RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1100274 SEPARATION DATE: 20071228

BOARD DATE: 20121010

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (25B20/Information Systems Operations Analyst), medically separated for chronic neck pain. The condition began in 2005 while doing sit-ups during a deployment to Kuwait, and subsequently worsened. He was diagnosed with multilevel degenerative disc disease (DDD), for which surgery was not indicated. The CI did not improve adequately with treatment 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 MEB forwarded cervical DDDto the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Right keratoconus, identified in the rating chart below, was also identified and forwarded by the MEB as meeting retention standards. The PEB adjudicated the chronic neck pain condition as unfitting, rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy. The keratoconus condition was determined to be not unfitting and therefore not ratable. After the CI non-concurred the determination, the PEB administratively corrected the DD Form 199 without changing the adjudication. The USAPDA concluded the case was properly adjudicated, and the CI was then medically separated with a 10% disability rating.

CI CONTENTION: “I was rated 0% for kerataconus in my right eye. According to the VASRD in effect at the time of my Physical Disability Review and my discharge, I would have been rated 30% as contact lenses were medically necessary. The contacts were prescribed by an Army doctor, Tri-care and a private doctor fulfilled 2 sets of special contact lenses before my discharge. This would have brought my combined rating to 40% according the ratings calculation and VARSD in effect at time of Medical Evaluation board. Kerataconus was identified at the time of my PEB, but not found unfitting. Therefore in accordance with DoD instruction 6040.44 Change 1 6/2/2009, I request the PDBR review the condition of kerataconus that was identified during my PEB diagnosis #2 but determined to be unfitting. This determination is inconsistent with the VASRD in effect at the time and had I been to the PEB only a month after my discharge on 1/28/2008 when President Bush signed into the law the 2008 Defense Authorization Act I am confident I would have been rated 30% for kerataconus as multiple Army, civilian, and VA doctors both during and after my discharge have prescribed contact lenses. The VASRD in effect at the time has medically necessary contact lenses rated at 30%, this in conjunction with the 10% rating for my cervical disc degeneration would have put me at 40%. Well above the 30% required to qualified for medical retirement.” [sic]

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The keratoconus condition requested for consideration and the unfitting cervical DDD condition meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below. 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 Army Board for Correction of Military Records.

RATING COMPARISON:

*Increased to 10% by 20120419 VA decision based on later exam, effective 20110422; combined 20%

ANALYSIS SUMMARY: The military services, by law, can only rate and compensate for those conditions that were found unfitting for continued military service based on the severity of the condition at the time of separation and not based on possible future changes. The Department of Veterans’ Affairs (DVA); however, can rate and compensate all service-connected conditions without regard to their impact on performance of military duties, including conditions developing after separation that are direct complications of a service-connected condition. The DVA can also increase or decrease ratings based on the changing severity of each condition over time. The 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. It must also judge the fairness of PEB fitness adjudications based on the fitness consequences of conditions as they existed at the time of separation. The Board’s threshold for countering DES fitness determinations is higher than the VASRD §4.3 reasonable doubt standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. Furthermore, a “crystal ball” requirement is not imposed on the service PEB’s by the Board, and the 12-month window specified in DoDI 6040.44 is appropriate for rating comparisons, but not for new developments after separation.

Chronic Neck Pain Condition. The condition began abruptly in October 2005 while doing sit-ups. Ongoing pain was determined to be secondary to multilevel cervical DDD and was treated unsuccessfully with physical therapy, traction, medications, electrical stimulation, chiropractic manipulation and epidural steroid injections. There was one goniometric range-of-motion (ROM) evaluation in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation, as summarized in the chart below.

A magnetic resonance imaging (MRI) performed on 9 April 2007, 8 months prior to separation, noted mild disc space narrowing at C4 though C6 and moderate narrowing of the left C6 neural foramen secondary to osteophyte formation. At a neurosurgical consultation on 28 June 2007, 6 months prior to separation, the CI reported neck pain was left sided and radiated to the posterior scapular region and into the left shoulder. The examiner stated that radicular type pain was not present. Examination revealed the CI to be quite tense with limited cervical movement, particularly to the left and in hyperextension. Slight torticollis (characterized by involuntary contractions of cervical muscles, and abnormal movements and postures of the head) was present. Muscle strength and deep tendon reflexes (DTRs) were normal. His review of the MRI noted a reverse of the normal cervical lordosis due to DDD and arthritis. He opined that surgery was not indicated for the multilevel DDD. A neurosurgical examination for a second opinion performed on 31 July 2007, 5 months prior to separation, noted the CI to be in mild distress. Gait, muscle strength and tone were normal, but slight torticollis was also observed. The examiner concluded that MRI findings of the cervical spine did not explain the excessive neck pain or the right upper extremity symptoms. This surgeon agreed that operative intervention would not be beneficial. The commander’s statement dated 3 months prior to separation reported that the CI’s neck pain began as a consequence of a military motor vehicle accident while deployed during May 2003. The neck pain from that incident escalated over a period of 2 years until it became physically debilitating, causing him to finally seek medical care. The CI’s condition was noted to severely limit duty performance; he could not lift heavy items and narcotic medication interfered with his ability to handle secret level material. At the MEB exam on 21 August 2007, 3 months prior to separation, the CI “relates that before his acute injury, October 2005, he had no issues with his neck.” Examination observed the CI’s right shoulder and arm shaking and twitching throughout the interview, and he sat on his right hand to prevent twitching, or crossed his arms to calm the shaking; however, the right arm was held somewhat limp at the side during testing. A bilateral tremor of the arms and hands was also present. Although gait was normal, the CI refused to jog or jump for fear of increased neck pain. Marked guarding was present on all passive ROM testing. A review of the medical record performed on 21 August 2007 showed 35 visits for neck pain over the preceding 12 months, with most visits for pain of a moderate to severe degree.

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under an analogous 5243 code (intervertebral disc syndrome) with likely application of the USAPDA pain policy. The VA assigned a 10% rating under the 5237 code (cervical strain) based on an exam performed over 2 years after separation. The Board considered that exam to have no bearing on the severity of the condition at the time of separation. The general spine formula under §4.71a specifies that cervical flexion of 15 degrees or less warrants a 30% rating. In this case, the MEB examination documented cervical flexion of 10 degrees. The Board agreed that this finding was consistent with the presence of torticollis described by two neurosurgeons, and with the numerous outpatient notes portraying moderate to severe pain with supportive examination findings. 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. There was no evidence of ratable peripheral nerve impairment in this case. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the chronic neck pain condition.

Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB was right keratoconus. The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. This condition was not profiled, was not implicated in the commander’s statement and was not judged to fail retention standards. It was reviewed by the action officer and considered by the Board. There was no indication from the record that this condition 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 keratoconus condition; and, therefore, no additional disability ratings can be 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. As discussed above, PEB reliance on the USAPDA pain policy for rating chronic neck pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 30%, coded 5299-5243 IAW VASRD §4.71a. In the matter of the contended right keratoconus condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120806, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for XXXXXXXXXXXXXXXXXXX, AR20120018612 (PD201100274)

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 30% 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 30% 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 XXXXXXXXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA