RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1300079
BRANCH OF SERVICE:  Army	BOARD DATE:  20130509
SEPARATION DATE:  20020226

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (91A/Medical Equipment Repair Technician) medically separated for pain in his low back and right shoulder.  The CI complained of right shoulder pain was reported as early as 1993, and was treated surgically in 1997; the low back pain (LBP) was first reported in 2000 and was treated with steroid injections and subsequent surgery in 2001.  Neither of these conditions could be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards.  He was therefore issued a permanent L3 and referred for a Medical Evaluation Board (MEB).  The shoulder and back conditions, characterized as “right shoulder stiffness, status post capsular shift,” “right S1 radiculopathy (improved), status post microscopic lumbar discectomy for herniated nucleus pulposus,” and “low back pain” were forwarded to the Informal Physical Evaluation Board (IPEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The CI disagreed with the MEB findings and submitted an appeal in which he disagreed with the MEB dictation, indicating his shoulder injury was more severe than the dictation characterized.  The MEB findings were confirmed as originally reported.  The IPEB adjudicated “right shoulder stiffness and low back pain” as unfitting and rated 10%.  The CI did not concur with the IPEB findings and appealed to the Formal PEB (FPEB), submitting no appeal documentation.  The FPEB adjudicated the two conditions separately, as shown in the chart below, and rated 10% for each condition (20% combined).  The CI made no appeals and was medically separated with that 20% combined disability rating.

CI CONTENTION:  “Instability of L5-S1 caused irritation/bulg in L4-S2 L4-L5 causing groin pain & further stiffness of lower back”

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 right shoulder and low back conditions are addressed below.  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 respective Service Board of Correction of Military Records.

RATING COMPARISON:  

Service FPEB – Dated 20011206	VA - (3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…	8599-8520	10%	Low Back Pain…	5293	10%	20020515	
Right Shoulder Pain…	5099-5003	10%	Right Shoulder Pain…	5203	10%		
No Additional MEB/PEB Entries	Other x 6		
Combined:  20%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20020805.   

ANALYSIS SUMMARY:

Low Back Pain.  Service treatment records (STRs) indicated a documented history of low back pain (LBP) with radiculopathy beginning in 2000 without recorded trauma history.  The CI underwent physical therapy and was treated at the pain clinic with injections.  During the 2 year period prior to separation he was noted to have full range-of-motion (ROM) of lumbar spine, radicular pain and numbness down the right buttock to the thigh, and decreased sensation into the foot.  Magnetic resonance imaging (MRI) on 7 August 2000 revealed disc herniation at L5-S1 with right S1 nerve root impingement.  Approximately a year prior to separation, 23 March 2001, orthopedic consult recorded a normal gait, normal reflexes, and normal motor exam; the CI indicated his pain and sensory symptoms had not significantly improved with treatment and requested surgery.  Within the month the CI underwent surgery without complications.  Since surgery the CI indicated improvement in pain, urinary symptoms, and low back spasms but continued with sensory symptoms in the right leg and foot.  His pain was recorded as persistent with intensity of 4 out of 10 and peaks to 6 out of 10.  The Electromyography (EMG) study from 5 December 2001, approximately 10 weeks prior to separation, demonstrated normal motor and sensory studies with abnormal study of the right tibial reflex, for which the physician opined, “would be consistent with a prior S1 radiculopathy.  This finding may persist once a radiculopathy has resolved and may not return to normal.”  The commander’s statement (CS) 26 September 2001 (approximately 5 months prior to separation) indicated the CI was unable to perform his daily duties in his MOS due to inability to lift heavy weights, and limits on physical activities.  His profile recorded back pain, herniated nucleus, and did not limit walking or swimming.  The MEB narrative summary (NARSUM) evaluation, 20 June 2001, approximately 8 months prior to separation and 2 months status post (s/p) back surgery, indicated the CI was attending physical therapy and continued to report back pain.  On physical examination full strength of lower extremities and normal sensory function was recorded.  Back demonstrated forward flexion of 80 degrees, extension of 30 and normal rotation.  Deep tendon reflexes (DTRs) were also normal.  At the VA Compensation and Pension (C&P) evaluation, 15 May 2002 (approximately 3 months after separation), the CI indicated he occasionally took Motrin for pain, had no radiation of pain and “when he does have back pain” it was accompanied by tingling in the foot, across the toes.  He reported long periods of walking resulted in tightening up of his back and swimming seemed to loosen his back.  He did not wear a belt when he exercised and swam without difficulty.  Physical examination recorded normal gait, he could heel toe walk, right Achilles reflex was absent, and weakness was noted in the right great toe.  ROM, motor, and sensory examinations were not recorded.  

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB rated the condition 10% coded analogously 8599-8520, citing mild, incomplete paralysis of the sciatic nerve.  The VA rated 10% coded 5293 for mild symptoms associated with intervertebral disc syndrome.  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  The Board must correlate the above clinical data with the 2002 rating schedule which was in effect at the time of separation (applicable diagnostic codes include 5292 (limitation of lumbar spine motion), 5293 (Intervertebral disc syndrome), and 5295 (Lumbosacral strain).  The Board noted a higher rating of 20% under the 8520 code could not be supported in the absence of loss of muscle strength, muscle atrophy, and neurological deficits.  The Board considered the rating under 5295, lumbosacral strain, and agreed there was no benefit to the CI in the use of this code.  There is insufficient evidence to support the higher rating of 20% since there is no clinical evidence of spasms occurring on extreme forward bending or loss of lateral spine documented in the record prior to separation.  The Board noted full ROM prior to surgery and the near normal ROM 4 months after surgery at the NARSUM; therefore, code 5292 would not support the higher than minimal compensation.  The Board considered rating under code 5293, intervertebral disc syndrome, noting the absent right ankle jerk and agreed the condition could be coded under this code.  After discussion the Board agreed coding the condition under 5293 offered no additional rating benefit to the CI.  There was no evidence of ratable peripheral nerve impairment in this case, no motor significant weakness was present and loss of right ankle reflex had no functional implication.  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 chronic low back pain condition.

Right Shoulder Pain.  The CI presented to the emergency room in November 1996 with report of injury to right shoulder while playing football.  Treatment records indicated the CI had prior history of right shoulder pain dating back to 1993.  On 9 April 1997 the MRI demonstrated no abnormality in labrum and glenohumeral ligament, no definite bony abnormality at the humerus head and glenoid and no significant joint effusion.  Shoulder impingement syndrome, grade I was suggested.  On 3 July 1997 the CI underwent surgery without complications.  31 July 1997, four weeks after surgery, physical therapy recorded ROM flexion at 135 degrees, 80 degrees of abduction, and 30 for external rotation, with good muscle strength and tenderness to palpation of the surgical scar.  The CI reported increased pain with writing.  26 February 1998 orthopedic visit noted occasional pain with crepitus with lifting.  On examination shoulder rotation was 90 degrees with no palpable tenderness noted and no signs of impingement.  Occupational therapy entry I9 August 1999 recorded normal sensation bilaterally with decrease in motor strength in the right versus left during shoulder abduction and internal rotation.  No further examinations were recorded in the treatment record.  At the MEB NARSUM exam on 
20 June 2001 (8 months prior to separation) the CI reported right shoulder discomfort and tightness.  On examination flexion was 150 degrees and abduction was 180 degrees; there was no muscle atrophy present, no evidence of joint instability, no pain or tenderness recorded, no weakness, and sensation was intact.  At the VA Compensation and Pension (C&P) exam on 
15 May 2002 (approximately 10 weeks after separation) the CI reported right hand numbness with a history of dropping objects.  Physical examination revealed normal sensation and good grip power in the right hand.  Flexion of the shoulder was recorded at 150 degrees and abduction at 180.  Motor strength was normal and there was no evidence of right shoulder instability.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition analogous to 5003 (degenerative arthritis) and granted the minimal compensable rating for pain, 10%.  The VA coded the condition under the 5203 (impairment of scapular) code and assigned a 10% rating for pain.  In accordance with DoDI 6040.44 the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  Applicable diagnostic codes include 5003 (degenerative arthritis), 5201 (limitation of arm motion), 5202, (humerus, other impairment), and 5203 (dislocation of clavicle or scapula).  The Board considered the rating under 5003, degenerative arthritis and agreed there was pain supporting the 10%.  There is insufficient evidence to support the higher rating of 20% using this code since there were no incapacitating episodes.  The Board considered the 5201 for reduced ROM and agreed the reduced ROM was not compensable under any code.  The Board considered rating under 5202 and 5203 codes however there was no clinical or radiologic evidence supporting ankylosis, loss of the humeral head, nonunion, malunion, fibrous union, or deformity of the humerus.  There was also no clinical or radiologic evidence that suggested dislocation, nonunion, or malunion of the clavicle or scapula at the time of separation.  Hence, no alternative shoulder code is supported in justification of a rating higher than 10%.  There was no evidence of ratable peripheral nerve impairment that would provide for additional or higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded there was insufficient evidence to recommend a change from the PEB’s adjudication of the left shoulder conditions.

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 that any prerogatives outside the VASRD were exercised.
In the matter of the LBP condition and in the matter of the shoulder pain condition, both IAW §4.71a, the Board unanimously recommends no change in the PEB adjudications.  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	
Low Back Pain	8599-8520	10%	
Right Shoulder Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121220, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130010785 (PD201300079)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA