RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-00130
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141204
SEPARATION DATE:  20060520

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve PO1/E-6 (SW1/Steelworker) medically separated for persistent right shoulder pain and low back pain (LBP).  These conditions could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The persistent right shoulder pain and LBP characterized as “rotator cuff (capsule) sprain and strain,” “degeneration of thoracic or thoracolumbar intervertebral disc,” and “lumbago,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded three other conditions.  The Informal PEB adjudicated “persistent right shoulder pain status post right subacromial decompression with labral debridement and partial claviculectomy” and “degenerative disk disease in the thoracolumbar spine,” as unfitting, rated at 10% and 0%, with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The persistent chronic LBP condition was determined to be a Category II condition and the follicular dermatitis Category III condition.  The remaining conditions, tobacco abuse and obesity, were considered as Category IV condition.  The CI requested and was granted a formal reconsideration of the IPEB proceedings.  The PEB reviewed the IPEB proceedings and re-affirmed the PEB findings and ratings.  The CI made no further appeals and was medically separated. 

CI CONTENTION:  “Rating was no ackuratly represent my inury’s (all injury’s some let out).”  

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 persistent right shoulder pain status post right subacromial decompression with labral debridement and partial claviculectomy and DDD in the thoracolumbar spine, Category II (persistent chronic LBP), Category III (follicular dermatitis) 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 Naval Records.

RATING COMPARISON:

Service Recon – Dated 20051222	VA - (# Mos. Pre/Post-Separation)  -or- based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Persistent Right Shoulder Pain Status Post Right Subacromial Decompression With Labral Debridement And Partial Claviculectomy	5299-5201	10%	Right Shoulder Dislocation, Status Post Arthroscopy	5203	10%	
20040510
	
Degenerative Disk Disease In The Thoracolumbar Spine	5299-5237	0%	Compression Fracture T9, T11, T12, Lumbar Spine	5239	10%	20040510
	
Persistent Chronic Low Back Pain	CAT II					
Follicular Dermatitis	CAT III	Dermatitis	7806	10%	20040510	
Other x 0 (Not in Scope)	Other x 1 (Not in Scope)		
Combined:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20040909 (most proximate to date of separation)
VARD 20080212 increased the rating to 20%.

ANALYSIS SUMMARY:

Persistent Right Shoulder Pain.  The narrative summary (NARSUM) notes the CI was injured while deployed in March 2003 when he was thrown from a truck and dislocated his right shoulder.  The shoulder was manually reduced in the field.  When the CI returned from deployment he was evaluated by a civilian orthopedic surgeon for continued shoulder pain thought to be due to a partial rotator cuff tear (RCT) and cartilage damage within the joint (labral tear).  A magnetic resonance imaging (MRI) on 25 July 2003 showed evidence of rotator cuff impingement and degenerative joint disease.  The CI had arthroscopic surgery on 9 October 2003 with subacromial decompression, partial claviculectomy and debridement of degenerative changes and a partial RCT.  Neurology consultation on 17 September 2004 noted electromyography (EMG)/nerve conduction studies to evaluate reported numbness and tingling of the arm were normal.  Shoulder and cervical spine X-rays on 11 February 2005 were normal except for post-surgical changes of the shoulder.  According to the NARSUM the CI was much improved following surgery, but continued to report shoulder pain.

At the MEB examination on 4 October 2005 (approximately 8 months prior to separation) the CI reported right shoulder pain with overhead use and occasional numbness and pain of the right upper extremity.  The MEB physical exam noted range-of-motion (ROM) of flexion 100 degrees and abduction 100 degrees, limited by pain.  There was no swelling, muscle atrophy or deformity of the shoulder.  Clinical evaluation was positive for impingement and negative for instability.  Bilateral upper extremity (UE) reflexes, sensation and pulses were normal.

At the VA Compensation and Pension (C&P) examination on 10 May 2004 (approximately 24 months prior to separation), the CI reported right shoulder pain and pain and numbness of the  right UE (RUE).  The CI reported lost work time due to the shoulder condition but the examiner noted that there had been no physician prescribed bed rest.  The examination of the right shoulder was missing from the C&P examination, but was cited in the 9 September 2004 VARD.  Right shoulder ROM was flexion 180 degrees and abduction 180 degrees, both reduced to 170 degrees with repetition due to pain.  There was normal RUE strength and reflexes with mild decreased sensation of the forearm and back and palm of the hand, noted as “non-specific numbness.”  Right shoulder X-ray showed no abnormality.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition as 10% for painful motion, coded 5299-5201 (analogous to limited arm motion).  The VA rated it 10%, code 5203 (impairment of the clavicle or scapula). The Board agreed that the evidence in the record at both the MEB and C&P examinations supported the 10% rating IAW VASRD §4.59 (painful motion) for painful limited arm motion that did not meet the threshold compensable rating of 20% for “limited motion at shoulder level.”  Board practice when rating as code 5201 has considered 90 degrees of abduction or flexion “shoulder level.”  There was no evidence in record of any other ratable impairment of the shoulder or incapacitating episodes allow for higher or additional rating (ankylosis, impairment of the humerus, or nonunion or dislocation of the clavicle or scapula).  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 right shoulder condition.

