RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-00707
BRANCH OF SERVICE:  Army	BOARD DATE:  20141017
SEPARATION DATE:  20040721

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (95B/Military Police) medically separated for chronic neck, low back and right shoulder conditions.  The neck, back and shoulder conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3/L3 (S=1) profile and referred for a Medical Evaluation Board (MEB).  The neck, back and shoulder conditions, characterized as “slight, constant neck pain due to degenerative disc disease (DDD),” “slight, constant low back pain (LBP) due to DDD,” and “slight, constant chronic right shoulder pain, due to acromioclavicular (AC) joint separation, Grade II” were the only conditions forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic neck pain due to DDD,” “chronic LBP due to DDD” and “chronic pain of right shoulder due to acromioclavicular joint separation” as unfitting, rating them at 10%, 10% and 0% respectively, citing the US Army Physical Disability Agency (USAPDA) pain policy for the right shoulder condition.  The CI made no appeals and was medically separated 

CI CONTENTION:  “There was (sic) more medical issues due to my accident.  TBI, posttraumatic stress disorder (PTSD), hearing loss, etc.  I was told that if I agree and took the severance pay all my other claims would be easier to substain (sic) in my VA claims in the future. Due to my accident and future diagnose it has gotten worse.  The severance pay was deducted from my VA compensation after VA approved a different %. I was mislead by the personal when signing the PEBLO estimated Disability Compensation Worksheet.”

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 be eligible for review of the military disability evaluation of any mental health (MH) 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 MH 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 MH condition of PTSD specifically contended for on the DD Form 294.  In accordance with Secretary of Defense directive for a comprehensive review of MH 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 MH diagnoses in accordance with the VA 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 rating for the unfitting chronic neck, chronic low back and chronic right shoulder 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 Board for Correction of Military Records (BCMR).

RATING COMPARISON:

Service IPEB – Dated 20040527	VA - (7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5299-5242	10%	Right Paracentral Soft C3-C4, C4-C5 Herniated Disc and Larger C5-C6 Herniated Disc w/Mild Cord Impingement at C5-C6 and DDD; Cervical Paravertebral Myositis 	5243	10%	20050210	
Chronic Low Back Pain…	5299-5242	10%	L5-S-1 Bulging Disc w/DD w/Mild Neural Formania Stenosis; Lumbar Paravertebral Myositis 	5243	20%	20050210	
Chronic Pain Right Shoulder…	5099-5003	0%	Right Acromioclavicular Joint Separation; Right Shoulder Adhesive Capsulitis w/Rotator Cuff Tendinitis and Subacromial Bursitis	5024	10%	20050210	
No DES Entry	Anxiety Disorder, not otherwise specified (NOS)	9413	10%	20050210	
Other X 0 (Not in Scope)	Other x 10	20050210	
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20050322 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertion that he was misled during his disability disposition.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations.  These issues may be addressed by the BCMR and/or the United States judiciary system.

Chronic Neck Pain Condition.  Available service treatment records (STR) documented that in August 2003 while deployed to Iraq, the CI fell 15 feet from a tower to a concrete surface and sustained injuries that required medical evacuation.  Neck pain was evaluated with X-rays, which were normal; but magnetic resonance imaging (MRI) of the cervical spine showed DDD with C5-6 protrusion without neuroforaminal impingement.  The condition was not associated with a surgical indication.  Physical therapy (PT) and medications did not sufficiently alleviate his pain.  Because of right arm numbness, electrodiagnostic studies were performed, which were negative for cervical radiculopathy.

The narrative summary (NARSUM) on 23 April 2004 (3 months prior to separation) reported that the CI’s neck pain was constant, aggravated by all types of motion and fluctuated in severity.  The pain disturbed his sleep.  He was taking a medication for sleep and non-narcotic medication for pain.  Physical examination noted the CI walked “very slowly” but the cause of this gait was not specified.  The exam was silent regarding muscle spasm, guarding or contour of the cervical spine.

A VA general medical Compensation and Pension (C&P) examiner on 17 November 2004 (4 months after separation) noted a normal gait and spinal contour.  At the C&P examination on 10 February 2005 (7 months after separation) the CI reported severe pain on a daily basis that lasted for 8 to 10 hours and was associated with hand numbness.  The pain was exacerbated by exercise and brisk movements and alleviated by massage.  He worked full-time as a state policeman investigator since July 2004, and complained of difficulty standing or sitting in his job due to the cervical condition.  He could drive without difficulty for 10-15 minutes, but described difficulty with intercourse and he could not play basketball or lift weights.  With acute flare ups, he could not work and had to have complete bed rest; but bed rest was not prescribed by a physician.  Examination showed cervical muscle spasm, but a normal gait and spinal curvature.  He was reportedly limited by pain following repetitive use of the cervical spine, but any additional limitation was not measured.  Upper extremity strength was normal.
The goniometric range-of-motion (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.

Cervical ROM
(Degrees)	MEB ~3 Mos. Pre-Sep	VA C&P ~7 Mos. Post-Sep	
Flex (45 Normal)	40	30	
Combined (340)	265	240	
Comment	+Tenderness, painful motion	+Tenderness, painful motion	
§4.71a Rating	10% (PEB 10%)	20% (VA 10%)	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated chronic neck pain 10%, coded analogously to 5242 (degenerative arthritis of the spine), while the VA assigned the same rating under the 5243 code (intervertebral disc syndrome).  Under the VASRD rating formula for the spine, a 20% rating is warranted for forward flexion greater than 15 degrees but not greater than 30 degrees; combined ROM not greater than 170 degrees or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  The ROM on the service exam supported a 10% rating, but the VA exam’s flexion measurement warranted 20%.  Board members assigned greater probative value to the service exam because of its proximity to separation, but debated if other findings supported a higher rating.  Although a “slow gait” was noted, there was no requisite link of an abnormal gait to guarding or spasm and therefore the next higher 20% rating was not supported on this basis.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the criteria for a minimal rating under that formula.  The Board finally deliberated if additional disability was justified for peripheral nerve impairment.  Although the CI complained of numbness in the right arm and the hands, the electromyography showed no evidence of nerve issues arising from the cervical spine and examinations documented no muscle weakness.  There was no evidence in this case of functional impairment attributable to peripheral neuropathy.

The Board therefore concluded that additional disability was not justified on this basis.  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 neck pain condition.

Chronic Low Back Condition.  According to the STR, a week after the fall the CI reported significant pain in his lower back.  Initial X-rays were negative but MRI of the lumbar spine showed a small L5-S1 disc bulge and some facet overgrowth, resulting in mild neuroforaminal stenosis with mild DDD at L5-S1.  Surgery was not indicated; treatment included PT and medication for pain.  The MEB NARSUM (3 months prior to separation) reported that LBP was constant, aggravated by movement and at times was worse than at other times.  Sleep was disturbed because of the pain.  As previously stated examination showed a slow gait but did not ascribe a cause.  Muscle spasm was noted, but spinal contour was not mentioned.

At the VA C&P exam (7 months after separation), the CI reported constant, severe lumbar pain associated with difficulty walking and numbness and tingling of the legs.  Pain was daily, lasted 8 to 10 hours, impeded his ability to work and sometimes required complete bed rest.  However, bed rest was not prescribed by a physician.  He could walk unaided but used a lumbosacral support constantly with temporary pain control.  Examination showed normal spine contour and gait.  Neurologic exam showed diminished sensation in the lower extremities, but in a non-anatomic distribution; muscle strength in the lower extremities was normal.

The 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.

Thoracolumbar ROM
(Degrees)	PCC ~7 Mos. Pre-Sep	MEB ~3 Mos. Pre-Sep	VA C&P ~7 Mos. Post-Sep	
Flexion (90 Normal)	85	60	40	
Combined (240)	NA	180	185	
Comment	+Tenderness, mild spasm (no mention of gait or contour)	Bilateral spasms	+Tenderness, painful motion	
§4.71a Rating	10%	20% (PEB 10%)	20% (VA 20%)	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5242 code, while the VA rated the condition 20%, coded 5243.  Because the MEB NARSUM was closer to the time of separation and specified all lumbar ROM values, it was assigned higher probative value than the primary care clinic exam 7 months prior to separation.  The limitation of flexion noted on the NARSUM and VA exams both supported a 20% rating for forward flexion greater than 30 degrees but not greater than 60 degrees.  The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the criteria for a minimal rating under that formula.  The Board finally deliberated if additional disability was justified for peripheral nerve impairment.  The CI complained of numbness in his legs.  However, there were no complaints of muscle problems and muscle strength was normal.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There is no evidence in this case of functional impairment attributable to peripheral neuropathy.  The Board therefore concluded that additional disability was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a service disability rating of 20% for the chronic LBP condition.

Chronic Right Shoulder Condition.  The right handed CI sustained a right shoulder Grade II AC joint separation (Grade I least severe, Grade VI most severe) during the same event that led to the previously described conditions.  It was concluded that surgery was not required and the CI underwent physical therapy after using a sling for 2 weeks and shoulder injections.  A constant, aching pain persisted despite treatment and was not related to shoulder position.  The NARSUM (9 months after injury and 3 months prior to separation) reported that exercise and grabbing or picking things up with the right arm significantly exacerbated pain.  Examination of the right shoulder revealed swelling of the right AC joint.

At the VA C&P examination (7 months after separation), the CI reported constant, moderate right shoulder pain which was helped by an anti-inflammatory pain medication.  Cardiovascular exercises and lifting weights precipitated the pain.  Episodes of dislocation were denied.  Although he denied any occupational limitation due to the shoulder condition, he reported acute pain that lasted for weeks, leaving him unable to go to work and requiring complete bed rest.  He saw no doctors during the previous year for his shoulder.  Examination of the right shoulder revealed no swelling, instability, weakness, abnormal movement or guarding.  The right shoulder AC separation was palpable.  Repetitive use of the right shoulder was reportedly limited by pain and fatigue, but ROM after repetition was not measured.  The examiner rendered a diagnosis of adhesive capsulitis (“frozen shoulder”).

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 Shoulder ROM
(Degrees)	Ortho ~7.5 Mos. Pre-Sep	MEB ~3 Mos. Pre-Sep	VA C&P ~7 Mos. Post-Sep	
Flexion (180 Normal)	120	80	90	
Abduction (180)	120	80	90	
Comments	+Tenderness, painful motion	+Tenderness, painful motion	+Tenderness, painful motion, crepitus	
§4.71a Rating	10%	20% (PEB 0%)	20% (VA 10%)	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 5003 code (degenerative arthritis) with application of the USAPDA pain policy.  The VA rated the condition 10% using the 5024 code (tenosynovitis).  Board members agreed that sufficient evidence of painful motion was present to support a 10% rating IAW VASRD §4.59, but considered if a higher rating was warranted for limitation of motion under the 5201 code (arm, limitation of motion of).  Because the MEB NARSUM exam was more proximal to separation, it was assigned higher probative value than the orthopedic exam (over 7 months prior to separation).  The VASRD §4.71a threshold for compensable ROM impairment is “at shoulder level,” i.e., 90 degrees and the examination demonstrated motion near this level.  The 20% rating was therefore justified on this basis.  The next higher 30% rating for a dominant arm requires motion limited to “midway between side and shoulder level,” which was not present in this case.  The Board finally concluded that there was no route to a higher rating under the 5203 code (clavicle or scapula, impairment of) and no evidence of recurrent dislocations to support a rating under the 5202 code (humerus, other impairment of).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the right shoulder pain condition, coded 5201.

Mental Health Review.  The CI was deployed to Iraq from April to August 2003.  On 1 November 2003 (9 months prior to separation), a temporary physical profile was written for “Posttraumatic Stress Disorder, Combat Related, Did not exist prior to entry.”  It indicated that the CI must be allowed to attend group and individual therapy, but it did not specify any duty limitations and did not assign an “S” code specification.  Prior to separation, the available STR showed one MH clinical entry dated 29 March 2004 (4 months prior to separation).  This note indicated that the CI had participated in a PTSD therapy group, and endorsed sleep interruption, mood irritability, decreased tolerance for frustration, and anxiety.  Reported stressors included a close friend committing suicide (and left the CI a suicide note); his sister being admitted to the intensive care unit (prior to his deployment) and viewing the body of his friend killed in Iraq.  

On the MEB history and physical DD Form 2807, dated 14 April 2004, the CI indicated he had constant anxiety (diagnosed as PTSD), stuttering, difficulty with sleep and counseling for depression.  The profiling section of the DD Form 2808 listed a diagnosis of PTSD and assigned an S1 profile.  The examiner was silent about the criteria in support of a PTSD diagnosis.  The commander’s statement (3 months prior to separation) mentioned only the orthopedic conditions as an impediment to performance of duty.  The NARSUM, the MEB submission and the PEB Form 199 did not mention a MH condition.  The available records were silent about further MH care until a psychiatry consultation report for a PTSD clinical evaluation, dated 16 November 2004 (4 months after separation).  The evaluation confirmed that the CI had served in a war zone from April to August 2003; and the CI reported he had been in treatment for PTSD.  The examiner rendered a diagnosis of adjustment disorder with PTSD features, and assigned a Global Assessment of Function (GAF) of 75, connoting transient symptoms or impairment.  A C&P exam for evaluation of PTSD (7 months after separation) confirmed that prior to separation the CI was diagnosed with PTSD and major depressive disorder, precipitated by combat.  His civilian job was going well, as he was named “special agent of the year.”  He reported no marital problems.  None of his MH symptoms were interfering with his function on the job or with his social life.  The examiner concluded that the CI’s mental disorder did not meet DSM-IV criteria for PTSD.  A diagnosis of anxiety disorder, NOS was rendered, and an assigned GAF was 70 (mild symptoms or impairment).

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the DES.  The evidence of the available records showed a diagnosis of PTSD was rendered during the DES process (DD Form 2808).  The PTSD diagnosis was not forwarded by the MEB or adjudicated by the PEB; therefore the Board determined that this applicant did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board next considered whether any mental condition, regardless of diagnosis, was unfitting for continued military service.  The Board’s threshold for recommending a not-unfit determination requires a preponderance of evidence.  All Board members agreed that evidence of the record reflected minimal occupational impairment on the basis of MH related symptoms.  The commander’s statement did not implicate a MH condition as a cause of duty impairment.  At no time during the applicant’s military service did he require a psychiatric hospitalization or emergency care.  No MH condition was permanently profiled or was judged to fail retention standards.  There was no indication from the record that the MH condition significantly interfered with satisfactory duty performance.  The Board therefore concluded that there was insufficient evidence that any MH condition rose to the level of being unfitting at the time of separation.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a determination of unfit for any MH condition; and therefore, no disability rating can be 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating chronic right shoulder pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic neck pain condition, IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 20%, IAW VASRD §4.71a.  In the matter of the chronic right shoulder pain condition, the Board unanimously recommends a disability rating of 20%, coded 5201, IAW VASRD §4.71a.  In the matter of any contended MH condition, the Board unanimously recommends no additional disability rating.  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	
Chronic Neck Pain	5299-5242	10%	
Chronic Low Back Pain	5299-5242	20%	
Chronic Pain of Right Shoulder	5201	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130528, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

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, AR20150006263 (PD201300707)

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 40% 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 40% 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						     
						
CF: 
(  ) DoD PDBR
(  ) DVA