RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01771
BRANCH OF SERVICE:  Army	BOARD DATE:  20150211
SEPARATION DATE:  20040520

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Infantryman) medically separated for right shoulder, neck and right temporomandibular pain.  These 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 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “chronic right shoulder pain with instability,” “chronic neck pain” and “chronic temporomandibular joint (TMJ) pain” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated “chronic pain, neck…right shoulder and end right temporomandibular joint” as a single unfitting condition, rated 10%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI did not concur, but waived a Formal PEB.  THE USAPDA reviewed the case and affirmed the IPEB findings and recommendations and the CI was medically separated.

CI CONTENTION:  “The conditions that rendered me unfit have gotten much worse.  I’m now rated 90% disabled by the VA.  I disputed the MEB findings but to no avail.  I had 14 years active duty and 4 active reserve that totaled over 16 active service.”

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. 

RATING COMPARISON:

IPEB – Dated 20040304	VA* - (~4 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Neck…Right Shoulder and End Right Temporomandibular Joint	
5009-5003
	10%	Cervical Spondylosis	5242	20%	20040127	
			Right Shoulder Impingement and Instability s/p Surgery	5099-5024	10%	20040127	
			Temporomandibular Joint Dysfunction	9905	0%	20040123	
Other x 0 (Not In Scope)	Other x 3 	
RATING:  10%	COMBINED RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20040708 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:  The PEB combined the chronic neck pain, right shoulder pain and right TMJ pain conditions under a single disability rating, coded analogously to 5003 with cited application of USAPDA Pain Policy.  IAW DoDI 6040.44, if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each condition subsumed under the single disability rating must be reasonably justified as separately unfitting in order to remain eligible for rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  The evidence for each condition is presented separately.  If Board members determine by performance based fitness criteria that the condition is reasonable justified as separately unfitting and is separately ratable, separate ratings are recommended.

Chronic Pain, Neck, Right Shoulder and End Right Temporomandibular Joint.  Treatment records reflect that the CI initially presented with right shoulder pain on 2 February 1999 after a fall.  The CI was treated with rest and range-of-motion (ROM) exercise.  The records were silent with regard to right shoulder pain until 8 August 2000 when the CI presented with a 2-month history of constant right shoulder pain.  At that time the CI reported sharp pain with push off activities rated 8/10 with use and for at rest.  The physical examination demonstrated crepitus, and pain with abduction.  A diagnosis of mechanical muscle injury of the right shoulder was rendered.  An orthopedic evaluation dated 12 August 2000 noted a history of right shoulder pain and instability, and diagnosis of right shoulder muscle overuse injury with secondary rotator tendonitis and acromioclavicular (AC) degenerative joint disease.  The CI was referred to physical therapy.  Despite physical therapy, the CI continued to report right shoulder pain and instability.  A magnetic resonance imaging (MRI) study dated 20 November 2000 demonstrated a tear or severe degeneration of the rotator cuff.  On 5 January 2001, the CI underwent arthroscopic reconstruction of the anterior rotator cuff, labral debridement, and open resection of the AC joint.  The CI underwent post-operative physical therapy rehabilitation and did well until a parachute jump injury in late 2002.  On 24 January 2003, the CI presented to primary care with reports of right shoulder pain and instability.  On 10 February 2003, the CI underwent a right AC injection for pain management.  An MRI dated 14 February 2003 revealed a partial articular surface tear of one of the rotator cuff (supraspinatus) tendons.  A second arthroscopy was recommended to repair the tear.

At the narrative summary (NARSUM) examination, the CI reported persistent right shoulder pain and instability.  He reported that he was reluctant to proceed with a second arthroscopy due to residual pain after prior surgery.  The physical examination was significant for right anterior and superior shoulder tenderness to palpation with pain limited ROM.  At the VA Compensation and Pension (C&P) examination performed approximately 4 months prior to separation, the CI reported right shoulder pain, recurrent dislocation and an inability to lift heavy objects, do push-ups, and pull-ups.  The physical findings included right anterior shoulder tenderness to palpation, limitation of motion, and additional limitation of motion due to pain.  A diagnosis of status post surgery with residual impingement syndrome and instability was rendered.
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)	PT ~3 Mo. Pre-Sep	MEB ~5 Mo. Pre-Sep
	VA C&P ~4 Mo. Pre-Sep
	
Flexion (180 Normal)	115	Some Limitation of Motion	140	
Abduction (180)	140		130	
Comments				
§4.71a Rating	10%	-	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  As noted above, the PEB combined three conditions under a single disability rating, coded analogously to 5003.  The VA rated the chronic right shoulder pain at 10% analogous to code 5009-5024 (tenosynovitis).  The Board first considered if chronic right shoulder pain with instability condition was reasonably justified as separately unfitting.  Members agreed that the evidence supports that the functional limitations of the chronic right shoulder pain with instability could be reasonably justified as separately unfitting.

The Board then considered the rating recommendation.  The Board noted that the CI had two right shoulder surgeries with continued reports of pain and instability.  Treatment records, NARSUM, and VA examination evidenced above shoulder level pain limited motion.  The Board determined that criteria were met for a 10% disability rating IAW VASRD § 4.59 (Painful Motion).  The Board then considered whether there was evidence for a higher than 10% rating.  Although multiple treatment notes documented instability and radiographic evidence of a partial tear of one of the rotator cuff tendons, there was insufficient evidence of recurrent right shoulder dislocation, guarding of movement at shoulder level (5202, humerus, other impairment of), moderately severe shoulder instability (5304, Muscle injuries, Group IV), or nonunion of the clavicle with loose movement (5203) for a 20% rating.  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 right shoulder pain with instability condition.

Chronic Neck Pain.  Treatment records evidence that the CI sustained a neck injury on 30 November 2002 during a parachute exercise.  He was evaluated in the emergency department and diagnosed with acute cervical strain.  An MRI study dated 19 December 2002 documented mild degenerative changes at cervical level 3-4.  The CI underwent a course of physical therapy and chiropractic care without relief of his neck pain.  An orthopedic evaluation dated 24 January 2003 demonstrated cervical tenderness to palpation at the C 4-5 level and full active ROM with painful motion in all planes.  The neurologic examination was normal.  A neurosurgery examination dated 11 April 2003 documented that the CI would not benefit from surgery and recommended continued nonoperative management.  On 23 April 2003, the CI underwent a cervical epidural steroid injection.  A treatment note dated 8 May 2003 noted moderately severe neck pain which increased with activity.  The examiner noted that the CI was without pain relief after the steroid injection and opined that it was unlikely that further injections would benefit the CI.  The CI was started on narcotic pain medication.  The NARSUM examination dated 22 January 2004 documented reports of left arm and hand numbness.  The examiner noted that these symptoms were consistent with the radiographic findings of degenerative changes at C3-4 with small lateral disc protrusion on left.  The physical examination demonstrated neck stiffness, painful motion, and tenderness to palpation from cervical level 4-7.  A diagnosis of chronic neck pain with left lateral disc protrusion at C3-4, unresponsive to therapy was rendered.  At the VA C&P examination performed approximately 4 months prior to separation, the CI reported constant aching, sharp pain made worse with stress and physical activity.  The CI also reported that he had difficulty driving to neck limitation of motion.  On physical examination there was cervical paraspinous tenderness to palpation and pain limitation of motion without evidence of muscle spasms.  The neurologic examination was normal.  A diagnosis of cervical spondylosis was rendered.

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.

Cervical ROM
(Degrees)	PT ~3 Mo. Pre-Sep
	VA C&P ~ 4 Mo. Pre-Sep
	
Flex (45 Normal)	35,40,40	25	
Extension (45)	20,15,15	20	
Comment		Pain limited motion	
§4.71a Rating	10%	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  As noted above, the PEB combined three conditions under a single disability rating, coded analogously to 5003.  The VA rated the chronic neck pain condition at 20%, coded 5242 (degenerative arthritis of the spine).  The Board first considered if chronic neck pain condition was reasonably justified as separately unfitting.  Members agreed that the evidence supports that the functional limitations of the chronic neck pain could be reasonably justified as separately unfitting.

The Board then considered the rating recommendation.  The Board noted radiographic evidence of degenerative arthritis of the spine and disc disease.  Multiple treatment notes documented objective findings of pain limited cervical neck motion.  The Board noted that the physical therapy cervical flexion measurement was performed using an inclinometer versus the VASRD standard goniometric measurements; therefore the Board placed higher probative value on the VA goniometric measurements performed 4 month prior to separation.  The Board determined that cervical flexion to 25 degrees met criterion for a 20% disability rating IAW VASRD §4.71a.  There was no evidence of cervical ankylosis for a higher rating.  There was no evidence of addition functional limitation secondary to nerve involvement for additional rating under the VASRD nerve codes.  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 chronic neck pain condition.

Chronic End Right Temporomandibular Joint Pain.  Treatment records evidence that the CI sustained an injury on 30 November 2002 during a parachute exercise.  He was evaluated in the emergency department and diagnosed with acute cervical strain.  The CI subsequently reported jaw pain which was diagnosed as bilateral TMJ internal derangement in August 2003.  A MRI study dated 5 August 2003 was normal.  The NARSUM examination dated 22 January 2004 documented reports of daily right jaw pain with difficulty chewing and biting.  The examiner noted that there was no surgical or dental intervention for the jaw pain and a recommendation conservative management.  On physical examination the right jaw was tender to palpation.  A diagnosis of chronic TMJ pain was rendered.  At the VA C&P examination performed approximately 4 months prior to separation, the CI reported extreme right greater than left  pain with opening his jaw, popping, and increased pain with certain foods.  The physical examination was significant popping and pain of the jaw joints with opening.  There was deviation of the jaw to the left when the right joint popped.  The inter-incisal ROM was normal.  A diagnosis of TMJ dysfunction was rendered.

The Board directed its attention to its rating recommendation based on the above evidence.  As noted above, the PEB combined three conditions under a single disability rating, coded analogously to 5003.  The VA rated the chronic TMJ dysfunction condition at 0%, coded 9905 (temporomandibular articulation), limited motion of.  The Board first considered if chronic right TMJ dysfunction condition was reasonably justified as separately unfitting.  Although the condition was permanently profiled with limitation to soft diet, there was no performance based evidence from the record that the chronic right TMJ dysfunction condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the totality of the evidence, members agreed that the right TMJ dysfunction condition was not reasonably justified as separately unfitting; and no additional 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 the right shoulder, neck, and right jaw conditions was operant in this case and the conditions were adjudicated independently of that policy by this Board.  In the matter of the chronic neck pain condition, the Board unanimously determined that it was separately unfitting and by consensus recommends a disability rating of 20%, coded 5242, IAW VASRD §4.71a.  In the matter of the chronic right shoulder pain condition, the Board unanimously determined that it was separately unfitting and recommends a disability rating of 10%, coded 5099-5003, IAW VASRD §4.71a and § 4.59.  In the matter of the right temporomandibular joint dysfunction condition, the Board unanimously determined that it was not separately unfitting and agrees that it cannot recommend it for 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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic right shoulder pain with instability 	5099-5003	10%	
Chronic Neck Pain	5242	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131016, 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 XXXXXXXXXXXXXXX, AR20150010366 (PD201301771)

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:

						
CF: 
(  ) DoD PDBR
(  ) DVA