RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX                                                            CASE:  PD-2013-01186
BRANCH OF SERVICE:  Army                                                                          BOARD DATE:  20140911
Separation Date:  20020620

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (92G/Food Service Sergeant) medically separated for back, shoulder, hip and neck conditions.  These four conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The back, shoulder, hip and neck conditions, characterized as “chronic neck pain w/DDD diffusely of the cervical spine and loss of forward flexion,” “chronic low back pain, mechanical in nature w/o evidence of radiculopathy,” “left shoulder, mild pain; status post previous arthroscopic sub-acromial decompression” and “chronic right hip pain” were the only conditions forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB combined three of the four conditions and adjudicated the “pain lower back, left shoulder and right hip” as well as “chronic neck pain w/DDD” as unfitting, rated at 10% and 10% for a combined disability rating of 20% respectively, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy and the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “DOD erred in combining the rating for Pain in lower Back, Left shoulder, and Right hip on the DA Form 199.  Each unfitting condition should have been separated and provided a rating per DODI 1332.39, November 14. 1996 6.4; 6.10: 6.14. Additionally Range of Motion measurements were not taken IAW directives, using a Goniometer and were therefore an estimation of the examiner. USMC records were not reviewed by board.”  

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 back, shoulder, hip and neck conditions are addressed below and, 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.

The Board acknowledges the CI’s assertions that his disability disposition was not conducted within the DoDI quoted.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the Board for the Correction of Military Records and/or the United States judiciary system.

RATING COMPARISON:

Service IPEB – Dated 20020306	VA - (Same Month As Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Pain Lower Back, Left Shoulder, and Right Hip	5099-5003	10%	Degenerative Disc Disease (DDD) of the Lumbar Spine	5292	10%	20020606	
			Residuals of Left Shoulder Surgery	5201	0%	20020606	
			Right Hip Pain	5252	Not Service Connected (NSC)	20020606	
Chronic Neck Pain	5290	10%	DDD of the Neck	5290	10%	20020606	
No Other Items in Scope	No Others Items in Scope	
Combined:  20%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20020801 (most proximate to date of separation)

ANALYSIS SUMMARY:  The PEB combined the pain lower back, left shoulder, right hip conditions under a single disability rating, coded analogously to 5003 arthritis, degenerative (hypertrophic or osteoarthritis) code.  This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation.  The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was “reasonably justified” as separately unfitting.

Pain Lower Back, Left Shoulder, and Right Hip Conditions:  The Board first considered if the pain lower back, left shoulder, and right hip conditions having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above.  Prior to entry into the disability evaluation process, the CI had multiple temporary profiles that document his neck, low back and left shoulder conditions caused duty limitations, while no profiles implicated the right hip in any duty limitation.  There are numerous service treatment record (STR) notes that document evaluation and treatment of his lower back and left shoulder pain both separately and individually.  The right hip is only mentioned in MEB exam and the VA Compensation and Pension (C&P) exam.  There are no other records in the STR that document right hip pain.  The commander’s statement documented that the restrictions listed in the CI’s profile affected his ability to deploy to field training exercises and perform in his MOS and did not mention any specific condition.  The well-established principle for fitness determinations is that they are performance-based.  The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of the right hip condition with the performance of duties at the time of separation.  After due deliberation, all Board members agreed that the evidence does not support a conclusion that the functional impairment from the right hip condition was integral to the CI’s inability to perform his MOS and, accordingly cannot recommend a separate rating for it.  Additionally, members agreed that the chronic low back pain and left shoulder pain conditions, as isolated conditions, would have rendered the CI incapable of continued service within his MOS and therefore each is separately unfitting and merits a separate rating.

Pain Lower Back Condition.  The CI had an episodic history of low back pain from overuse and overwork until he sustained a fall at work in 1998, which exacerbated his pain.  A sacroiliac joint (SIJ) X-ray done for a 6-month history of chronic low back pain (LBP) was normal.  The commander’s statement documented that the restrictions listed in the CI’s profile affected his ability to deploy to field training exercises and perform in his MOS and did not mention any specific condition.  The CI was referred to physical therapy (PT) for chronic LBP evaluation and treatment.  The CI was given a permanent U3 Profile for chronic neck and shoulder pain with restrictions specific to the medical conditions.  He continued to report chronic LBP despite a variety of treatment modalities.  A lumbar spine X-ray showed a moderate degree of arthritic changes at the L1-2 and L3-4 joint spaces.  The MEB narrative summary (NARSUM) exam approximately 5 months prior to separation documented that the CI had LBP rated at 4-5/10 which increased with activities.  The VA C&P exam (15 days prior to separation) documented that the CI had chronic LBP.  The NARSUM and C&P physical exam findings are summarized in the chart below:

There were two range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board considered in arriving at its rating recommendation; as summarized in the chart below:

Thoracolumbar ROM (Degrees)	MEB ~5 Mos. Pre-Sep	VA C&P 15 Days Pre Sep	
Flexion (90 Normal)	90	70	
Combined (240)	-	-	
Comment	Pos. painful motion; Normal reflexes	Pos. right straight leg raise; Normal reflexes	
§4.71a Rating	10%	10%	

The 2002 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The earlier criteria were subject to the rater’s opinion regarding degree of severity, as opposed to the more objective current standards with quantifiable rating thresholds grounded in ROM measurements.  The 2002 criteria relevant for consideration in the Board’s recommendation are cited in context below.

5292 Spine, limitation of motion of, lumbar
Severe .......................................................40
Moderate ..................................................20
Slight .........................................................10

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the pain, lower back condition as 5099 analogous to 5003 and rated at 10% with application of the USAPDA pain policy.  The VA coded the DDD of the lumbar spine condition as 5292, limitation of lumbar spine motion and rated at 10%.  The Board considered the coding of 5295 lumbosacral strain and a 10% rating (with characteristic pain on motion) versus a 20% rating (with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing' position), however no examination documented muscle spasm or loss of lateral spine motion.  The Board deduced that the VA C&P exam was as thorough as the MEB exam however this exam was 15 days prior to separation and therefore had the highest probative value.  The Board agreed that the evidence above more closely aligned with application of code 5292, limitation of lumbar spine motion, as there was limited ROM on the VA C&P exam.  There is no reasonable coding or rating scheme that would result in a rating greater rating than 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic low back pain condition.

Pain Left Shoulder Condition.  The CI was seen for left shoulder pain with periods of locking, catching and popping which were made worse by lifting.  There were physical findings of localized pain and crepitus.  The CI was evaluated by PT for the left shoulder pain and was diagnosed with left shoulder impingement syndrome while an orthopedist diagnosed left shoulder impingement syndrome with a possible labral tear.  The CI underwent extensive PT for left shoulder pain.  The CI underwent a left shoulder acromial decompression for progressive impingement with an AC joint arthritis on 18 May 2001.  Two left shoulder X-rays done in both December 2001 and June 2002 were normal.  The commander’s statement documented that the restrictions listed in the CI’s Profile affected his ability to deploy to field training exercises and perform in his MOS and did not mention any specific condition.  The MEB NARSUM exam documented that the CI had occasional pain with excessive overhead activities and doing pushups.  The VA C&P exam documented that the CI occasionally still had clicking and a catch in the surgical area.  The MEB NARSUM and C&P physical exam findings are summarized in the chart below.

There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board considered in arriving at its rating recommendation; as summarized in the chart below:

Left Shoulder ROM (Degrees)	MEB ~5 Mos. Pre-Sep	VA C&P 15 days Pre Sep	
Flexion (180 Normal)	FROM	170	
Abduction (180)		170	
Comments: Right hand dominant	Mild tenderness to palpation; Normal strength; Pain with overhead activities, pushups	Chronic pain; cannot wear Kevlar, cannot carry a pack	
§4.71a Rating	10%	10% (Based on §4.40, Functional loss)	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the left shoulder pain condition as 5099 analogous to 5003 and rated at 10% with application of the USAPDA pain policy.  The VA coded the residuals of left shoulder surgery condition as 5201, limitation of arm motion and rated at 0%, citing “…no tenderness on range of motion.”  No exam indicated instability or limited ROM to a compensable level.  VASRD §4.71a specifies for 5003 that satisfactory evidence of painful motion limitation of motion and specifies a 10% rating for each major joint or group of minor joints affected by limitation of motion.  While the NARSUM provided satisfactory evidence of painful motion, the C&P exam did not.  However, the C&P exam did document functional loss IAW VASRD §4.40 (Functional Loss) which the Board considered in arriving at its recommendation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.40, the Board recommends a disability rating of 10% for the left shoulder pain condition.

Chronic Neck Pain Condition.  The CI developed neck pain after a fall in 1998.  He was seen in PT for chronic neck pain with physical exam findings of moderate limited ROM, grip weakness, triceps weakness and a positive test for nerve root compression at the cervical level.  A cervical spine MRI showed degenerative disc changes at C5-7 with minimal diffuse disc bulges at C3-4 and bilateral narrowing of the nerve root openings.  The CI continued with PT and TENS unit treatment throughout 2001 and 2002 without resolution of his pain.  The commander’s statement documented that the restrictions listed in the CI’s Profile affected his ability to deploy to field training exercises and perform in his MOS and did not mention any specific condition.  A plain film cervical spine X-ray showed a moderate degree of arthritic changes involving C4-6.  The MEB NARSUM exam documented that the CI had stiff, constant neck pain that was rated at 5-6/10.  The VA C&P exam documented that the CI had chronic neck pain and was unable to wear Kevlar nor could he carry a pack.  The NARSUM and VA C&P physical exam findings are summarized in the chart below.

There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board considered in arriving at its rating recommendation; as summarized in the chart below:

Cervical ROM (Degrees)	MEB ~5 Mos. Pre-Sep	VA C&P 15 Days Pre Sep	
Flex (45 Normal)	15	10	
Combined (340)	-	-	
Comment	No painful motion; Normal strength, reflexes & sensation; No evidence of radiculopathy	Pos. tenderness; “Slight“ decreased ROM; “Moderate physical impairment”	
§4.71a Rating	10%	10%	

The 2002 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The earlier criteria were subject to the rater’s opinion regarding degree of severity, as opposed to the more objective current standards with quantifiable rating thresholds grounded in ROM measurements.  The 2002 criteria relevant for consideration in the Board’s recommendation are cited in context below.

5290 Spine, limitation of motion of, cervical:
Severe.....................................................30
Moderate................................................20
Slight.......................................................10

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the chronic neck pain condition as 5290, limitation of cervical spine motion and rated at 10% with application of the USAPDA pain policy.  The VA coded the DDD of the neck condition as 5290 and rated at 10%, “slight.”  The Board deduced that the VA C&P exam was as thorough as the MEB exam; however, the C&P exam was 15 days prior to separation and therefore had the highest probative value.  The Board agreed that the evidence above more closely aligned with application of code 5290, limitation of cervical spine motion, as there was limited ROM on the VA C&P exam.  The Board considered the 10%, “slight” rating versus the 20%, “moderate” rating.  The C&P examiner designated the limitation of motion as “slight.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic neck pain condition.

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 (635-40) for rating the bundled low back pain, left shoulder pain and right hip conditions was operant in this case and those conditions were adjudicated separately and independently of that policy by the Board.  In the matter of the right hip pain condition, the Board unanimously agrees that it was not separately unfitting and therefore cannot recommend it for a disability rating.  In the matter of the low back pain condition, the Board unanimously agrees that it was separately unfitting and unanimously recommends a disability rating of 10%, coded 5292 IAW VASRD §4.71a.  In the matter of the pain left shoulder condition, the Board unanimously agrees that it was separately unfitting and unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 10%, coded under 5290 IAW VASRD §4.71a.  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 recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITIONS	VASRD CODE	RATING	
Low Back Pain	5292	10%	
Left Shoulder Pain	5099-5003	10%	
Chronic Neck Pain	5290	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 201330827, 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 XXXXXXXXXXXXXXXXXX, AR20140021527 (PD201301186)

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 30% 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 30% 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