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AF | PDBR | CY2013 | PD2013 01805
Original file (PD2013 01805.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1301805
BRANCH OF SERVICE: Army  BOARD DATE: 20140821
SEPARATION DATE: 20060213


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (13B/Canon Crew Member) medically separated for chronic neck pain. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent U3/L2 profile and referred for a Medical Evaluation Board (MEB). The chronic neck pain, characterized as “chronic neck pain secondary to herniated C6-7 disk” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded three other conditions (see rating chart below) as meeting retention standards. The PEB adjudicated “chronic neck pain secondary to multilevel degenerative disc disease (DDD) without radiculopathy” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting and not ratable. The CI made no appeals and was medically separated.


CI CONTENTION: “Even the VA immediately found them to be 50% at least.”


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 pain is addressed below. In addition, the Board considered the CI’s contention as encompassing all conditions as considered by the PEB and therefore will review the low back, hearing loss and depressive disorder conditions, all found by the PEB to be not unfitting. 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 IPEB – Dated 20051121
 VA - (3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Neck Pain 5299-5243 10% Chronic Neck Pain 5243 10% 20060520
Low Back Pain Not Unfitting Low Back Pain 5243 10% 20060520
Asymmetric Hearing Loss Not Unfitting Bilateral Tinnitus 6260 10% 20060520
Major Depressive Disorder Not Unfitting Adjustment Disorder 9440 NSC 20060518
Other x 0 (Not in Scope)
 Other x 12 20060520
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 60803 ( most proximate to date of separation [ DOS ] ).
VARD 20101103 increased DC 5243 (low back) to 20% from 20100416.


ANALYSIS SUMMARY: In response to the CI’s contention regarding VA ratings for his conditions, the Board 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 (DVA), operating under a different set of laws. The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. 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. The Board likewise acknowledges the CI’s implied contention for the conditions noted above which were determined to be not unfitting by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD, and based on the degree of disability evidenced at separation, will be recommended.

Chronic Neck Pain. The CI was initially evaluated in 2005 for chronic neck pain. Magnetic resonance imaging (MRI) and X-rays showed the presence of multi-level cervical DDD, degenerative joint disease, a herniated disc at C6-7 and congenital narrowing of the central canal (the space for the spinal cord.) Electro-diagnostic studies performed on 3 August 2005 were normal with no neurological impairment demonstrated. However, the CI was unable to meet duty requirements or wear a helmet. He was issued a U3 profile and referred for MEB. The narrative summary (NARSUM), dated 8 September 2005 (just over 6 months prior to separation), noted a history of neck pain since February 2005 when the CI noticed the onset of pain after lifting heavy boxes. Despite conservative treatment, he was not able to meet duty requirements or wear a helmet. The sensory, motor and reflex examinations were normal. The range-of-motion (ROM) was near normal with full ROM documented for flexion. At the MEB exam, the CI reported problems with his spine and the MEB physical examination documented limited ROM. At the VA Compensation and Pension examination performed 3 months after separation, the CI reported neck pain that flared with over-activity, but denied incapacitation. The ROM was slightly limited, but the value for flexion was not recorded; the sensory, motor, and reflex examinations were normal. Gait and contour were normal. Spasm was not present.

The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA both rated the neck condition at 10% and used the 5243 code, intervertebral disc syndrome, albeit analogously by the PEB. The Board considered that while there was painful motion recorded, the ROM was near normal. The CI had a normal neurological examination, normal gait, was without spasm and the contour was normal. Incapacitation was denied. The Board reviewed the evidence and found no route to a rating higher than the 10% adjudicated by the PEB and VA. 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 PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the major depressive disorder (MDD), low back pain and hearing loss were not unfitting. 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 back condition was profiled L2, while the hearing and MDD were profiled H1 and S1, respectively. The mental health condition was noted to be longstanding, to have existed prior to service and be recurrent, but to meet retention standards by the treating clinician. The back pain was noted by the commander as limiting duty and the CI was issued an L3 profile on 28 June 2005, over 7 months prior to separation, but then changed to the L2 profile noted above 5 months prior to separation. However, other than tenderness on the NARSUM examination and painful motion on the VA examination, both examinations were essentially normal including gait and ROM. Pathology was noted on lumbar X-rays and MRI, but he was not a surgical candidate. The VA noted that the hearing examinations were essentially unchanged between accession and separation. None of the conditions was judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was not a preponderance of performance based evidence from the record sufficient to determine that the PEB adjudication as unfitting was incorrect for any of these conditions. After due deliberation in consideration of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and so 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 neck condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended back pain, hearing loss, and major depression disorder conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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 20131024, 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 , AR20140019466 (PD201301805)

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

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