RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:   NAVY 
SEPARATION DATE:  20031002 

 
NAME:    
CASE NUMBER:  PD1200473 
BOARD DATE:  20121130 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered individual (CI) was an active duty PO2/E-5 (BU/Builder), medically separated for chronic 
neck pain.  The condition began in 1992 after an episode of head trauma.  Despite surgery in 
1998 for a herniated disc and ongoing conservative treatment, the neck pain did not improve 
adequately to meet the physical requirements of his rating or satisfy physical fitness standards.  
He was a placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  
The MEB forwarded neck pain with intermittent C7 radiculopathy, right greater than left, to the 
Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E.  The MEB 
forwarded no other conditions for PEB adjudication.  The PEB adjudicated the chronic bilateral 
neck  and  shoulder  pain  as  unfitting,  rated  10%  with  application  of  the  Veteran’s  Affairs 
Schedule for Rating Disabilities (VASRD).  Neck pain with intermittent C7 radiculopathy, right 
greater than left, was determined to be Category II: conditions that contribute to the unfitting 
condition; and no shoulder pathology Category III: conditions that are not separately unfitting 
and do not contribute to the unfitting condition.  The CI made no appeals, and was medically 
separated with a 10% disability rating. 
 
 
CI CONTENTION:  “I was medically discharged at 10% rating after having cervical spine fusion.  I 
was  discharged  at  Naval  Hospital  San  Diego  while  going  through  tests  with  a  possibility  of 
undergoing through a second cervical spine fusion operation.  The doctor decided it was too 
risky  to  undergo  a  second  operation.    I  was  discharged  by  the  hospital  and  the  person  who 
discharged me told me that if I challenge the 10% discharge rating, that there was a possibility I 
may  get  0%.    I  was  scared  accepted  10%  and  when  I  was  discharged  I  lost  my  apartment, 
vehicle, I was hopeless because I could not work.” 
 
 
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 remaining conditions rated by the VA 
at separation and listed on the DD Form 294 application 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 Board for Correction of 
Naval Records. 
 
 
 
 
 
 
 
 
 
 

RATING COMPARISON: 
 

Service IPEB – Dated 20030421 
Code 
Condition 
5290 

Chronic Bilateral Neck and 
Shoulder Pain 
Intermittent C-7 Radiculopathy 
No Shoulder Pathology 

CAT II 
CAT III 

Rating 
10% 

No Additional MEB/PEB Entries 

VA (4 Mos. Pre-Separation) – All Effective Date 20031003 

Condition 

Code 

Rating 

Exam 

Cervical Spine Fusion Residuals 

5243 

20%* 

20030605 

NO VA ENTRY 
Speech Impediment 
Tinnitus 
Major Depressive Disorder 

5045-9304 

6260 
9434 

10% 
10% 
10% 

20030630 

STR 

20030630 
20030605 

Combined:  10% 

0% X 7 / Not Service-Connected x 9 

Combined:  40%** 

*VA decision 20060410 increased to 30% effective 20050427 based on later exams 
**VA decision 20060410 added right and left cervical radiculopathy rated 10% each, effective 20050621; combined 80% with 
other non-PEB conditions 
 
 
ANALYSIS SUMMARY:  With regard to the CI’s assertion that he was advised not to challenge 
the separation rating, the Board must note for the record that it has neither the jurisdiction nor 
authority to scrutinize or render opinions in reference to suspected service improprieties in the 
disposition of a case. 
 
Neck pain.  A fusion procedure with diskectomy at C5-C6 was performed on 11 December 1998 
for treatment of progressive neck pain, left arm pain, and weakness in the left upper extremity 
due  to  a  herniated  disc.    Pain  and  radiculopathy  resolved  post-operatively,  but  neck  pain 
returned within a year.  Subsequent evaluation with cervical myelography, magnetic resonance 
imaging (MRI) and electromyography (EMG) demonstrated no compromise of neural structures, 
good surgical fusion and no evidence of radiculopathy.  Epidural steroid injections and physical 
therapy  were  of  no  lasting  benefit.    There  were  two  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. 
 

