RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1200274 SEPARATION DATE: 20020620

BOARD DATE: 20120913

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard PVT/E-1 on a Temporary Tour of Active Duty (19K00 / Basic Trainee), medically separated for chronic right sided neck pain. The CI did not respond adequately to treatment and was unable to perform within his Military Occupational Specialty (MOS) or meet physical fitness standards. He was issued a permanent U3 profile and underwent a Medical Evaluation Board (MEB). Right sided neck pain was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. No other conditions appeared on the MEB’s submission. The PEB (PEB) adjudicated the chronic right sided neck pain condition as unfitting, rated 0%, with specified application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and was medically separated with a 0% combined disability rating.

CI CONTENTION: “Whiplash to the neck/right shoulder. Since the injury I have had numerous problems mostly involving right shoulder. Most have been problem with nerves and tingling that goes down the whole right side of my body. Sometimes my whole right arm has gone numb. When I lift things my shoulder flares up and has been a real hindrance in trying to maintain any sort of employment. Having a rating of 10 percent has not allowed me the opportunity to access some of the resources available that a higher rating might afford. In addition, the monetary compensation has not helped at the current rating. I have a wife and two kids and I am currently unemployed. Every job since the injury during active duty has required the use of my right arm (lifting, pulling, stretching) that has all caused excessive amounts of pain. When I have gone to the VA to have my shoulder looked at, it has always been brought up that I may have some nerve damage caused by the whiplash. I have had problems with my trapezius muscle as well. I have moved twice since my last VA visit, but each visit has been the same, with the same results. I have been given multiple exercise routines to help strengthen the core muscle area on my right shoulder. It has been 10 years since the initial injury and I still have reoccurring neck and (sic) shoulder pain from this injury. I hope to have my 10 percent rating increased so that I can look into employment services that may help me get a job. I need to have a job at a desk where I am not lift (sic) anything at all. I have not wanted to seek increasing my rating because I feel there are so many more veterans worse off than me, but I can no longer accept that things will just be ok and get better for me. I have a disability from my injury and it needs to be addressed. 10 years of excruciating pain in my shoulder is a problem and I know the 10 percent needs to be adjusted. Specifically, I have occupational & social impairment with occasional decrease in work efficiency (sic) and intermittent periods of inability to perform tasks. My chronic neck/shoulder pain from whiplash has carried these above affects (sic) for 10 years.”

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. 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:

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, that 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. This role and authority is granted by Congress to the Department of Veterans’ Affairs (DVA).

Chronic Right Sided Neck Pain Condition. There were two non-goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria.

The CI fell during obstacle course training with a “whiplash type” injury and the right shoulder and neck pain got progressively worse. He was treated in Physical Therapy (PT) for neck tenderness and pain with a diagnosis of torticollis. Treatment with an injectable non steroidal anti inflammatory drug (NSAID) and a muscle relaxant was not successful in relieving pain-limited motion of the neck and pain radiation to the right shoulder and arm. The MEB examination performed

2 months prior to separation indicated neck pain on right lateral flexion and right rotation unresolved despite PT and medications for spasm and pain. X-rays of the neck and right shoulder (not in evidence) were normal by report.

There was no VA Compensation and Pension(C&P) examination, and the VA rating used the evidence of the service treatment record.

The 2002 Veterans’ Administration Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of separation, were modified on 23 September 2002 to add incapacitating episodes (5293 Intervertebral disc syndrome), and then changed to the current §4.71a rating standards on 26 September 2003. The 2002 standards for rating based on range of motion (ROM) impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment. For the reader’s convenience, the 2002 rating codes under discussion in this case are excerpted below.

5290 Spine, limitation of motion of, cervical:

Severe.................................................30

Moderate...............................................20

Slight.................................................10

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the neck condition analogously to 5003 at 0% indicating that pain was rated as slight and occasional with application of the USAPDA pain policy. The VA coded the neck condition as 5290, Spine-limitation of motion, cervical and rated at 10% based on the STR. Although the CI had frequent pain-limited motion of the neck, best categorized as slight, there was no ROM limitation on the narrative summary (NARSUM) exam. However, there was consistent evidence that the CI had painful motion of the neck that IAW VASRD §4.59 warrants “at least the minimum compensable rating for the joint.” After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59 (painful motion), the Board recommends a disability rating of 10% for the neck condition coded 5099-5290 IAW VASRD §4.71a.

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 0% was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic right sided neck pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5290 IAW VASRD §4.71a. 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, effective as of the date of his prior medical separation:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120310, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXX

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

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for XXXXXXXXXXXXXXXXX, AR20120016982 (PD201200274)

1. 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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation. This decision is final.

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.

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 XXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA