations recorded normal muscle strength.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  The Board therefore concludes that additional disability was not justified on this basis.  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 a change in the PEB adjudication for the intractable neck pain 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.  In the matter of the intractable neck pain condition and IAW VASRD §4.71a, 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, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140617, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
Ref:	(a) DoDI 6040.44
(b) CORB ltr dtd 25 Jun 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual's records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy' s Physical Evaluation Board:

-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX , former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)

PD-2014-02944