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AF | PDBR | CY2013 | PD-2013-02307
Original file (PD-2013-02307.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02307
BRANCH OF SERVICE: ARMY  BOARD DATE: 20140822
SEPARATION DATE: 20040728


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty 1LT/O-2(E) (66E/Perioperative Nurse) medically separated for neck and right knee conditions. The conditions could not be adequately rehabilitated to meet the physical requirements of his Officer Area of Concentration (AOC) or satisfy physical fitness standards. He was issued a permanent P3U3L3 profile and referred for a Medical Evaluation Board (MEB). The neck conditions, characterized as “cervical spinal cord injury,” “severe cervical stenosis with subsequent C3-7 laminoplasty,” “myelopathy secondary to myelomalacia of cervical cord,” “upper extremity radiculopathy,” “chronic neck pain,” and “keloid” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “spinal fusion post C3-7 laminoplasty for congenital narrowing of the spinal canal” and “chronic knee pain” as unfitting, rated 20% and 0% respectively with likely application of the US Army Physical Disability Agency (USAPDA) pain policy in regards to the right knee condition. An Informal reconsideration PEB convened and affirmed the original PEB finding. The CI made no appeals and was medically separated.


CI CONTENTION: “VA code 5241 8510 spinal fusion with a history indication of a congenital narrowing of the cervical spinal cord resulting in neurological symptoms. Diagnosed as myelopathy secondary myelomacia. Soldier had C3-C7 spinal fusion with residuals of chronic neck pain and 4/5 right triceps strength. Further physical exams notes flexion to 20 degrees with pain. Rated at 20% using 8510 criteria as muscle strength is 4/5. Soldier has over 8 years of active duty, thus this condition is ratable although it was an EPT condition. (MEB diagnosis 1-8) 2. VA code 5099 5003 chronic knee pain with history of surgery in 1996. Narrative summary (NARSUM) supplied pharmacy record notes last pain prescription was over 3 months ago. Physical Exam as reported on SF Form 93 is within normal except for old scar from surgery. Ranges of motion are essentially within normal. Rated at 0% for pain. (MEB diagnosis #6).”

His complete submission is at Exhibit A.


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 ratings for the unfitting neck and right knee conditions are 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.


RATING COMPARISON :

Service Recon IPEB – Dated 20040514
 VA - (~3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Spinal Fusion Post C3-7 Laminoplasty… 5241-8510 20% Radiculopathy, Right Upper Extremity with Carpal Tunnel Syndrome and Triceps Muscle Atrophy (Major) 8513 40% 20041109
Degenerative Disc Disease , Stenosis and Myelopathy, Cervical Spine S/P C3-7 Laminoplasty w/Right C7 Nerve Root Decompression 8010-5243 20% 20041109
Radiculopathy Left Upper Extremity (Minor) 8513 20% 20041109
Chronic Knee Pain 5099-5003 0% Chronic Right Knee Strain S/P Partial Menisectomy 5261 10% 20041109
Other x 0 (Not in Scope)
 Other x 11 (Not in Scope) 20041109
Combined: 20%
 Combined: 90%
Derived from VA Rating Decision (VA RD ) dated 200 50112 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Neck Condition. The CI is right hand-dominant and his occupation is a nurse. Absent direct trauma, he developed neck pain associated with pain/burning in his right upper extremity and decreased fine motor control in his right hand in early 2001. His work involving patient care activities worsened his painful symptoms. Despite physical therapy and other conservative treatment modalities, his symptoms remained. Radiologic studies revealed multi-level cervical (neck) degenerative arthritis as well as moderate to severe spinal canal stenosis throughout the mid-cervical spine and associated with myelomalacia (softening of the spinal cord). His diagnosis was consistent with cervical pain with myelopathy (refers to a pathology of the spinal cord). In June 2003, he underwent a C3-7 laminoplasty (surgical opening of bone around the spinal cord as to relieve cord pressure). Post-operatively his neck pain persisted as well as weakness in his right arm; specifically with his right tricep muscle. He resumed physical therapy and was referred for an MEB.

The NARSUM (performed 8 months prior to separation) indicated that the CI could no longer lift any objects heavier than 10-15 pounds and reports severe limitations in any work environment. The PE revealed decreased tricep strength (4/5), and decreased cervical range-of-motion (ROM). The final diagnoses included neck spinal cord injury with severe stenosis, severe pain and severe radiculopathy associated with myelomalacia and status post (s/p) surgical intervention. The examiner noted that the CI “…will require severe lifestyle limitations and alterations to function in an environment” and “…will lead his lifelong course of disability and work limitations secondary to his cervical spinal cord damage, which is permanent.” The commander’s statement included the CI’s duty limitations and noted, “[His] ability to adequately perform [his] duties in light of current condition is questionable.” His permanent profile noted a diagnosis of cervical spinal cord injury, s/p laminoplasty with lifting restrictions no greater than 30 pounds.

