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AF | PDBR | CY2013 | PD-2013-02142
Original file (PD-2013-02142.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02142
BRANCH OF SERVICE: Army  BOARD DATE: 20140527
SEPARATION DATE: 20050819


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (63W/Wheel Vehicle Mechanic), medically separated for chronic neck pain. The CI could not meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB). The Informal Physical Evaluation Board (IPEB) adjudicated “chronic neck pain” unfit, rated 30% and placed the CI on the Temporary Disability Retired List (TDRL). The IPEB declared the chronic neck pain existed prior to service (EPTS) and aggravated by service. The finding was then reconsidered approximately 3 weeks later by the US Army Physical Disability Agency (USAPDA) at which point the IPEB determined a 10% deduction for EPTS, with subsequent final disability rating lowered to 20% for the CI’s chronic neck pain. The finding was revised for an administrative correction before being finalized approximately 2 months later. In making its disability determination, the IPEB invoked AR 635-40, B-10 and also likely applied the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “The amount of damage done to cervical vertebrae while on active duty rendered me nonfunctional and inoperable. The damage consisted of rupture of C5-5 with subsequent bone splinters embedding in my spinal cord. This resulted in an operation requiring replacement of plate and screws. All screws were unable to be removed, leaving 2 in the disc. New plate and 4 new screws were placed in vertebrae. This has left neck weak and without functional rotation.”


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 chronic neck condition is addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 Military Records. The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that 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. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.


 RATING COMPARISON :

Service USAPDA reconsidered IPEB
Dated 20050812
 VA - (4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Neck Pain S/P revision fusion 5241 20% Cervical Spinal Fusion S/P with Left Side Radiculopathy 5243 20% 20051217
Radiculopathy C5 Not Unfitting
MEB/PEB Entries not in scope x 5
 Other x 13 20051217
Combined: 20%
 Combined: 60%
VARD 20060221 (most proximate to Date of Separation)
 * VARD 20070601 increased 5243 (cervical spine fusion) to 30% from 20070126.


ANALYSIS SUMMARY:

Cervical Spine Condition. The right-handed CI had a cervical spine fusion in 1999 with complete recovery. On 15 February 2003, 2wo weeks prior to activation, the CI had an annual medical certificate in which the medical reviewer noted a history of cervical spine surgery with no restrictions. The physician wrote that the CI had no limitations to the performance of military duties and passed his Army physical fitness test. The CI stated that sit-ups sometimes bother him, and he would request a profile if needed. He had “free” range-of-motion (ROM) of the neck with “good” flexion, extension, and rotation. He was given a no limitation profile for upper extremities (U1). On 12 October 2003, while deployed in Iraq, a clinic note documented development of neck pain radiating down to left arm and fingers tingling. The CI was found to have a new C4-5 disk herniation and broken screws from his prior cervical spine surgery. The CI had a revision surgery of C5-C6 and C6-C7 fusion, with additional C4-C5 diskectomy and fusion with an iliac crest bone graft to the C6-7 non-union on 24 February 2004.

The narrative summary (NARSUM) dictated on 6 December 2004, 8 months prior to separation noted left-sided neck pain radiating down to his shoulder blade, no gait ataxia, negative Spurling’s test for radicular pain and limited ROM or flexion of “about” 30 to 40 degrees. Physical therapy ROM was performed on 30 September 2004, 11 months prior to separation. The ROMs were measured at flexion 17 degrees (rounded off to the nearest 5 per VASRD instructions to 15 degrees), extension 45 degrees, right lateral flexion 17 degrees (rounded off to 15 degrees), left lateral flexion 20 degrees, right rotation 20 degrees, left rotation 27 degrees (rounded off to 25 degrees). The PEB requested further goniometric ROM on 27 January 2005, which was performed by physical therapy on 8 February 2005, 6 months prior to separation. The measurements found cervical spine ROM of flexion 10 degrees due to mechanical restriction, extension 25 degrees limited by pain, left lateral flexion (side bend) 5 degrees limited by pain and right lateral flexion 5 degrees limited by pain, and left rotation of 10 degrees limited by pain and right rotation of 5 degrees limited by pain.

