RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXX	CASE:  PD-2013-01161
BRANCH OF SERVICE:  Army	BOARD DATE:  20141223
SEPARATION DATE:  20060407

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E-7 (Traffic Management Coordinator) medically separated for low back pain (LBP) and left shoulder pain.  The 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 profile and referred for a Medical Evaluation Board (MEB).  The LBP and left shoulder pain conditions, characterized as “back pain without radiculopathy” and “left shoulder pain status post rotator cuff repair,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded “migraine headaches” and “adjustment disorder” as medically acceptable.  The Informal PEB adjudicated “low back pain and left shoulder pain” as unfitting, rated 10% and 0%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI appealed to the Formal PEB (FPEB), which increased the PEB finding and rating to 10% for the left shoulder condition and maintained the 10% rating for the LBP, for a combined rating of 20%.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “The conditions that rendered me unfit has gotten worst, for that reason the rating should be changed”.  

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:

Service FPEB – Dated 20060222	VA - (02 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain without Neurologic Abnormality	5299-5237 	10%	DJD of Lumbar Spine (claimed as chronic low back condition w/radiculopathy)	5243-5242 	20%	20060213	
Left Shoulder Pain	5099-5003	10%	S/P Arthroscopic Repair of Rotator Cuff w/Subacromial Decompression, Left Shoulder 	5099-5024 	10%	20060213	
			Surgical Scars, Left Shoulder	7804-7801	0%	20060213	
Adjustment Disorder	Not Unfitting	Posttraumatic Stress Disorder	9411	Deferred	20060208	
Other x 1 (Not in Scope)	Other x 9		
Combined:  20%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20060601 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Low Back Condition.  The service treatment record (STR) indicated that the CI had intermittent bouts of LBP after exercising since 2002.  While deployed in March 2004, his prior back symptoms with additional radicular pain in his left leg were exacerbated after lifting heavy water containers.  Radiology tests revealed multi-level lumbosacral bulging discs with nerve exit narrowing.  Electro-diagnostic tests were negative for radiculopathy.  He was not a surgical candidate.  A protracted trial of medications, physical therapy (PT), manipulation, epidural/nerve root injections, acupuncture, and other conservative measures failed to provide long-term pain relief and he was referred for a MEB.  The narrative summary (NARSUM) performed on 23 August 2005 (approximately 8 months prior to separation) noted the CI’s current symptoms as persistent LBP rated at 6 of 10 intensity associated with bilateral (left > right) leg numbness and tingling; all aggravated by prolonged standing/sitting, walking, bending, stair maneuvering.  The physical examination (PE) revealed a normal gait and stance.  There was lumbar tenderness present and his thoracolumbar range-of-motion (ROM) was severely limited by pain.  A positive seated straight leg raise was documented.  There was no comment regarding the presence of spasms or abnormal spinal contour.  Neurologic motor tests and muscle strength were normal.  The examiner noted “He is chronic and stable” with regards to the CI’s back condition.  The STR contained numerous Rehabilitation Medicine entries that documented a normal gait, normal lower extremity neurologic findings, and full lumbosacral ROM without evidence of the VA Schedule for Rating Disabilities (VASRD) defined periods of incapacitation during the preceding 12 months from separation.  At the VA Compensation and Pension (C&P) examination performed on 13 February 2006 (2 months prior to separation), the CI reported a constant 8/10 LBP characteristically described as “burning, aching, sharp, and sticking” which travels into his legs.  Additionally, he endorsed back weakness and stiffness.  His symptoms were worsened with physical activity and relieved with pain medication.  His functional impairment was listed as “decreased ability to bend and lift.”  The VA PE revealed a normal gait without subjective complaints of radicular pain on movements.  There was low back tenderness present and bilateral straight leg raises were listed as positive without further description.  There was decreased ROM and Deluca was positive for pain, fatigue, weakness, and lack of endurance without additional joint limitation.  The examiner noted, “There are no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.”  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.

DOS 20060407
Thoracolumbar ROM
(Degrees)	REHAB ~ 7.5 Mo. Pre-Sep
(20050818) 	MEB ~ 7.5 Mo. Pre-Sep
(20050823) 	REHAB ~ 5.5 Mo. Pre-Sep
(20051024) 	VA C&P ~ 2 Mo. Pre-Sep
(20060208) 	
Flexion (90 Normal)	

“Full ROM”	35	

“Full ROM”	60 	
Extension (30)		5		20	
R Lat Flexion (30)		10		20	
L Lat Flexion (30)		10		20	
R Rotation (30)		16		20	
L Rotation (30)		29		20	
Combined (240)		105		160	
Comment	(+) muscle spasm;
(+) tenderness;
normal gait	(+) tenderness; normal gait; “(+) seated strait leg raise”	(+) muscle spasm;
(+) tenderness;
normal gait	(+) left and right strait leg raise	
§4.71a Rating	10%	20%	10%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition differently, they both utilized similar primary codes of analogous 5237 (lumbosacral strain) and a dual code of 5243 (Intervertebral disc syndrome) and 5242 (degenerative arthritis) respectively; with the PEB citing painful limited motion and the VA as limited motion.  Board members first agreed that sufficient evidence of localized tenderness and or spasms not resulting in abnormal gait or spinal contour were present to justify the rating of 10% IAW VASRD §4.71a.  Next, Board members acknowledged the wide variations in ROM values reported by examiners within the 7-month period prior to separation, possibly having very significant implications regarding the Board's final rating recommendation.  The Board deliberated its probative value assignment to these differing evaluations, and carefully reviewed the file for other corroborating evidence.  There was no record of recurrent injury or other adverse development in explanation of the more marked ROM impairments reflected by the NARSUM and VA measurements after numerous statements of full ROM.  Members specifically considered the MEB’s statement of performing a “seated” straight leg raise while documenting a flexion ROM of 35 degrees.  It was the opinion of the action officer that the performance of a straight leg raise test from a seated position would require at least a near 70 degrees of thoracolumbar flexion to achieve a sitting position in the first place.  Board member consensus was that in review of the totality of evidence, this inconsistency as well as the VA’s flexion directly measured at the cusp for a higher rating did not overcome the frequency of many conflicting normal ROM findings within the STR.  Additionally, all members agreed that there was no separately ratable radiculopathy for disability, since no functional impairment linked to fitness was in evidence.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the LBP condition was appropriately applied in this case.

