RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXX				BRANCH OF SERVICE: ARMY 
CASE NUMBER:  PD0900160				SEPARATION DATE: 20021106
BOARD DATE: 20110310				
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SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG (95B, Military Police) medically separated from the Army in November 2002.  The medical basis for separation was low back pain, neck pain, and left shoulder pain.  At his Medical Evaluation Board (MEB), the low back pain, cervical pain (with bilateral radicular symptoms) and left shoulder pain were determined to be medically unacceptable IAW AR 40-501.  Three other conditions (palpitations, atrial fibrillation, and left foot pain) were forwarded as medically acceptable conditions.  The CI was referred to the Physical Evaluation Board (PEB) and was found unfit for continued military service due to low back pain, neck pain and shoulder pain.  The low back pain and neck pain were rated 10% each  and the left shoulder pain was rated 0%.  The CI accepted the PEB findings, and was separated at 20% combined disability using the Veterans Administration Schedule for Rating Disabilities (VASRD) and applicable Army and DoD regulations. 
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CI’s CONTENTION:  The CI states, “I have 4 disqualifying conditions that should be rated, as these conditions made me unfit for duty as established by law: 1) L5-SI disc herniations and discectomy; 2) C5-C6 herniation pain with bilateral radicular symptoms; 3) Impingement, post-operative left shoulder pain; and 4) Left foot sesamoid bone fracture, post-sesamoidectomy (chronic left foot pain).”
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RATING COMPARISON:

Army PEB – dated 20020716	VA ( 1 mo. Pre-Separation) – All Effective 20021107	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5299-5295	10%	L5/L4 Disc Herniation	5292	20%	20021018	
Neck Pain	5290	10%	C5/C6 Herniation	5290	20%	20021018	
Left Shoulder Pain	5099-5003	0%	Impingement (L) Shoulder	5099-5019	10%	20021018	
Atrial Fibrillation	Not Unfitting/ Not Ratable	Palpitations	7010	0%	20021018	
Palpitations						
Left Foot Pain		Left Foot Sesamoid Fracture	5284	0%	20021018	
↓No Additional MEB Entries↓	R Knee Retropatellar Pain	5099-5019	10%	20021018	
	L Knee Retropatellar Pain	5099-5019	10%	20021018	
	Scar from Dog Bite	7805	0%	20021018	
	Bursitis Right Shoulder	5201	30%	20021018	
	Left Fourth Finger Problem	NSC	
TOTAL Combined:  20%	TOTAL Combined: 70%	
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ANALYSIS SUMMARY:

Low Back Pain.  The CI injured his back while moving furniture in September 1995.  Magnetic resonance imaging (MRI) in October 1995 revealed left paracentral disc herniation at L5-S1, displacing the left S1 nerve root.  Despite treatment, the CI continued to experience low back pain and subsequently underwent three more MRIs and numerous evaluations.  Conservative management for his back included activity modification, non-steroidal anti-inflammatory drugs, physical therapy (PT), and strengthening exercises.  He was evaluated by neurosurgery in March 2001, but the planned surgery was cancelled due to the surgeon transferring to another base.  In January 2002, he was having increased back pain and was sent to a German neurosurgeon, where he had a L5-S1 discectomy.  After the surgery, the CI reported a 75% decrease in pain, but he still experienced some pain in the left buttock and small toe.  He could not lift objects heavier than 25 lbs. without having pain.  He had trouble stretching and bending over.  He was able to run and ruck, but as soon as he did he experienced pain that prevented him from performing other activities for the rest of the day.  He had difficulty firing in the prone position, and after shooting had pain for the rest of the day.  He was able to continue in his military occupational specialty after the surgery, but he had pain whenever he would sit or stand for periods longer than two hours.