On a neurology MEB consultation, performed on 28 March 2005, 5 months prior to separation, the CI reported 80% improvement of his left arm and grip strength. He occasionally felt a heavy sensation of arm and grip weakness, 4-5 times per week lasting 5-60 minutes, without associated numbness or tingling. The daily neck pain responded to medication (narcotics) taken every day. Physical examination found normal muscle bulk and tone, without atrophy or fasciculations, normal power of the upper and lower extremities with abductor pollicis brevis 4+ strength (normal is 5, 4+ is almost normal), intact sensation of upper extremities bilaterally. There was a slightly antalgic baseline gait, with normal toe, heel and tandem gait. The neurologist found significant limitation of neck movement all severely limited to 10-15 degrees. The neurologist examiner wrote the mild bilateral carpal tunnel syndrome by recent electromyogram (EMG) was without persistent sensory symptoms by history. The EMG described in this consultation was performed on 10 November 2004, and found evidence of: left C5 radiculopathy involving only the posterior ramus; and bilateral median neuropathy (carpal tunnel syndrome) at or distal to the wrist, involving only the sensory fibers, mild.

At the VA Compensation and Pension exam performed on 17 December 2005, 4 months after separation, the CI reported constant neck pain, left arm numbness and tingling. Physical examination found a normal posture and gait, somewhat global weakness of his left hand and well healed surgical scars. There was normal 5/5 abductor pollicis brevis strength in both hands, and Tinel’s and Phalen’s tests for carpal tunnel syndrome were negative in both wrists. The examiner opined that there was no evidence of carpal tunnel syndrome and the left wrist symptoms were more likely from his neck. Cervical spine ROM was flexion 20 degrees, extension 10 degrees, right and left flexion 40 degrees and right and left rotation of 35 degrees.

The Board directs attention to its rating recommendation based on the above evidence. The Board took the approach of first determining the pre-activation (deduction) rating. The IPEB reconsideration on 12 August 2005 deducted 10% for the EPTS component of the CI’s cervical spine condition from the IPEB’s 30% rating on 25 May 2005. The Board’s authority for recommending a change in the service’s EPTS determination is not specified in DoDI 6040.44, but is considered adjunct to its DoD specified obligation to review fitness and rating recommendations. The Board may not make a new EPTS finding, but can recommend a change to an existing EPTS determination (affecting rating) if service-aggravation was determined. As with its consideration of rating determinations, the Board’s threshold for countering service EPTS determinations concerning rating is in accordance with the VASRD §4.3 (reasonable doubt) standard, as well as remaining adherent to the DoDI 6040.44 “fair and equitable” standard. There was a physical examination performed 2 weeks prior to activation, which did not describe ROM limitations, or occupational limitations due to the CI’s neck condition. The exam found the CI “fully fit.” The Board considered this to be a 0% rating under VASRD codes 5241 (spinal fusion) used by the PEB, or 5243 (intervertebral disk syndrome) used by the VA, which can both be rated under the same general rating formula for disease and injuries of the spine. The Board also deliberated on the spinal VASRD codes in effect at the time of the intake physical; in this case VASRD code 5290 (spine, limitation of motion of, cervical). The Board again found the description of “free” ROM of the neck, and “good” flexion, extension and rotation, as describing normal ROM, and not arising to the level of slight limitation of movement for a 10% rating. The Board took into consideration the USAPDA rationale with respect to the 10% EPTS finding; but determined this rationale did not address the CI’s functional status at the time of activation. The Board thus recommended a zero percent pre-activation rating (EPTS deduction).

The Board then turned its attention to the rating recommendation at the time of separation. The PEB’s combined rating (with a 10% EPTS deduction) was rated at 20% using the general rating formula for disease and injuries of the spine using code 5241 (spinal fusion); however the PEB rated the actual disability level of the CI’s cervical spine as 30%, based on criteria from the VASRD. There were no findings for a higher rating under code 5241 (spinal fusion). There were no incapacitating episodes for a higher rating under code 5243 (intervertebral disk syndrome). The Board found the radiating radicular pain component (C5 posterior ramus radiculopathy by EMG) was subsumed under the §4.71a code 5241 rating which states with “or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.” The Board considered whether additional or an alternate rating could be recommended under a peripheral nerve code for the associated bilateral carpal tunnel syndrome at separation. The Board did not find neurological deficits caused by the bilateral median nerve neuropathy found by EMG (carpal tunnel syndrome) for a higher rating above 30% as an alternate code at the time of separation. There was no evidence of a separately ratable functional impairment (with fitness implications) from the bilateral carpal tunnel syndrome and, the Board could not support a recommendation for an additional disability rating on this basis. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the cervical spine condition.


BOARD FINDINGS: 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 cervical spine condition, the Board unanimously recommends a disability rating of 30% (30% minus 0% EPTS rating deduction), coded 5241 IAW VASRD §4.71a.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Cervical Spine Condition 5241 30%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131024, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




        
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150002612 (PD201302142)
1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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