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AF | PDBR | CY2011 | PD2011 00806
Original file (PD2011 00806.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XX         CASE: PD1100806        
BRANCH OF SERVICE: MARINE CORPS          BOARD DATE: 20130328
SEPARATION DATE: 20070815                


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Duty SSgt/E-6 (1345/Engineer Equipment Operator) medically separated for chronic neck pain. The CI has neck pain secondary to a spine fracture suffered in a vehicle rollover accident in December 2005, treated with non-operative therapy and physical therapy (PT) rehabilitation. 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 chronic pain due to trauma condition was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The informal PEB adjudicated the chronic neck pain secondary to C1-2 fracture which caused moderate to severe osteoarthritis and facet joint syndrome unfitting, rated 20%, with likely application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 20% disability rating.


CI CONTENTION: “My only issue is that my service time was at 19 years. I served honorably and was not able to retire. The medical (Tricare) benefits would help me financially, should I be afforded retirement at this time. If I were able to retire, my severance, I believe could be paid back to the government in full by the back pay of E-6 for 4 years. I would have a steady source of income that would enable me to go to college and improve my quality of life.”


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 chronic neck pain 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, including the CI’s concern regarding length of service, remain eligible for future consideration by the Board for Correction of Naval Records.


RATING COMPARISON :

Service IPEB – Dated 20070522
 VA - (~5 years Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Neck Pain Secondary to C1-2 Fracture which Caused Moderate to Severe Osteoarthritis and Facet Joint Syndrome 5237 20% Degenerative Joint/Disc Disease, Cervical Spine(Claimed as C2/T1 Vertebra Fracture, Arthritis In Vertebra and Loss of Range of Motion of Neck) 5243-5242 20% 20120608
No Additional MEB/PEB Entries
 Tinnitus 6100 10% 20120608
Other x 0% 20120608
Combined: 20%
 Combined: 30%

ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service connected by the VA but not determined to be unfitting by the PEB. However the Department of Veteran Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. This Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.

Chronic Neck Pain: The CI was well until 19 December 2005, when, while enroute to a new duty station, his vehicle was struck from behind by a tractor trailer, crossed a median strip and rolled over. He was hospitalized, and diagnosed with three spinal fractures; namely, a left pedicle fracture of C2, and a linear fracture of the anterior column of T1 and T2. The injuries did not require surgery. Experiencing neck pain, not relieved by therapy, he was evaluated by orthopedics on 26 September 2006, documenting “significant osteoarthritic changes” presumably secondary to trauma. Nuclear scan in 2006 revealed degenerative changes in the cervical spine. CT scan in February 2006 revealed multi-level bilateral foraminal narrowing with facet hypertrophy. Service treatment records (STRs) on 26 October 2006, note a diagnosis of a “partial non-union of his cervical fracture.” The MEB physical examination (DD Form 2808), on 24 January 2007, diagnosed “cervical fracture” and “post-traumatic arthritis,” noting absence of tenderness to palpation and a normal neurological examination. At the time of the MEB NARSUM, 19 March 2007, the CI noted “sharp, stabbing pain”, constant at 1/10, up to 6/10 with exacerbation, worse with neck rotation, with sleeping and with wearing a helmet. On examination (MEB NARSUM) noted cervical pain with motion, no tenderness to palpation, and decreased cervical range-of-motion (ROM); flexion 45 degrees (normal 45), extension 40 degrees (normal 45), right lateral flexion 10 degrees (normal 45), left lateral flexion 10 degrees (normal 45), right rotation 35 degrees (normal 80), left rotation 25 degrees (normal 80) and combined 170 degrees (normal 340). There was no radiating pain including with axial compression and upper extremity strength, sensation and deep tendon reflexes (DTR) were normal. There was no VA Compensation and Pension (C&P) examination; proximate to the time of separation. The first available examination was performed 28 June 2012, approximately 5 years after separation. The CI reported continued pain, inhibiting his ability to drive or to work. Upon examination, tenderness to palpation, muscle spasm and abnormal spine contour were noted. On examination, there was painful motion limited to 40 degrees of flexion and a combined ROM of 105 degrees. There was no evidence of radiculopathy on examination. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the neck pain condition 20%, coded 5237 for cervical strain. 5 years later, the VA rated the condition 20% based on an examination in June 2012, using code 5243-5242, for a history of cervical fracture with subsequent cervical degenerative joint disease. The different codes did not affect rating as both are based on the same general rating formula for diseases and injuries of the spine. The limitation of cervical spine motion at the MEB examination and the VA C&P examination remote from separation met guidelines for the 20% rating based on combined ROM not greater than 170 degrees. There is no documentation in this case of any incapacitating episodes, which would allow for rating under the alternate formula for intervertebral disc syndrome (5243). There was no associated radiculopathy for consideration for separate 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 a change in the PEB adjudication for the chronic 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 chronic neck pain condition and IAW VASRD §4.71, 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 recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Neck Pain Condition 5237 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110922, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





                  XX
                  Acting Director
                  Physical Disability Board of Review


 MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) CORB ltr dtd 29 Apr 13

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandum, 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:

                  - XX former USMC
 - XX former USMC
- XX former USN
        - XX former USMC
         - XX former USN
         - XX former USMC
                                                      XX
                                                     Assistant General Counsel
                                                      (Manpower & Reserve Affairs)



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