The 1 July 2002 VASRD was in effect at the time of the CI’s separation from service.  In 2002, lumbar spine range of motion (ROM) impairment was judged to be slight (10%), moderate (20%), or severe (40%), based upon the rater’s opinion regarding degree of severity.  In this case, the CI had a MEB examination on 3 June 2002 which demonstrated full thoracolumbar ROM, with no limitation of motion.  Four and a half months later on 18 October 2002, he had a VA compensation and pension (C&P) goniometric ROM evaluation, which was just three weeks prior to separation.  The Board felt that the VA exam had greater probative value because it was much closer to separation.  The results of his back exams are summarized in this table:

Thoracolumbar	Separation Date:  20021106	
Goniometric ROM	MEB – 20020603	VA C&P – 20021018	
Flexion (90⁰ normal)	90⁰	46⁰	
Combined (240⁰ normal)	240⁰	229⁰	
Comments	5 mos. Pre-separation	3 wks. Pre-separation	

The Board evaluated the CI’s limitation of motion, with application of the 2002 VASRD coding and rating criteria, not the current coding and rating criteria.  The Board unanimously agrees that the 5292 code would be the most appropriate code for the CI’s limitation of lumbar spine motion.  After careful review of all available evidentiary information, the Board unanimously recommends a disability rating of 20% for low back pain IAW VASRD 4.71a.  It is appropriately coded 5292, and meets criteria for the 20% (moderate) rating.

Neck Pain.  The CI injured his neck performing weight training in July 1998.  He was doing 25 pound lifts when he felt a sharp pain in his neck.  Within three weeks, he was experiencing radicular symptoms going down both arms into the thumb, index and middle fingers.  An MRI was done in July 1999 and revealed loss of disc height at C5-C6.  The CI was offered a fusion of the C5-C6 vertebrae, by neurosurgery at Madigan Army Medical Center.  However, the CI was transferred to another base before the surgery could be performed.  By January 2000, the CI had worsening of the neck pain when wearing kevlar and load bearing equipment (LBE).  An MRI at that time revealed a C5-C6 herniated disc, and he had no improvement with cervical steroid injection.  In March 2000, he completed a course of PT, involving cervical traction.  In August 2001, a third cervical MRI was performed and he was re-evaluated by neurosurgery.  Neck surgery was offered to the CI, but not performed as the surgeon was transferred.  Since then, the CI has not felt confident that surgery would help him, and he has declined any further surgical management.  The CI has still experienced pain, numbness, and tingling going down both arms.  The pain is most noticeable in the left arm around the elbow region.  He reported being awakened at night with pain and difficulty feeling his fingers in the morning.

As mentioned above, the 1 July 2002 VASRD was in effect at the time of the CI’s separation from service.  The MEB orthopedic neck exam on 3 June 2002 revealed excellent forward flexion, but some limitation of neck motion in other planes of movement.  The pre-separation VA examination documented pain with motion as well as some tenderness to palpation of the lower cervical spine.  No radicular signs were noted and strength was 5/5 for both upper extremities.  The CI’s two goniometric ROM neck evaluations are summarized in this table:

Cervical Spine	Separation Date:  20021106	
Goniometric ROM	MEB – 20020603	VA C&P – 20021018	
Flexion (45⁰ normal)	90⁰	44⁰	
Combined (340⁰ normal)	195⁰	288⁰	
Comments	No mention of pain	Pain with motion	

The Board evaluated the CI’s limitation of motion, with application of the 2002 VASRD coding and rating criteria, not the current coding and rating criteria.  The Board unanimously agrees that the 5290 code would be the most appropriate code for the CI’s cervical spine condition.  After careful review of all available evidentiary information, the Board unanimously recommends a disability rating of 10% for the painful neck condition.  It is appropriately coded 5290 IAW VASRD 4.71a and meets criteria for the 10% (slight) rating.  The Board then directed its attention to the issue of cervical radiculopathy.  The CI clearly had a history of subjective upper extremity complaints (pain, numbness, and tingling).  However, his muscle strength was normal, and there was no motor impairment.  Furthermore, there was no clearly documented evidence that his radicular symptoms caused any significant interference with the performance of required military duties.  All evidence considered, the Board cannot find sufficient evidence to support recommending cervical radiculopathy as an additional unfitting condition.    

