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AF | PDBR | CY2012 | PD2012 01867
Original file (PD2012 01867.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xx         CASE: PD1201867
BRANCH OF SERVICE: NAVY  BOARD DATE: 20130618
SEPARATION DATE: 20030515


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Petty Officer First Class / E-6 (AC1/Air Traffic Control [ATC] Specialist/Facility Watch Supervisor) medically separated for left C5 radiculopathy. On 14 January 2001 the CI was rear-ended by a bus, after which he had multiple areas of pain and “shooting pain” in his left arm into the second and third fingers. Radiographic testing of the cervical spine demonstrated findings consistent with osteoarthritis and electromyography confirmed the presence of a radiculopathy involving the left fifth cervical nerve root. The CI was treated with physical therapy, non-steroidal anti-inflammatory drugs (NSAIDS) and a medication used to treat nerve pain (Neurontin [Gabapentin]). The condition could not be adequately rehabilitated to meet physical fitness requirements nor could he continue to perform his ATC duties due to the side-effect profile of the medication (Neurontin) he was taking. He was placed on limited duty and referred for a Medical Evaluation Board (MEB). The MEB forwarded cervical osteoarthritis to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The MEB submitted no other conditions. The PEB adjudicated left C5 radiculopathy as unfitting, rated 20%. The cervical osteoarthritis condition w as determined to be C ategory II, a condition that is related to and contributes to the unfitting condition. The CI made no appeals and was medically separated.


CI CONTENTION: “I have continued to suffer from the injuries occured while in the military. I have had mulitple procedures and continue to see doctors for my conditions.”


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 left C5 radiculopathy condition and the cervical osteoarthritis is addressed below; no additional conditions are within the Board’s defined DoDI 6040.44 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 Board for Correction of Naval Records.


RATING COMPARISON:

Service IPEB – Dated 20030314
 VA - (2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Left C5 Radiculopathy
 8510 20% Cervical Strain (claimed as Left C5 Radiculopathy) 5299-5290* 10% 20030715
Cervical Osteoarthritis
 Category II
No Additional MEB/PEB Entries
 Other x7 10% 20030715
Combined: 20%
 Combined: 20%
Original VA Rating Decision (VA RD ) dated 200 30819 (most proximate to date of separation [ DOS ] )
* After a Notice of Disagreement, VARD dated 20041013 modified the condition description to include “ cervical osteoarthritis ” and revised the coding to 5010-5237 ; however, it did not change the rating which remained 10%.

ANALYSIS SUMMARY: The Board acknowledges the significant impairment with which the CI’s service-connected condition continues to burden him but notes the Disability Evaluation System 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, operating under a different set of laws.

Left C5 Radiculopathy Condition. In January 2001, the CI suffered immediate neck and low back pain after his stationary vehicle was rear-ended by a bus that was traveling 20-30 mph. A magnetic resonance imaging (MRI) of his cervical spine performed within a week of the accident revealed a small central disc herniation at C4-5. Over the next 12 months, he was treated with NSAIDS, muscle relaxers and limited duty for 8 months. He had persistent cervical spine symptoms that evolved into predominantly shooting pains into his left hand. He received medical clearance to perform ATC duties in January 2002. A repeat MRI performed 14 months prior to separation revealed the disc bulge of C4-5 and a new mild to moderate foraminal stenosis (constriction around the nerve root opening) at C6-7, which is consistent with osteoarthritis. Within the 12 months prior to separation, he continued to have complaints, primarily of the left radicular symptoms. Seven months prior to separation, the CI was treated with Neurontin in an attempt to control the nerve pain; this resulted in his being “grounded” from ATC duty because of potential drowsiness caused by the medication. Electromyography performed 6 months prior to separation confirmed the presence of a chronic C5 radiculopathy. The range-of-motion (ROM) of his neck was always described as full in flexion and extension. The narrative summary (NARSUM) prepared 6 months prior to separation, noted that he denied any weakness of the left arm or leg. He did note that there were brief periods of loss or decrease in sensation of the left arm, particularly after he experienced an episode of shooting pain there. Physical exam noted normal strength, sensation and reflexes of his upper extremities. The NARSUM contained the following summary statement:

A Medical Board of Staff Neurologists concluded that the patient most probably is suffering from cervical osteoarthritic changes producing secondary irritation of his fifth left cervical nerve root with a left C5 radiculopathy. He remains resistant to treatment with physical therapy and has gained relief only with Neurontin which renders him unfit to carry out his duties as an air controller.

The MEB physical exam performed 6 months prior to separation noted full ROM in flexion and extension with pain on the left side and decreased right sided rotation and ear to shoulder bending due to pain. There was no reported radicular pain or symptoms during the exam. At the VA Compensation and Pension exam performed 2 months after separation, the CI reported that, “The neck pain, low back pain and left shoulder are all off and on kind of pain.” Physical exam revealed the cervical spine had extension to 35 degrees (45 degrees is normal), forward flexion to 50 degrees (45 degrees is normal), left lateral rotation to 45 degrees (80 degrees is normal) and right lateral rotation to 35 degrees. There was normal neuromuscular function.

The Board directs attention to its rating recommendation based on the above evidence. The PEB applied the Veterans Affairs Schedule for Rating Disabilities (VASRD) code 8510, paralysis of the upper radicular group (5th and 6th cervicals), and rated it 20% for mild. The PEB adjudicated the cervical osteoarthritis as Category II, contributing to the unfitting diagnosis. It is noteworthy that the fitness related documentation (commander’s non-medical assessment, aeromedical grounding notice and flight surgeon’s non-qualification for ATC duties), within a year of separation, refers to the CI’s limitation in ATC duties due to potential side-effects from medication prescribed to treat his radiculopathy. There is no direct evidence that the cervical osteoarthritis was separately unfitting. The VA initially applied the analogous VASRD code 5299-5290, cervical spine limitation of motion, and rated it 10% for a “slightly” limited ROM. After the CI filed a notice of disagreement, the VA modified the analogous code to 5010-5237, cervical strain, and rated it 10% based on the general rating formula for diseases and injuries of the spine which became effective 26 September 2003. This general rating formula includes consideration for pain, whether or not it radiates, and the new VARD stated that its 10% rating included the combined osteoarthritis and the C5 radiculopathy. The Board considered all potential rating options in its deliberations and there is no allowable option that is of benefit to the CI. Rating under peripheral nerve codes entails a judgment call regarding the severity of incomplete paralysis, especially the ‘mild’ vs. ‘moderate’ distinction. Members agreed that a fair threshold for the ‘moderate’ rating should entail functionally significant motor and/or sensory impairment encroaching on some occupational tasks. It was concluded that there was insufficient evidence in this case that this threshold was met. Considering the totality of the evidence and mindful of VASRD §4.3 (Reasonable doubt), members agreed that a disability rating of 20% for the left C5 radiculopathy condition was appropriately recommended in this case.


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 left C5 radiculopathy condition and IAW VASRD §4.124a, 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
Left C5 Radiculopathy
 8510 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121029, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





xx
President
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 11 Sep 13

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their respective 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:
- former USN
- former USN
- former USMC
- former USN
- former USN



         xx
         Assistant General Counsel
         (Manpower & Reserve Affairs)

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