Left Shoulder Condition.  The CI is right hand/arm dominant.  The CI initially sought treatment for left shoulder pain in early 2005.  The shoulder pain persisted despite extensive conservative measures of medication, PT, and rest.  Radiology testing revealed a complete tendon disruption as well as degenerative arthritis.  The CI underwent an arthroscopic left rotator cuff repair on 10 June 2005.  Gradual improved ROM was documented in STR entries over his post-operative course; although pain with activities persisted.  No STR entries documented instability, subluxation, or any abnormal neurovascular findings.  He was permanently profiled in August 2005 with a diagnosis of left shoulder pain.  At the NARSUM examination (approximately 3 months after surgery) the CI endorsed persistent left shoulder pain with limited motion.  The PE revealed limited ROM.  There was no comment with regards to instability, impingement signs, or the presence of painful motion.  His painful left shoulder condition was listed as “chronic” and “stable.”  At the VA C&P examination (8 months after surgery), the CI reported a constant and localized aching, sharp, and sticking 6 of 10 pain in the left shoulder which is aggravated by physical activity.  The examiner noted, “There is no functional impairment resulting from the [CI’s] condition.”  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.

Left Shoulder ROM
(Degrees)	MEB ~ 07 Mo. Pre-Sep
(20050916) 	PT ~ 06 Mo. Pre-Sep
(20051017) 	VA C&P ~ 02 Mo. Pre-Sep
(20060213) 	
Flexion (180 Normal)	80	160	120	
Abduction (180)	80	140	120	
Comments	-	painful motion	-	
§4.71a Rating	20%	10%	0%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB analogously coded the shoulder under 5003 at 10%, whereas the VA analogously coded 5024 (tenosynovitis) at 10%; both of which cited painful limiting motion.  Although there appeared a remarkable improved ROM in a single month after the MEB, Board members were uncertain as to the reasoning for such dramatic findings; not acknowledging simple post-surgical healing during such a short timeframe.  However, in this case, the MEB exam has very little weight with regards to probative value due to the prolonged time reference to separation.  The VA examination being closest to separation maintained the highest probative value and thus reflected an accurate picture of the CI’s impairment.  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 left shoulder condition.  Consideration was also given to other VASRD shoulder codes, but absent objective ankylosis or fibrous union of the humeral head, no alternatives supported a higher rating than the PEB’s 10%.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the adjustment disorder was 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.

Adjustment Disorder.  The CI was first referred to MH in January 2005 for insomnia, which was found to be associated with his physical pain conditions as well as stress stemming from MEB proceedings.  He made additional complaints of disturbing dreams and crowd avoidance, and was diagnosed with delayed onset of posttraumatic stress disorder (PTSD).  He underwent psychotherapy treatment, which resulted in overall symptom improvement.  The therapist diagnosed adjustment disorder with anxiety.  A sleep study revealed severe obstructive sleep apnea.  At the MEB psychiatry exam, the CI reported he had worked as a maintenance supervisor with about 10 employees under his direction, had never had a problem at work, and had good relationships with his supervisor, co-workers, wife and children.  The psychiatrist rendered a diagnosis of adjustment disorder with anxiety, resolving and opined that this condition did not disqualify him from further service.  The psychiatrist further indicated he did not meet criteria for PTSD.  The CI request for reconsideration and appeal of the FPEB findings did not include a MH diagnosis.  Board members agreed that the evidence of the record reflected minimal to nearly no MH related symptoms during the preceding year to separation.  There was no evidence of emergency room visits, hospitalizations, or intensive outpatient psychiatric treatment.  The commander’s statement did not implicate an MH issue and an MH condition was never profiled.  The Board reviewed the records for evidence of inappropriate changes in the diagnosis of the MH condition while processing through the DES.  The available records show that the original diagnosis was adjustment disorder.  
Therefore, the Board determined that the criteria for the Terms of Reference for the MH Diagnosis Review Project were not met.  In addition, the Board concluded that there was insufficient evidence that any MH condition existed or rose to the level of being unfitting near the time of separation and therefore none were subject to a disability rating.  Additionally, adjustment disorder is not a physical disability and is not ratable IAW DoDI 1332.38.

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 and DoDI 1332.39 for rating the low back and left shoulder conditions was operant in this case and both were adjudicated independently of that policy by the Board.  In the matter of the low back condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the adjustment disorder condition, the Board unanimously recommends no change from the PEB determination 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 20130822, 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 XXXXXXXXXXXXX, AR20150008333 (PD201301161)

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						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA