Search Decisions

Decision Text

AF | PDBR | CY2013 | PD 2013 00893
Original file (PD 2013 00893.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2013-00893
BRANCH OF SERVICE: Army  BOARD DATE: 20140805
SEPARATION DATE: 20071102


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army Reserve SGT/E-5 (92A/Logistics) medically separated for chronic neck and right upper extremity (RUE) pain. The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent U3 profile and underwent a Medical Evaluation Board (MEB). The neck and RUE pain, characterized as “chronic myofascial neck and RUE pain due to degenerative disc disease (DDD) of the cervical spine,” was the only condition forwarded by the MEB to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB adjudicated the chronic myofascial pain as unfitting, rated 10%, with application of the VA Schedule for Rating Disabilities (VASRD). The CI appealed to the Formal PEB (FPEB) who affirmed the 10% rating, but adjudicated the right ulnar neuropathy as not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: “Because I was not properly diagnosed for ulnar neuropathy after one test. Everything was dropped and I continued to have problems. Finally after complaining over and over again it was positive. I was released from the USA Reserves with a 10% rating for chronic myofascial neck & right upper extremity pain due to cervical DDD, but I do not think I was service-connected. Also, VA separated me as service-connected with 20% DDD of the cervical spine, 10% capsulitis, right shoulder, 10%, right hand radiculopathy.”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44. 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 chronic myofascial neck and RUE pain is addressed below. The right ulnar neuropathy is also addressed below. No other conditions are within the defined purview of the Board. Any condition outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Army FPEB – Dated 20070906
 VA* - (3.4 Year Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Myofascial Neck & RUE Pain, due to DDD 5299-5242 10% DDD, Cervical Spine 5242 20% 20040707
Capsulitis, Right Shoulder 5299-5201 10% 20040707
Scar, Right Wrist 7804 0% 20040707
Right Ulnar Neuropathy Not Unfitting Neuropathy, Right Hand 8516 10% 20040707
Other X 0 (Not in Scope)
 Other x 0
Combined: 10%
 Combined: 40%
* Derived from VA Rating Decision (VA RD ) dated 20050916 (most proximate to date of separation )


ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that ratings should have been conferred for other conditions at the time of separation. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System operates. While other symptoms and conditions may have been present, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of final separation. However the Department of Veterans Affairs is empowered to compensate for all service-connected conditions, and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

Chronic myofascial neck and right upper extremity (RUE) pain. In 2003 during mobilization training, this CI developed pain in the neck and RUE. She also reported that her right arm would swell with exercise. Magnetic resonance imaging of the cervical spine showed DDD with broad-based bulging at C5-C6 indenting the thecal sac, but no spinal stenosis (narrowing of the spinal canal). The neural foramina were open, meaning no nerve root impingement. In July 2004, she had a VA Compensation and Pension (C&P) exam. Cervical range-of-motion (ROM) was measured, and is summarized in the chart below. Over the years, the CI was treated with many different modalities, including medications and chiropractic manipulation. In spite of treatment, her pain persisted and an MEB was initiated.

The MEB physical examination (PE) was in January 2007, 10 months prior to the date of separation (DOS). PE of the neck revealed some tenderness to palpation and some right paracervical muscle spasm. Cervical ROM was measured and is summarized in the chart below. As noted above, the CI was found medically unfit and was permanently separated from the military on 2 November 2007. The ROM evaluations which the Board weighed in arriving at its rating recommendations are summarized in the chart below.
Cervical ROM
(Degrees) 		VA C&P ~ 3 years P re -Sep
(20040707)		 MEB ~ 10 mos . Pre-Sep
(200 70111 )		 VA C&P ~ 4 years Post-Sep
 (20111220 )
Flex (45 Normal) 40 (30 w/repeat motion) 25 45 (pain at 45)
Extension (45) 30 (20 w/repeat motion) 40 45 (pain at 45)
R Lat Flexion (45) -- 40 45 (pain at 45)
L Lat Flexion (45) -- 30 45 (pain at 45)
R Rotation (80) 70 (60 w/repeat motion) 50 80 (pain at 80)
L Rotation (80) 60 (50 w/repeat motion) 60 80 (pain at 80)
Combined (340) -- 245 340
invalid font number 31502
The Board carefully examined all available evidence. The Army PEB combined the neck pain and RUE pain together into a single unfitting condition: chronic myofascial neck and RUE pain, due to cervical DDD, without significant neurologic or electrodiagnostic abnormality. The unfitting condition was coded 5299-5242 (analogous to degenerative arthritis of the spine) and rated at 10%. The Board evaluated whether or not it was appropriate for the two problems to be “bundled” together. The Board must determine if the PEB’s approach of combining the conditions under a single rating was justified in lieu of separate ratings. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the VASRD. If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each “unbundled” condition was separately unfitting. After due deliberation, the Board agreed that the evidence does not support a conclusion that the RUE pain, separately, would have rendered the CI unable to perform her required military duties. Accordingly, since it was not separately unfitting, the Board does not recommend a separate disability rating for the RUE pain. It is appropriate for the two pain problems to be “bundled” together and treated as a single, unfitting condition.

