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AF | PDBR | CY2013 | PD2013 00299
Original file (PD2013 00299.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxx   CASE: PD 13-00299      
BRANCH OF SERVICE: Army          BOARD DATE: 20131205
SEPARATION DATE: 20080312                


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (21U, Topographic Analyst) medically separated for neck pain. He first injured his neck in 2006 during martial arts training and underwent a cervical disc fusion that same year. The neck pain could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB). The neck condition, characterized as “chronic neck pain…”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one condition, right shoulder pain, as medically acceptable. The PEB adjudicated “C5-6 fusion with residual neck pain…” as unfitting, rated 20% referencing AR 635-40. The CI made no appeals and was medically separated.


CI CONTENTION: “The range of motion and constant neck pain from neck fusion effect daily living. A spine injury affects the entire body causing pain and other parts of the body to be out of wack. PTSD was never considered as a part of the Med board though anxiety, depression and signs of PTSD are present in the Military Medical records. PTSD effects daily living, sleeping, relationships the lack of ability to work or go to school. VA did give a rating for PTSD but is not accurate. It is worse than the percentage given. VA also recognized tinnitus. Knees are also problematic because of 70+ jumps.”


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. In addition, the CI was notified by the Army that his case may eligible for review of the military disability evaluation of any mental health condition in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose mental health diagnoses were changed or eliminated during that process. Since the CI responded to this mailing, it is presumed that he has elected review by the PDBR for the mental health condition although he did not specifically contend for it on the DD Form 294. In accordance with Secretary of Defense directive for a comprehensive review of mental health diagnoses that were changed during the Disability Evaluation System (DES) process, the applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting mental health diagnoses in accordance with the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.129 and §4.130. The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR. The Service rating for the unfitting neck condition and any mental health (MH) conditions are addressed below; 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 Service Board for Correction of Military Records.
______________________________________________________________________________

RATING COMPARISON :

Service PEB – Dated 20080805
 VA - (~8 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
C5-6 Fusion with Residual Neck Pain… 5241 20% S/P Cervical Fusion on C5-6… 5242 10% 20081028
Right Shoulder Pain Not Unfitting No VA Entry
No Additional MEB/PEB Entries
 Other x 3
Combined: 20%
 Combined: 10%
Derived from VA Rating Decision (VA RD ) dated 20090518 .


ANALYSIS SUMMARY:

Neck Condition. As noted above the CI sustained a neck injury in 2006, MRI 2 August 2006, demonstrated degenerative joint disease at the C3-C4 level and a herniated disc at the C4-C5 level impinging on the spinal cord. Neck surgery with removal of the disc and fusion of the lower cervical spine with bone and surgical plates was performed 6 October 2006. Post operatively the CI experienced continued neck pain without radiation or weakness in the arms. On occupational therapy exam for the MEB, 21 June 2007, the CI reported neck pain but described no functional implication from the condition. At the MEB/NARSUM evaluation 11 July 2007, seven months before separation, the CI reported neck pain and stiffness with prolonged standing and sitting. On examination flexion of the cervical spine was reduced to 20 degrees with pain. Motor, sensory and reflex exams were normal. At the VA Compensation and Pension (C&P) exam, 28 October 2008, performed seven months after separation, the CI reported the ability to climb stairs, drive a car and push a lawn mower; he noted difficulty ‘gardening’. On examination posture and gait were normal and the neck was described as ‘supple’. Forward flexion of the neck was 40 degrees without DeLuca criteria. Motor, sensory and reflex exams were normal. X-rays of the neck demonstrated surgical plates in proper position with healing.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the neck condition 20%, code 5241 spinal fusion, citing the reduced range of motion (ROM) of the cervical spine to 20 degrees IAW 4.71a. Under this code a rating of 10% requires a reduction in neck flexion to 40 to 30 degrees; a 20% rating requires a reduction to 30 to 15 degrees and a 30% rating requires a reduction to 15 degrees or less. The VA rated the neck condition 10% code 5242, degenerative arthritis of the spine, citing flexion of the neck of 40 degrees. The Board agreed that the neck condition met the criteria for painful motion IAW §4.40 for a 10% rating. The Board agreed that no higher rating than 20% was achievable under ROM coding. There was no evidence of ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory exams were normal. There was no evidence of incapacitating episodes for a higher rating under 5243, intervertebral disc syndrome/incapacitation. The Board found no other applicable VASRD codes for consideration.
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the neck condition.

Contended MH Conditions. The Board’s main charge is to review the record and assess whether any MH condition was unfitting and should be considered for disability rating. 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 Board noted the NARSUM, MEB and PEB forms to contain no MH inclusions. On the DD Form 2807 (Report of Medical History) no MH diagnosis was included in the Examiner’s summary. On DD Form 2808 (Medical examination) prepared for the MEB, the examiner reported a ‘History of Depression and PTSD’ but a normal psychiatry exam. On Post Deployment Health Assessment (PDHA) 11 February 2004, after the first tour of duty in Iraq, the CI reported seeing no wounded, killed or dead and having had no direct combat. He noted no nightmares, hyper vigilance or detachment form surroundings or others. On subsequent PDHA 14 February 2006, after the second Iraq tour, the CI noted feeling depressed, but not feeling “life was in great danger of being killed during deploy”. He further noted no nightmares, hyper vigilance, and thoughts of losing control or suicidal ideation. There are no further references to any MH condition in the service treatment record prior to separation and no entries which meet the DSM IV TR criteria for diagnosis of any MH condition to include PTSD. At the VA C&P exam, eight months after separation, application for PTSD was made to the VA, but determined to be NSC in the absence of service treatment records. No MH disorder was mentioned in the Commander’s statement, was profiled or was judged to fail retention standards. There was no indication from the record that any MH condition significantly interfered with satisfactory duty performance. The Board concluded that the preponderance of evidence in record did not support an unfitting determination for any mental health condition at the time of separation and that VASRD §4.130 and §4.129 are inapplicable in this case. After due deliberation in consideration of the preponderance of the evidence, the Board unanimously agreed that there was insufficient cause to recommend an unfitting status for any MH condition and so no additional disability ratings are recommended. The Board agreed that this applicant did not appear to meet the inclusion criteria in the Terms of Reference (TOR) of the Mental Health Diagnosis Review Project.


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. In the matter of the contended MH conditions, the Board unanimously agrees that it cannot recommend additional disability rating for any MH condition. There were no other conditions within the Board’s scope of review for consideration.
______________________________________________________________________________

RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION
 VASRD CODE RATING
Residual Neck Pain 5241 20%
COMBINED
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130509, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record


                          

         xxxxxxxxxxxxxxxxxxx, DAF
         President
         Physical Disability Board of Review


SFMR-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, AR20140003478 (PD201300299)


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:




Encl                                                  xxxxxxxxxxxxxxxxxxxxxxxx
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

.



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