Left Shoulder Pain.  The CI had left shoulder pain in 1985 which he felt was due to wearing LBE and a pistol belt.  He had increasing pain in February 1994.  His X-rays of the left shoulder were unremarkable.  The CI reported that the pain in the shoulder also radiated down the left arm. In February 1997, MRI revealed no pathology in the glenohumeral joint, but possible shoulder impingement syndrome and possible pathology in the acromioclavicular (A-C) joint.  He had several injections into the shoulder, with no improvement.  In May 1997, he underwent left distal clavicle resection.  He had some improvement post-operatively, but over time the pain returned.  In June 1999, he was re-operated on and had a spike of bone removed from the A-C joint.  He continued to have left shoulder pain which was worse when he wore his LBE, pistol belt or rucksack.  He could not perform pushups and had difficulty firing a rifle.  His goniometric shoulder ROM evaluations are summarized below:

Left Shoulder	Separation Date 20021106	
Goniometric ROM	MEB – 20020603	VA C&P – 20021018	
Fwd Flexion (180⁰ normal)	160⁰ 	140° 	
Abduction (180⁰ normal)	Not measured	125⁰ 	
Comments	Pain not clearly stated	Pain with motion	

The Board examined all of the evidentiary information available.  Based on ROM alone, the left shoulder is essentially non-compensable, using the VASRD §4.71a shoulder and arm codes (5200 to 5203).  However, the VASRD makes it clear that painful motion of a major joint warrants a rating of 10% IAW §4.40 and §4.59.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a separation rating of 10% for left shoulder pain.  It is appropriately coded 5099-5019, and meets criteria for the 10% rating.  
  
Left Foot Condition.  The CI had a tibial sesmoidectomy in August of 1999, with good results.  The MEB foot exam was normal.  The VA C&P exam documented a full weightbearing, non-antalgic gate.  The left foot condition was not profiled and was not implicated in the commander’s statement.  The left foot condition was reviewed in detail by the action officer, and was considered by the Board.  There was no indication from the treatment record that this condition significantly interfered with the performance of CI’s military duties.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting reversal of the PEB fitness adjudication for the left foot condition.

Other PEB Conditions.  Atrial fibrillation and palpitations were judged to be within AR 40-501 standards, were not profiled, and were not identified as disabling in the commander’s statement.  All evidence considered there is not reasonable doubt in the CI’s favor supporting reversal of the PEB fitness adjudication for these two cardiac conditions.

Remaining Conditions.  Nasal deformity, numbness in hands, and several additional conditions were documented in the Disability Evaluation System (DES) file.  None of these conditions were clinically significant during the MEB/PEB period, carried permanent duty limiting restrictions, or were implicated in the commander’s statement.  These other conditions were all reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating.  Additionally, several other conditions were service connected by the VA, but were not documented in the DES file.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  Therefore, there is no reasonable basis for recommending any additional unfitting conditions for separation rating.
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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, Army PEB reliance on the USAPDA pain policy may have been operant in this case and the CI’s conditions were adjudicated independently of that policy by the Board.  In the matter of the low back pain IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 20%, coded 5292.  In the matter of the neck condition IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 10%, coded 5290.  In the matter of the left shoulder pain IAW VASRD §4.71a, §4.40, and §4.59, the Board unanimously recommends a disability rating of 10%, coded 5099-5019.  In the matter of the left foot pain, atrial fibrillation, palpitations, or any other conditions eligible for Board consideration, the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.
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RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, and that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Pain	5292	20%	
Neck Condition (Pain and Subjective Radicular Symptoms)	5290	10%	
Left Shoulder Pain	5099-5019	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20090201, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.