The Board directs attention to its rating recommendation based on the above evidence. The Board determined that the January 2007 MEB neck exam was closer to the DOS and therefore had greater probative value. At that exam, forward flexion of the cervical spine was only 25 degrees. IAW VASRD §4.71a, a disability rating of 20% is warranted when cervical flexion is greater than 15 degrees, but not greater than 30 degrees. After due deliberation, the Board determined that a disability rating of 20% was appropriate. The Board tried to find a path to a higher rating, using other codes which could be applied to the CI’s condition. The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a disabling abnormality which would justify a rating higher than 20%.

The Board also considered the matter of cervical radiculopathy. After review of all the information in the record, there was insufficient evidence of a clinically significant radiculopathy that interfered with performance of military duties. Therefore, the Board concluded that there was no unfitting cervical radiculopathy present at the time of separation. Considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board unanimously recommends a disability rating of 20%. It is appropriately coded 5242 and IAW VASRD §4.71a, meets criteria for the 20% rating level due to forward flexion of 25 degrees.

Other Contended PEB Condition (Right ulnar neuropathy). In 2003, the CI developed numbness and tingling in the fingers of her right hand. A nerve conduction study (NCS) was performed and it showed no evidence of right ulnar neuropathy (RUN). In March 2005, because of persistent symptomatology, a repeat NCS was performed. This second study showed electrodiagnostic evidence of ulnar neuropathy at the right elbow, which is called cubital tunnel syndrome. The CI underwent surgery on her right elbow, to move the ulnar nerve. Two months after surgery, on 25 July 2005, she had a C&P neurological exam. The CI reported that she was still having numbness in the ulnar nerve distribution of her right hand. PE of the right hand revealed decreased sensation in the ulnar nerve distribution. The MEB PE was in January 2007, 10 months prior to her separation. PE of the right arm and hand revealed some decreased sensation and slightly decreased muscle strength (4 out of 5). Reflexes were normal. On 6 July 2007, she had another electrodiagnostic study, which again showed evidence of ulnar neuropathy at the right elbow. In September 2007, the FPEB adjudicated the RUN condition as not unfitting. The CI concurred with the FPEB findings.

The Board’s first charge with respect to this RUN condition is to assess the appropriateness of the PEB’s fitness adjudication. The Board’s threshold for countering 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. The RUN condition was reviewed by the action officer and considered by the Board. The Board noted that the RUN condition was not profiled. There was no indication from the record that the RUN condition significantly interfered with satisfactory duty performance. After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for this condition. Therefore, no additional disability ratings are recommended.


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 unfitting chronic myofascial pain condition in the neck and RUE, and IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 20%. In the matter of the RUN condition, the Board unanimously recommends no change in the PEB fitness determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic myofascial neck and RUE pain, due to cervical DDD 5242 20%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130621, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review


 SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXX, AR20150000323 (PD201300893)
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 20% 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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)


CF:
( ) DoD PDBR
( ) DVA

Similar Decisions

  • AF | PDBR | CY2014 | PD-2014-00577

    Original file (PD-2014-00577.rtf) Auto-classification: Denied

    The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. Electrodiagnostic studies (electromyogram and nerve conduction velocity testing) demonstrated a right ulnar nerve neuropathy (at the elbow) but no evidence of any cervical spinal nerve root radiculopathy.At the MEB...

  • AF | PDBR | CY2013 | PD-2013-01826

    Original file (PD-2013-01826.rtf) Auto-classification: Denied

    SEPARATION DATE: 20051206 After reviewing the evidence, all Board members agreed that a rating of 10% was appropriate for the chronic neck pain 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...