MEB ~8 Mo. Pre-Sep 

VA C&P ~4 Mo. Pre-Sep 

Cervical ROM 
in degrees 

Flex (45 Normal) 

Ext (0-45) 

R Lat Flex (0-45) 
L Lat Flex (0-45) 
R Rotation (0-80) 
L Rotation (0-80) 
COMBINED (340) 

Comment 

§4.71a Rating 

“Near Full ROM” 

-- 

Normal gait 

10%* 

 

20 
10 
45 
45 
80 
80 
280 

 

20% 

 

 

     *Conceding painful motion or pain with use 

The narrative summary (NARSUM) performed 8 months prior to separation reported that neck 
pain  radiated  to  the  right  upper  extremity.    Neck  pain  caused  difficulty  sleeping  and  lifting 
heavy items.  Physical examination revealed normal upper extremity muscle strength and no 
sensory deficits.  Gait was normal.  There was no mention of muscle spasm, guarding or spinal 
contour.  An orthopedic NARSUM addendum clarified that shoulder pain was not due to any 
shoulder pathology, but was associated with the neck condition.  At the MEB exam 7 months 
prior  to  separation,  the  CI  reported  numbness  from  the  shoulder  to  fingers.    Daily  use  of 
narcotic pain medication was required.  The physical exam noted normal muscle strength but 
diminished  sensation  in  a  radicular  pattern  bilaterally.    Gait  was  normal.    At  a  neurosurgical 
clinic  exam  4  months  prior  to  separation  the  CI  complained  of  intermittent  incapacitating 
episodes of pain precipitated by unpredictable activities.  The pain lasted hours and radiated 
from the neck along the back of the arm to the elbow and forearm.  The left upper extremity 
was  unaffected.    Neck  ROM  was  intermittently  disrupted  by  these  episodes.    Examination 

   2                                                           PD1200473 
 

revealed no tenderness of the cervical spine.  Neck ROM was documented in an unclear way, 
but  limitation  of  extension  and  slow  rotation  were  present.    There  was  no  evidence  of 
myelopathy.  At the VA Compensation and Pension (C&P) exam 4 months prior to separation, 
the CI reported a daily neck pain severity averaging two on a 0-10 scale.  Neck pain was caused 
by lifting, and radiation to the right upper extremity occurred intermittently.  Activities of daily 
living were not prevented.   Examination revealed normal motor, sensory and reflex findings, 
but  was  silent  regarding  gait  and  spinal  contour.    ROM  of  the  neck  was  not  decreased  with 
repetition and was performed “without difficulty.”  Spinal contour was not mentioned, but a 
separate VA examiner that day noted a normal gait.  At a follow-up VA clinic visit seven months 
after separation, the CI reported an inability to perform office work due to recurrent pain with 
lifting  boxes;  he  was  attending  school.    Neck  pain  sometimes  radiated  down  the  right  arm.  
Examination revealed decreased flexion and rotation. 
 
The Board directs attention to its rating recommendation based on the above evidence.  It is 
noted in this case that the PEB's adjudication was IAW VASRD §4.71a criteria in effect at the 
time of those proceedings; but, a change to the current §4.71a criteria (General Rating Formula 
for Diseases and Injuries of the Spine) occurred on 26 September 2003, in advance of the date 
of  separation. 
  The  Board,  IAW  DoDI  6040.44,  must  apply  the  latter  criteria  to  its 
recommendation.  The PEB assigned a 10% rating under the old 5290 code (“slight” limitation of 
cervical motion), while the VA’s 20% rating was under the new 5243 code (intervertebral disc 
syndrome).    Under  the  newer  VASRD  rules  in  effect,  a  20%  rating  is  assigned  when  forward 
flexion  of  the  cervical  spine  is  greater  than  15  degrees  but  not  greater  than  30  degrees; 
combined  range of  motion  is not  greater  than  170 degrees;  or,  muscle spasm  or  guarding  is 
present  severe  enough  to  result  in  an  abnormal  gait  or  abnormal  spinal  contour  such  as 
scoliosis, reversed lordosis, or abnormal kyphosis.  The Board considered that the near full ROM 
on the NARSUM exam was not consistent with other notes in evidence proximal to separation 
showing limitation of motion.  Because the C&P exam was more proximal to separation than 
the NARSUM, provided the detailed ROM measurements necessary to accurately determine a 
rating and was more consistent with other clinical observations detailed above, it was assigned 
higher  probative  value  by  the  Board.    The  cervical  spine  flexion  documented  by  this  exam 
supported a 20% rating.  The Board further deliberated if additional disability was justified for 
the  history  of  right  upper  extremity  radiculopathy.    The  PEB  adjudicated  intermittent 
radiculopathy as a Category II condition that contributed to the unfitting neck condition.  The CI 
complained  of 
  There  were  no 
electrodiagnostic  abnormalities  and  an  MRI  showed  no  right-sided  neuroforaminal 
impingement or cord compression.  Except for one examiner detecting diminished sensation, all 
examinations recorded normal neurologic findings, including muscle strength.  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.  There is no evidence 
in  this  case  of  functional  impairment  attributable  to  peripheral  neuropathy.    While  the  CI 
experienced  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 therefore concludes that additional disability was not justified on this basis.  The Board 
finally  considered  whether  a  higher  rating  could  be  achieved  under  the  formula  for  rating 
intervertebral disc disease based on incapacitating episodes.  The CI complained of episodes of 
“incapacitating pain” prior to separation, but there was no evidence that the minimum rating 
under  that  formula  was  met.    After  due  deliberation,  considering  all  of  the  evidence  and 
mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for 
the neck pain condition, and recommends the code 5241 (spinal fusion) IAW the newer §4.71a 
VASRD criteria. 
 
 

intermittent  right  upper  extremity  radiating  pain. 

   3                                                           PD1200473 
 

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 chronic bilateral neck and shoulder pain condition, the 
Board  unanimously  recommends  a  disability  rating  of  20%,  coded  5241  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:   
 

VASRD CODE  RATING 

5241 

COMBINED 

20% 
20% 

Chronic Bilateral Neck and Shoulder Pain 

UNFITTING CONDITION 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120602, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 

 

             
           President 
           Physical Disability Board of Review 

   4                                                           PD1200473 
 

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS 
                                        COMMANDER, NAVY PERSONNEL COMMAND 
 
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS 
 
Ref:   (a) DoDI 6040.44 
          (b) PDBR ltr dtd 17 Dec 12  
          (c) PDBR ltr dtd 5 Dec 12  
          (d) PDBR ltr dtd 11 Dec 12  
          (e) PDBR ltr dtd 26 Nov 12  
          (f) PDBR ltr dtd 20 Nov 12  
                               
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of 
Review set forth in references (b) through (f). 
 
2.    The  official  records  of  the  following  individuals  are  to  be  corrected  to  reflect  the  stated 
disposition: 
 
     a.    former USMC:  Disability separation with a final disability rating of 20 percent (increased 
from 10 percent) with entitlement to disability severance pay. 
 
     b.    former USMC:  Disability separation with a final disability rating of 10 percent (increased 
from zero percent) with entitlement to disability severance pay.  
 
     c.    former USN:  Disability separation with a final disability rating of 20 percent (increased 
from 10 percent) with entitlement to disability severance pay. 
 
     d.  former USN:  Disability separation with a final disability rating of 20 percent (increased 
from 10 percent) with entitlement to disability severance pay. 
 
     e.  former USMC:  Disability separation with a final disability rating of 20 percent (increased 
from 10 percent) with entitlement to disability severance pay. 
 
3.    Please  ensure  all  necessary  actions  are  taken,  included  the  recoupment  of  disability 
severance  pay  if  warranted,  to  implement  these  decisions  and  that  subject  members  are 
notified once those actions are completed. 
 
 
 
 
 
 
 

 
Assistant General Counsel 
Manpower & Reserve Affairs) 

 

   5                                                           PD1200473