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AF | PDBR | CY2013 | PD-2013-01823
Original file (PD-2013-01823.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2013-01823
BRANCH OF SERVICE: Army  BOARD DATE: 20150128
SEPARATION DATE: 20050512


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E-5 (Infantryman) medically separated for a cervical spine fusion. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P3/U3 profile and referred for a Medical Evaluation Board (MEB). The cervical spine condition was characterized by the MEB as follows: “cervical myelopathy, severe” (found medically unacceptable); “status post C4-C7 anterior cervical discectomy and fusion with plate” (found medically acceptable); and “bilateral upper and lower extremity hyperreflexia, severe” (found medically unacceptable). These three conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB (IPEB) adjudicated the three MEB referred conditions under one disability: “cervical spine fusion of C4/C7 from myelopathy,” unfit, rated 20% citing criteria of the VA Schedule for Rating Disabilities (VASRD). The CI non-concurred and initially rebutted this finding, demanding a Formal PEB (FPEB) hearing. After considering the response from the US Army Physical Disability Agency to his rebuttal, the CI withdrew his demand for a FPEB and accepted the IPEB findings. Subsequently, the CI was medically separated with a 20% disability rating.


CI CONTENTION: The CI made no contention in his application.


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. 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. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

Service IPEB – Dated 20050214
 VA – Presumed based on C&P exam near time of separation (evidence in record indicates this; but actual source documents were not in evidence)
Condition
 Code Rating Condition Code Rating Exam
Cervical Spine Fusion of C4/C7 From Myelopathy 5241 20% Cervical Radiculopathy and Myelopathy, Status Post
Multilevel Cervical Dlskectomy And Fusion, C4-C7		 5241 20% VA C&P near time of SEP (<12 mos)
No Entry
Right Arm Weakness and Bilateral Upper Hyperreflexia 5305 10%
Hyperreflexia, Lower Extremities 5299-5284 Deferred
Neuropathy, Right Lower Arm and Hand 8515 10%
Neuropathy, Left Lower Arm and Hand 8515 10%
Other x 0 (Not in Scope)
 Other x 5
Combined: 20%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) -not in evidence, but extracted from a VA database printout indicating a rating dated 200 50727 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The VA Compensation and Pension (C&P) exam and resultant VARD dated 27 July 2005 were not available in evidence before the Board and could not be located after appropriate inquiries. Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case.

Cervical Spine Fusion. This right hand dominant CI developed right shoulder pain with numbness and weakness of the right arm in August 2003. This was initially felt secondary to an injury to the right rotator cuff of the shoulder. A magnetic resonance imaging (MRI) of the right shoulder on 9 February 2004, revealed no tear of the rotator cuff mechanism, but tendinitis of the tendons of two shoulder muscles. On medical (PMR) evaluation on 12 February 2004, the CI now noted difficulties with fine motor function in his right hand and increased muscle weakness in the right arm. Nerve conduction studies revealed a right carpel tunnel syndrome and some evidence suggestive of a neuropathy of cervical spine origin. MRI of the cervical spine on 17 February 2004, revealed multiple level lower cervical spine bulging discs with severe foramina stenosis and some spinal cord compression. On neurosurgical evaluation performed on 19 February 2004, bicep strength in the right upper arm was reduced (4/5) with some clinical signs of an early myelopathy affecting the lower extremities from cord compression (Clonus, Babinski). Gait and lower extremity at this time were normal. The CI underwent successful multilevel (C4-5, C5-6, C6-7) removal of discs and spinal fusion over these levels with screws, plates and autologous bone grafts on 19 March 2004. At the time of surgery, the disease had progressed with the CI reporting weakness not only in his right arm, but also in his legs with difficulty walking, and frequent episodes of falling down. On post-operative physical therapy (PT) evaluation on 17 May 2004, the CI reported neck pain and some balance problems. On examination, the gait was slow but steady without need for assistive devices. Range-of-motion (ROM) of the cervical spine was reported decreased by 50% (Normal: 45 degrees); motor strength in the right arm was decreased (biceps, -4/5) compared to the left. Lower extremity strength was bilaterally normal. Sensory Organization and Balance Tests, performed by PT on 20 May 2004, were normal. On this exam the CI was able to go from sitting to standing without difficulty. At this time the CI reported stopping “all his medications” and that his main problems were his lower back and hip. The CI denied bowel and bladder difficulties. On the DD Form 2808, Report of Medical Examination, for the MEB on 3 June 2004, ROM of the cervical spine was reported as “decreased.” Examinations of the upper and lower extremities and neurologic exams were recorded as normal. On a PT evaluation, performed for the MEB on 4 June 2004, the CI reported numbness in his right hand and digits, improvement in his balance and that his neck was doing “fine.”
On physical exam, gait was slow but steady. Active ROM of the cervical spine was 12 degrees forward flexion (FF) limited by pain. The examiner opined that the CI was “not likely to gain further neck ROM.” Overall motor strength of the right arm was normal (5/5) except for the biceps (4/5); triceps (4+/5), and deltoid (4+/5) muscles. Strength of the left upper extremity and bilateral lower extremities and the right wrist and hand muscles was normal. Repeat balance studies were normal. At the MEB/narrative summary (NARSUM) evaluation on 14 June 2004, 11 months prior to separation, the CI reported episodes of falling down and weakness in his upper extremities and difficulty with fine manual dexterity. The MEB physical exam noted only hyper-active reflexes in the upper and lower extremities. The remainder of the examination was reported as “normal” with a well-healed cervical incision.