  • AF | PDBR | CY2013 | PD-2013-02273

    Original file (PD-2013-02273.rtf) Auto-classification: Approved

    RATING COMPARISON : Service IPEB – Dated 20041027VA - Based on Service Treatment Records (STR)ConditionCodeRatingConditionCodeRatingExam Chronic Neck and Shoulder Pain with Right Arm Numbness5237 -871610%Cervical Disc Herniation at C5-C6 with RUE Radiculopathy5342-871610%STROther x 0 (Not in Scope)Other x 3 STR Combined: 10%Combined: 10%Derived from VA Rating Decision (VARD)dated 20050506 ( most proximate to date of separation [DOS]). In the matter of the Service-combined cervical spine and...

  • AF | PDBR | CY2011 | PD2011-00865

    Original file (PD2011-00865.docx) Auto-classification: Denied

    The VA and PEB both rated the back pain condition 10%. Notably, on the chiropractic examination with near normal lumbar flexion, these signs were absent and this examination was consistent with the post-separation C&P examination as noted above. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition; and, therefore, no additional...

  • AF | PDBR | CY2012 | PD2012-00463

    Original file (PD2012-00463.pdf) Auto-classification: Denied

    The migraine and cubital tunnel syndrome conditions, as requested for consideration, meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the ratings for the unfitting chronic neck and upper back pain condition. The PT examination used in the NARSUM was performed 10 months prior to separation and only 3.5 months after the CI’s second surgical procedure to her neck. RECOMMENDATION: The Board, therefore, recommends that there be...

  • AF | PDBR | CY2009 | PD2009-00219

    Original file (PD2009-00219.docx) Auto-classification: Denied

    Preceding text in the NARSUM, the VA documentation and the service treatment record (STR) all make it clear that both the myofascial condition and the cervical nerve root pathology evidenced in this case affected the right upper extremity (RUE). It should be noted that the combination of the separately listed DA Form 3947 cervical conditions into a single rating is appropriate since separate VASRD ratings are not possible. The Board therefore recommends that the cervical spine condition be...

  • AF | PDBR | CY2011 | PD2011-00476

    Original file (PD2011-00476.docx) Auto-classification: Denied

    SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty member; E-6/SSG (11B/Infantryman) medically separated for a neck (cervical) and back (lumbar) condition. The PEB adjudicated the chronic neck pain condition and chronic LBP condition as unfitting, rated each 10% for a combined rating of 20%, with application of the US Army Physical Disability Agency (USAPDA) pain policy. The ROM’s for the C-spine met the 10%...

  • AF | PDBR | CY2012 | PD 2012 00973

    Original file (PD 2012 00973.txt) Auto-classification: Approved

    The PEB combined all three MEB conditions and adjudicated chronic pain, neck, right shoulder, and right upper back as unfitting, rated 10%, with and the US Army Physical Disability Agency (USAPDA) pain policy. The Board considered VASRD code 5290 (cervical spine limitation of motion) and agreed the documented ROMs satisfies the slight limited descriptor and does not meet the moderate ROM impairment for the 20% higher rating. RECOMMENDATION: The Board recommends that the CI’s prior...

  • AF | PDBR | CY2012 | PD2012-00010

    Original file (PD2012-00010.docx) Auto-classification: Approved

    After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.7 (higher of two evaluations), §4.40 (functional loss) and §4.14 (avoidance of pyramiding) the Board recommends disability ratings of 20% coded 5299-5293 for the cervical spine fusion and arm pain (radicular) condition and a separate 10% rating for the shoulder pain condition coded 5099-5003, and no other unfitting or ratable conditions. In the matter of the chronic pain, right shoulder...

  • AF | PDBR | CY2012 | PD2012 00114

    Original file (PD2012 00114.rtf) Auto-classification: Approved

    The MEB forwarded bilateral ulnar neuropathy at the elbow, chronic neck pain, chronic LBP, and mood disorder with depressive features due to ulnar neuropathy and post-surgical pain unresolved conditions to the Physical Evaluation Board (PEB) IAW AR 40-501. The Board first considered if both the chronic neck pain and chronic LBP conditions, having been de-coupled from the combined PEB adjudication, were each reasonably justified as independently unfitting. Physical Disability Board of Review