RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 

NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY 

CASE NUMBER: PD1201779 SEPARATION DATE: 20091129 

BOARD DATE: 20130205 

 

 

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this 
covered individual (CI) was an active duty Soldier, SGT/E-5(68W/JOB), medically separated for 
degenerative disc disease (DDD) of the cervical spine. The CI injured his neck in December 1999 
after falling while climbing a fast rope, hitting his shoulder, head, and neck. He reinjured his 
neck in April 2008 while completing training exercises during the Warrior Leadership Course. 
The CI did not improve adequately with treatment to meet the physical requirements of his 
Military Occupational Specialty (MOS), was issued a permanent P3/U3 profile, and referred for 
a Medical Evaluation Board (MEB). The MEB forwarded DDD of the cervical spine and diabetes 
mellitus (DM), Type II, as medically unacceptable IAW AR 40-501. Hypothyroidism and 
obstructive sleep apnea (OSA), identified in the rating chart below, were also identified and 
forwarded by the MEB as being medically acceptable. The Physical Evaluation Board (PEB) 
adjudicated the DDD of the cervical spine as unfitting, rated 20%, with application of the 
Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The PEB adjudicated the DM, type II, 
as not unfitting; and the hypothyroidism and the OSA as meeting medical retention standards. 
The CI made no appeals, and was medically separated with a 20% disability rating. 

 

 

CI CONTENTION: The CI states: “I believe that my loss or Range of Motion. numbness and 
tingling in my right arm as well as muscle spasms in both triceps. I constantly have muscle 
spasms in my neck which has caused numbness on the right side or my neck and down my right 
trapezia. My daily pain of 3-4/10, which I'm on 500 Naproxen BID.” [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 condition, degenerative disease of the cervical spine, will be reviewed. The remaining 
conditions rated by the VA at separation, sleep apnea, DM, hypothyroidism, and the motor 
weakness and sensory deficit right upper extremity associated with DDD, are not within the 
Board’s purview. 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: 

 

Service PEB – Dated 20090730 

VA (6 & 7 Mos. Pre-Separation) – All Effective Date 20091130* 

Condition 

Code 

Rating 

Condition 

Code 

Rating 

Exam 

 

DDD of the Cervical Spine 

 

5243 

20% 

DDD of the Cervical Spine 

5243 

20% 

20090506 

Motor Weakness & Sensory 
Deficit R Upper Extremity Assoc 
W/DDD Cervical Spine 

8514 

20% 

20090506 

Diabetes Mellitus, Type II 

Not Unfitting 

Diabetes Mellitus 

7913 

20% 

20090402 

Hypothyroidism 

Meets Medical 
Retention Standards 

Hypothyroidism 

7903 

10% 

20090402 

OSA 

Meets Medical 
Retention Standards 

Sleep Apnea w/Continuous 
Positive Airway Machine 

6847 

50% 

20090417 

.No Additional MEB/PEB Entries. 

0% X 0 / Not Service-Connected x 0 

20090402 

Combined: 20% 

Combined: 80% 



 

 

ANALYSIS SUMMARY: This case was adjudicated as part of the pilot disability evaluation system 
under the policy and procedure directive type memorandum (DTM) of 21 November 2007 (DoD 
VA DES Pilot Program). Under this pilot program, the PEB makes fitness determinations only, 
and assigns a disability rating for each unfitting condition based on the proposed VA disability 
rating. The specific VASRD codes applied to the PEB conditions and their respective ratings are 
determined solely by the VA and those applicable to this case are documented in the VA rating 
decision dated 30 November 2009. A condition established as not unfitting by the PEB, 
although coded and rated by the VA, is not subject to disability rating. Members were able to 
appeal fitness determinations to their respective service, and appeal rating determinations to 
the VA. The Board’s role in these cases, as confirmed by consultation with DoD, is two-fold: 
firstly, it must assess the fairness of the PEB’s fitness adjudications; and, may offer 
recommendations for ratings of any condition which it determines would have (independently 
or in combination) rendered the CI incapable of adequately performing required duties. The 
Board’s threshold for countering Disability Evaluation System (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. Secondly, the Board 
must review the fairness and accuracy of the VA assigned rating; and, may recommend a higher 
rating if warranted. As with all such recommendations (IAW DoDI 6040.44) the Board may not 
recommend a rating lower than that received prior to application. 

 

Degenerative Disc Disease of the Cervical Spine. The CI sustained traumatic non fracture injury 
to his neck in 1999. A diagnosis on cervical disc disease was made, and removal of some neck 
bone spurs undertaken for persistent neck pain with numbness and weakness in the right arm. 
The CI reinjured his neck in April 2008 and surgery was recommended by neurosurgeons for 
bilateral radiating neck pain and slight decreased in motor strength of the left biceps and wrist 
extensors (each 4/5). In October 2008, the CI underwent removal of a disc with cervical bone 
fusion at the C6-C7 region, and intervertebral disc replacement at the higher C4-5 and C5-6 
areas after return from OCONUS assignment. Postoperatively, the CI noted improvement in 
neurologic symptoms. The goniometric range-of-motion (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 in Degrees 

VA C&P~7 Mo. Pre-Sep 

(20090402) 

VA C&P ~6 Mo. Pre-Sep 

(20090506), 

Flex (45 Normal) 

25 

20 

Ext (45) 

20 

30 

Comment 

No spasm; no pain on percussion; 
weakness, fatigability, Deluca; 

+ spasm; abnormal contour 

§4.71a Rating 

20% 

20% 



 


At the MEB/narrative summary (NARSUM) exam, performed 17 February 2009 for the DES pilot 
program, the CI noted persistent pain and numbness in the right forearm. At MEB/NARSUM 
evaluation by neurosurgery 26 June 2002, 5 months prior to separation, neck incision was well 
healed and baseline neurologic status of decreased strength in the biceps and wrist muscles 
(4/5) was noted to be ‘improved.’ Radiographs demonstrated the disc implants to be healing in 
good position and the fusion to be stable. At the VA Compensation and Pension (C&P) general 
examination, 2 April 2009 7 months prior to separation, the CI reported neck pain without 
radiation. He noted the pain not to be incapacitating, being able to function and perform his 
daily activities and to be employed. On physical examination, gait and posture were normal. 
Findings on physical exam are noted above. At the C&P spine examination, 6 May 2009 gait 
and position were normal. Spasm, ankylosis, weakness and tenderness of the cervical spine 
were absent. On motor examination, slight decrease in strength was noted in right biceps and 
triceps muscles (4/5) with normal wrist flexion and extension. Sensory examination was normal 
except for a small area (3.9 x 1.9 inches) of slight numbness on the right lower lateral forearm. 
Reflexes were normal except for slight decrease (1+/2+) of right biceps muscle. 

 

The Board directs attention to its rating recommendation based on the above evidence. The VA 
rated the spine condition 20% code 5243, intervertebral disc disease citing ROM of 20 degrees. 
A higher rating of 30% under this code requires a ROM of 15 degrees or less, not supported by 
the record in evidence. The VA also rated the motor and sensory defect of the right upper 
extremity 20% code 8514, paralysis of the radial nerve, mild citing slight reductions in strength 
(4/5) of triceps and finger abduction. The VA considered a rating for incapacitating episodes 
under code 5243. but could find no way to a higher rating of 40% (which requires 4 to 6 weeks 
of incapacitation/12 months) noting 2 to 4 weeks of incapacitation in a 12 month period in this 
case. The PEB adjudicated the back condition as unfitting and assigned a rating of 20% code 
5243 in accordance with the DoD VA DES Pilot Program. The Board unanimously agreed the 
neck condition was unfitting. The Board further agreed this condition was compensable 20%, 
code 5423, and that a higher rating under this code was not supported by the evidence in 
record. The Board considered if additional disability rating was justified for peripheral nerve 
impairment due to radiculopathy. 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. While the CI may have suffered radiating pain, this is subsumed under 
the general spine rating criteria, which specifically states “with or without symptoms such as 
pain (whether or not it radiates).” The Board noted the small area of decreased sensation of 
the lateral left arm to be inconsequential. Therefore, the critical decision is whether or not 
there was a significant motor weakness which would impact military occupation specific 
activities. There is no evidence in this case that motor weakness existed to any degree that 
could be described as functionally impairing. The Board, therefore, concluded that additional 
disability rating was not justified on this basis. The Board agreed that no higher rating than 20% 
could be recommended under 5243, incapacitating episodes, given the statement of the CI on 
C&P exam that pain is not incapacitating and does not prevent him from being employed or 
performing daily activities. The Board was unable to find any pathway to a higher rating using 
any applicable VASRD code. 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 cervical spine 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 cervical spine 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 recharacterization of 
the CI’s disability and separation determination, as follows: 

 

UNFITTING CONDITION 

VASRD CODE 

RATING 

DDD of Cervical Spine 

5243 

20% 

COMBINED 

20% 



 

 

The following documentary evidence was considered: 

 

Exhibit A. DD Form 294, dated 20120927, w/atchs 

Exhibit B. Service Treatment Record 

Exhibit C. Department of Veterans’ Affairs Treatment Record 

 

 

 

 

 

XXXXXXXXXXXXXXXXXXXXXX, DAF 

Acting Director 

Physical Disability Board of Review 


SFMR-RB 


 

 

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

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

 

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXX, AR20130003956 (PD201201779) 

 

 

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 and hereby deny the individual’s application. 

This decision is final. The individual concerned, counsel (if any), and any Members of 
Congress who have shown interest in this application have been notified of this decision 
by mail. 

 

 BY ORDER OF THE SECRETARY OF THE ARMY: 

 

 

 

 

Encl XXXXXXXXXXX 

 Deputy Assistant Secretary 

 (Army Review Boards)