As noted above, a VA C&P exam was performed between July 2004 and July 2005 and was not available to the Board. The record in evidence contained a VA data base printout of a VARD dated 27 July 2005, 2 months after separation, which the Board presumed was based on this examination. This will be discussed below. A C&P neurological exam was scheduled for 23 September 2005, but did not occur due to cancellation. An MRI of the cervical spine, obtained on 31 October 2007, revealed a small disc with resolution of the preoperative spinal nerve compression. A C&P exam (spine) performed on 20 August 2009, 51 months after separation, was not available to the Board. Data from this exam, however, were quoted in the VARD of 11 January 2010 which is in the record. Neck datum quoted was: FF of the cervical spine of 25 degrees with pain. The Board noted the first remote C&P exam in the record for direct review by the Board to have occurred on 20 October 2009, 52 months after separation. On this examination no ROM of the cervical spine was recorded.. Strength and reflex exams of all extremities were normal. A nerve conduction study dated 5 November 2009, appended to this exam, revealed no evidence of a cervical neuropathy, but evidence of a nerve impediment at the right elbow (cubital tunnel syndrome). At this time, the CI was working full-time in a custodial job which he had held since year 2000. The examiner referenced a prior neurosurgical consultation, obtained 14 November 2007, which reported no clinical evidence of a cervical neuropathy.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the neck condition 20% code 5241 (spinal fusion) citing forward flexion of 22 degrees on passive ROM. Under this code a rating of 20% requires forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. A higher rating of 30% requires forward flexion of the cervical spine of 15 degrees or less. As noted above, the relevant VA C&P exam was not available to the Board for review. A VA data base printout of a VARD dated 27 July 2005, 2 months after separation, and presumably based on this examination, rated the spine condition 20%, for cervical radiculopathy and myelopathy, and an additional 10% for right arm weakness and hyper-reflexia and 10% for right lower arm and hand neuropathy. This rating of 20% for the spine was continued on a subsequent VARD 5 years after separation. The Board undertook an evaluation of the cervical spine condition.

The Board noted the active ROM of 12 degrees from the NARSUM evaluation, but that the ROM of the neck was reported as decreased only 50% (20 to 25 degrees) approximately 3 weeks prior with the CI taking no pain medication. The Board found no explanation for this disparity. The Board noted the statement on PT examination for the MEB on 14 June 2004 that the CI would likely not achieve improved ROM of the cervical spine beyond 12 degrees, but agreed that this was not substantiated by subsequent evaluations. The Board noted the rating of 20% by the VA in the VARD of 27 July 2005. The Board presumed that this reflected the results of the missing C&P evaluation. The Board agreed that a rating of 20% for the cervical spine IAW VASRD §4.71a reflected either 1) an active ROM of 15 to 30 degrees under ROM criteria; 2) an incapacitation of 2-4 weeks under code 5243 (Incapacitation); or 3) a presence of a neuropathy IAW VASRD §4.123. The Board noted that this VARD included ratings for both motor and sensory neuropathies in addition to the 20% rating for the spine.
The Board found no evidence of episodes of incapacitation to support a 20% rating under code 5243. The Board, therefore, concluded that the 20% rating reflected the ROM of the cervical spine of 15 to 30 degrees IAW §4.71a. The Board consensus was that this was consistent with the clinical evidence in the record before separation and with subsequent remote evaluations. The Board concluded that the record reasonably supported a rating of 20% for the neck condition for decreased ROM at the time of separation.

The Board found no other appropriate codes for consideration. The Board noted the PEB to combine two other conditions diagnoses from the MEB in its adjudication. The Board agreed that both were part and parcel of the neck condition and undertook review to determine if either separately was unfitting and subject to additional rating.

Myelopathy and Neuropathy. The Board agreed the CI had both a peripheral neuropathy in the upper arm and a myelopathy in the lower extremities which resulted from the neck condition. These improved after surgery. Nerve conduction studies after surgery revealed no residual cervical neuropathy. A referenced neurosurgical evaluation 2 years after separation found no clinical evidence of cervical neuropathy. The upper extremity neuropathy was manifest by mild weakness in the right upper biceps muscle without muscle atrophy. Overall arm strength was rated as normal. The Board agreed that although this was the dominant arm, this mild improving weakness would have not rendered the CI unfit for duty per se. The Board concluded, therefore, that this condition could not be recommended for additional disability rating. The Board noted the reports of the CI of weakness in his right hand and difficulty performing digital tasks. The Board agreed that this condition was mild and was related, not to the neck condition, but to the mild carpel tunnel condition, documented on nerve studies before surgery, and after surgery, when evidence of a cervical neuropathy and myelopathy had resolved. The Board agreed that a carpel tunnel syndrome condition was not in the MEB or PEB and was, therefore outside the purview of this Board for review. The Board noted the mild motor weakness (myelopathy) intermittently reported in the right leg and subjective reports by the CI of instability and falling down. In view of the normal gaits and repeated normal Sensory and Organizational Balance testing studies, , the Board unanimously agreed that this condition had resolved after surgery and would not have rendered the CI unfit for duty per se. The Board concluded, therefore, that this condition could not be recommended for additional disability rating.

Hyperreflexia (actively responding reflexes when tested on examination). The Board unanimously agreed that reflexes are a clinical diagnostic finding on physical examination, which, while suggesting the presence of a neuropathy or myelopathy, are of no functional significance per se and would not have rendered the CI unfit for duty. The Board concluded, therefore, that this condition could not be recommended for additional disability rating. 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 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 neck condition and IAW VASRD §4.71a, 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 re-characterization of the CI’s disability and separation determination.


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131007, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record






                          
XXXXXXXXXXXXXXXXXX
President
DoD 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 , AR20150008352 (PD201301823)

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 and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:




Enc l                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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