At the VA Compensation and Pension (C&P) exam (performed 3 months after separation), the CI reported neck pain, right greater than left arm weakness, and spasms. The physical examination revealed decreased cervical ROM with spasms, right arm muscular weakness at 4/5 scale (bicep, tricep, and brachioradialis) and decreased right-sided handgrip. Repetitive activities of the right upper arm caused a reduction in endurance and increased fatigue and weakness. His diagnosis remained unchanged. The examiner cited an inability to predict an amount of major [functional] impact from the CI’s condition. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

DOS 20040728
Cervical ROM
(Degrees) 		MEB ~8 Mo. Pre-Sep
(20031130)
VA C&P ~3 Mo. Post-Sep
(20041109)
Flex (45 Normal) 20 20
Extension (45) 40 10
R Lat Flexion (45) 20 -
L Lat Flexion (45) 20 -
R Rotation (80) 45 15
L Rotation (80) 65 15
Combined (340) 210 -
Comment muscle weakness muscle weakness; Deluca +
§4.71a Rating 20% 20%

The Board directed attention to its rating recommendation based on the above evidence. The PEB’s 20% primary analogous rating was consistent with VASRD §4.124a (neurological conditions) criteria for incomplete paralysis secondary to cervical spinal disease as well as the presence of right upper extremity atrophy. The VARD cited the same neurologic rating of the upper extremity radicular muscles.

Even though the PEB’s analogous coding and rating of 20% under VASRD application of the Diseases of the Peripheral Nerves is equivalent to the same rating if it was coded under 4.71a ROM impairment, the Board still considered whether a separate and additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the residual upper extremity radiculopathy at separation. Firm Board precedence requires a functional impairment tied to fitness to support a recommendation for an addition rating of a peripheral nerve if the original rating was for ROM. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The sensory component in this case has no functional implications and, only minimal (4/5) motor weakness was in evidence.

Board members did consider other neurological codes rating levels in 8510, 8511, 8512 or 8513 (upper, middle, lower, and or all radicular groups) all consistent with a rating of 20% (mild-dominant arm) and 40% (moderate-dominant arm). In determining the severity of the CI’s condition, Board members acknowledged and considered the MEB examiner’s comments in regards to the requirement of “severe lifestyle limitations” and “will lead to a lifelong course of disability,” but concluded that the totality of symptom evidence at the time of separation was best classified as “mild” in severity and thus corresponded to a 20% impairment level; equivalent to the current PEB rating. Additionally, application of §4.40 (functional loss) was supported by a decrease in muscle strength of the upper extremity. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB’s 20% impairment rating for the cervical spine condition.

Right Knee Condition. The CI had a right partial lateral menisectomy in 1996 and had no further problems until the summer of 2002 when he developed right knee pain worsened with running and squatting. Radiology tests revealed a lateral meniscal tear with cyst formation. Orthopedics also diagnosed chondromalacia and recommended physical therapy for muscle strengthening exercise.

The NARSUM addendum (performed 4 months prior to separation) noted that the CI’s right knee pain was exacerbated with squatting, kneeling, stair climbing, and car riding. The physical exam revealed near normal ROM, crepitus and tenderness about the patellar area. All instability tests were negative. His diagnosis remained right knee pain, consistent with patella-femoral pain syndrome (aka chondromalacia). The case file contained a single “permanent” right knee profile dated 1996 corresponding to his initial knee surgery. Temporary profiles were evidenced for the right knee with a 1 January 2003 expiration date; 19 months prior to separation. A thorough review of the service treatment record did not reveal any renewal of the knee profile. Additionally, the knee condition was not specifically implicated in the commander’s statement. A physical therapy report dated 12 May 2004 (10 weeks prior to separation) noted that active ROM of the right knee was “within normal limits” with pain at end range. There was no comment in regards to instability. At the VA C&P exam, the CI’s surgical history was adequately summarized. The physical exam was brief and revealed limited ROM without laxity and a normal gait. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

‘
Right Knee ROM
(Degrees)		 MEB Addendum ~ 4 Mo. Pre-Sep
(200 40330 )
PT ~ 2.5 Mo. Pre-Sep
(200 40512 )
VA C&P ~3 Mo. Post-Sep
(20041109)
Flexion (140 Normal) 135within normal limits’ 90
Extension (0 Normal) 5 10
Comment tenderness; crepitus painful motion negative Deluca ;
normal gait
§4.71a Rating 10 % 10% 10 %

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 0% rating under an analogous 5003 code (degenerative arthritis). Using code 5261, the VA assigned a 10% rating citing limited extension to 10 degrees. Board members first considered the probative value between the pre-separation MEB and physical therapy examinations and the post-service VA examination. The ROM values reported by the VA examiner are significantly worse than those reported by the physical therapy and MEB examiner. There was no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements. While ROM limitations may have progressed over time, there was no evidence in the record from which to conclude that the severity at separation approached that portrayed by the VA measurements. Board members carefully considered and deliberated as to the accuracy of the VA’s “normal gait” finding in the presence of limited lower extremity extension to 10 degrees. Member consensus was that such findings were inconsistent and mutually exclusive as to their physical occurrence and therefore, concluded that preponderant probative value should be assigned to the above charted pre-separation physical therapy and MEB examinations.

The Board found that the ROM findings were non-compensable and that there was no evidence to support additional rating for any joint instability. Members agreed that sufficient evidence of painful motion (to include crepitus) was supported under the 5003 coding pathway for a minimum rating IAW §4.59. Board members also considered application of §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled,” and clearly, the presence of painful motion was noted in this condition. There were no other available alternative joint or analogous coding options which were applicable in this case. Board members agreed that §4.59 or §4.40 was supported by the evidence to achieve the minimum compensable rating of 10%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right knee 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. As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the right knee condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the cervical spine condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 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; 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
Spinal Fusion Post C3-7 Laminoplasty 5241-8510 20%
Chronic Knee Pain 5099-5003 10%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131112, 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, AR20150005546 (PD201302307)


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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