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AF | PDBR | CY2012 | PD2012 01316
Original file (PD2012 01316.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201316   SEPARATION DATE: 20061005
BOARD DATE: 20130410


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard (drilling member), MSG/E-8 (13Z/Artillery Intelligence Sergeant), medically separated for chronic neck pain status post (s/p) C4-7 fusion. The CI began experiencing neck pain with right arm radicular symptoms after injuries sustained in his civilian occupation as a Correctional Officer in January 1998. The CI underwent surgical intervention for his cervicalgia and right upper extremity radiculopathy in 1998 and 2004. 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 MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the neck condition as unfitting, determine the condition to have existed prior to service (EPTS) and was not permanently service aggravated, but was compensable in accordance with 10 USC 1207a (8 year rule). The CI was rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI appealed to the Formal PEB (FPEB) who affirmed the findings of the Informal PEB (IPEB). The CI elected to transfer to the Retired Reserves awaiting pay at age 60 in lieu of disability severance pay.
CI CONTENTION: “Seperation Board determined 10% on range of motion only. Received combined 100% permanent and total disability back to July 2005 by VA. 60% combined rating disability w/unemployability at 100% due to the severity of the cervical spine rating, limitations etc. The Formal Hearing did not complete a combined rating of medical conditions. The Formal Hearing determined that my injuries/disease was not service connected nor aggravated by service.”


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 only condition identified by the MEB/ narrative summary (NARSUM) was cervicalgia with radiculopathy. The remaining conditions rated by the VA 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 FPEB – Dated 20060725
 VA (7 Mos. Pre-Separation) – All Effective Date 20040620
Condition
 Code Rating Condition Code Rating Exam
Neck Pain s/p fusion 5241 10% DDD s/p Laminectomy C Spine 5242 10% 20060330
↓No Additional MEB/PEB Entries↓
 Left wrist 5215 10% 20060330
Tinnitus 6260 10% 20060323
0% X 3 / Not Service-Connected x 3
Rating: 10%
 Combined: 30%

ANALYSIS SUMMARY: The Board acknowledges the post-separation course of the CI’s VA disability ratings, and notes that increased and retroeffective ratings were awarded after the initial post-separating ratings charted above. The Board wishes to clarify that it is subject to the same laws for Service disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximate to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of fitness decisions and rating determinations for disability at the time of separation. DoDI 6040.44 specifies a 12-month interval for special consideration to VA findings. Post-separation evidence, however, is probative only to the extent that it reasonably reflects the disability at the time of separation. It is further clarified that, while the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short the member’s career. The DVA, however, 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.

Cervicalgia with Radiculopathy Condition. The CI first started experiencing cervical neck and right upper extremity pain after civilian work related injuries in January 1998. He came to neurosurgery attention in February 1998 and was noted to have worsening neck and right arm radicular pain with paresthesias and intrinsic hand muscle weakness. A magnetic resonance imaging (MRI) study revealed a right C6-7 disk rupture. The CI underwent a cervical laminectomy with resolution of his symptoms. In August 2003, the CI presented to the emergency department with neck pain radiating down his right arm after lifting at the gym. No direct trauma was reported. There was no significant improvement with physical therapy and transient relief with transcutaneous electrical nerve stimulation (TENS) unit therapy. The CI underwent a second surgical intervention in November 2004, which relieved the pain radiating down his right arm, however he continued to have mild neck pain with decreased sensation and subjective weakness of the right upper extremity. He was issued a permanent U3 profile and referred for a MEB. At the time of the NARSUM the CI’s reported constant neck pain did not require medication. The physical examination noted 5/5 upper extremity strength, no muscle atrophy and intact sensation to light touch and pinprick. There were 4 goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Cervical ROM
 VA C&P ~7 Mo. Pre-Sep MEB ~5 Mo. Pre-Sep Physical Therapy ~ 3 Mo Pre-Sep Chiropractic ~ 3 Mo Pre-Sep
Flex
35⁰ 55⁰ (45) 7 ⁰ 1 5
Ext
25⁰ 30⁰ 13 ⁰ 10
R Lat Flex
25⁰ 15⁰ 6 ⁰ 1 5
L Lat Flex
25⁰ 20⁰ 6 ⁰ 10
R Rotation
60⁰ 45⁰ 20 ⁰ 10
L Rotation
60⁰ 50⁰ 16 ⁰ 15
COMBINED
230⁰ 205⁰ 68 ⁰ 75
Comment
Muscle spasms present; TTP; painful motion
 Blank facial expression on all movements Increased muscular tonicity bilateral cervical paraspinous; decreased right hand grip, decreased deep tendon reflects bilaterally. N/A
§4.71a Rating
20%
 10% 30% 30%
At the VA Compensation and Pension (C&P) exam 7 months prior to separation, the CI reported cervical neck pain rated 2/10 with muscle spasms and tremors of the right upper extremity. He reported pain flares one to two times per week relieved by muscle relaxing medications without functional limitations. At the MEB exam 4 months prior to separation , the CI reported constant back pain. The MEB physical exam noted well healed incision in the anterior neck, subjective decreased sensation in the entire right upper extremity with good muscle and grip strength . There was no muscle atrophy . Three months prior to separation the CI presented for chiropractic care with ROM as listed above. There was no chiropractic history and physical examination documented. The CI had an a cute exacerbation in August 2006 2 months prior to separation . Physical examination noted tenderness to palpation upper cervical musculature and decreased ROM all directions . F our months post - separation his primary care provider document s cervical forward flexion of 5 degrees with use of a muscle relaxant and Tylenol #3 for pain management.

The Board directs attention to its rating recommendation based on the above evidence. The NARSUM documented the unfitting condition as cervicalgia with radiculopathy. The PEB adjudicated the cervicalgia with radiculopathy as chronic neck pain without significant upper extremity motor abnormalities. The Board must first consider whether radiculopathy remains separately unfitting, having de-coupled it from a combined PEB adjudication. The Board could not find evidence in the commander’s statement or elsewhere in the file that documented any interference of the right upper extremity radiculopathy condition with performance of duties, nor were any physical findings documented by the MEB and VA examiners which would logically be associated with significant disability. After due deliberation, the Board agreed that evidence does not support a conclusion that right upper extremity radiculopathy, as an isolated condition, would have rendered the CI incapable of continued service within his MOS; and, accordingly cannot recommend a separate rating for it. The Board then considered the cervical spine condition. The PEB rated the cervical spine condition at 10% based on cervical spine limitation of motion s/p surgical interventions, coded 5241, spinal fusion. The VA rated the cervical spine condition at 30% based on goniometric ROM from a civilian chiropractor, coded 5242, degenerative arthritis of the spine. The service treatment records, VA examinations, and civilian records document progressive decrement in cervical ROM s/p surgical intervention for cervicalgia with radiculopathy. The chiropractic and physical therapy notes (most proximate to separation) documented cervical spine forward flexion at 7 and 15 degrees respectively. Board members agreed that forward flexion of less than 15 degrees satisfies the 30% criteria, IAW VASRD §4.71a. 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 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, the Board unanimously recommends a disability rating of 30%, coded 5241 IAW VASRD §4.71a. In the matter of the right upper extremity radiculopathy condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s not separately unfitting adjudication. 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
Cervical Neck Pain s/p C4-7 fusion 5241 30%
RATING
 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120722, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130009617 (PD201201316)


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 Reserve retirement.

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 Reserve retirement.

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

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for payment of permanent retired pay at 30% effective the date of the original medical separation for disability with Reserve retirement.

         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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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