The Board also considered if additional disability rating was justified for peripheral nerve impairment related to the right shoulder condition.  The CI reported symptoms of right shoulder and RUE pain and numbness but there was no abnormality noted on neurological evaluation, including a normal EMG.  RUE strength and reflexes were normal at both the MEB and C&P examinations and, there was non-specific decreased sensation at the C&P.  There is no evidence in this case that any referred pain from the shoulder or the subjective decreased sensation could be described as functionally impairing apart from the right shoulder condition.  The Board concluded therefore that there was insufficient evidence to recommend additional disability rating for RUE peripheral nerve impairment.

Thoracolumbar Spine Degenerative Disk Disease.  The NARSUM notes following the same incident in March 2003 noted above, the CI reported mid to lower back pain.  Notes in the treatment record indicated the CI reported back pain with pain and numbness radiating to the right anterior thigh.  Lumbar spine X-rays performed on 18 July 2003 and an MRI on 28 July 2003 showed slight loss of lower thoracic vertebral height with a questionable T11 compression fracture and associated osteoarthritic changes suggesting the findings may have been old.  There were a small disc bulges noted on MRI at mid-thoracic and lower lumbar levels (T7-T8 and L5-S1), without nerve impingement or spinal stenosis.  Civilian orthopedic evaluation on 4 September 2003 indicated imaging studies showed degenerative changes and wedging of T11 and the orthopedic assessment was “thoracic fractures-clinically healed” and no further treatment was recommended.  According to the NARSUM EMG/NCV studies of the RLE were normal.  A neurology consult on 17 September 2004 indicated “EMG nl (normal)” but noted right lateral femoral cutaneous neuropathy (localized sensory nerve).

At the MEB examination on 3 October 2005 (approximately 5 months prior to separation), the CI reported mid to low back pain that radiated up and down his spine, but not to the LE.  He did not report any LE weakness, numbness or other neurological problem.  The MEB physical exam noted tenderness to palpation along the lower spine with no deformity.  Lumbar ROM was 70 degrees (normal 90 degrees), with combined ROM of 210 degrees (normal 240 degrees) and painful motion was noted.  LE extremity strength, sensation and reflexes were normal and straight leg raise was negative, with “no radicular symptoms” noted.  Testing was consistent with spinal arthritis.  The examiner noted that the EMG was normal but the neurologist noted “subjective lateral femoral cutaneous nerve dysesthesia [painful or noxious sensation].”

At the VA C&P examination on 10 May 2004 (approximately 24 months prior to separation), the CI reported constant upper back pain and stiffness.  He reported lost time from work but the examiner noted there had been no periods of physician prescribed bed rest.  On examination posture and gait were normal.  There was tenderness of the thoracolumbar spine noted with mild muscle spasm, with full ROM with painful motion, but no radiation of pain with movement.  Strength, sensation, reflexes and SLR testing of the LE were normal.  Thoracic spine X-rays noted mild anterior wedging of multiple lower thoracic vertebrae with degenerative changes.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the back condition as an unfitting thoracolumbar DDD condition and chronic LBP as a related Category II condition and rated the unfitting thoracic lumbar (TL) DDD as 0%, coded 5299-5237 (analogous to lumbosacral strain).  The VA rated the back condition as 10% coded as 5239 (spondylolisthesis or segmental instability).  The Board noted that the evidence at both the MEB and the VA C&P examinations supports the 10% rating according to current VA rules for rating the spine which were in effect at the time of separation due to painful, limited ROM at both exams and mild muscle spasm that did not cause an abnormal gait or spinal contour noted at the C&P.  There was no evidence to support a higher rating of 20% based on ROM or muscle spasm or guarding severe enough to cause an abnormal gait or spinal contour and there was no evidence of physician prescribed bed rest to allow for a higher evaluation based on incapacitating episodes.  Therefore, the Board agreed that the TL spine condition met the 10% rating, as code 5235-5292 (spinal arthritis with vertebral fracture).  The Category II condition noted by the PEB constituted a component of the CI’s thoracolumbar DDD, already captured by code 5292, and would therefore not be considered separately ratable under VASRD §4.14 (avoidance of pyramiding).  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 TL spine condition.

The Board also considered if additional disability rating was justified for peripheral nerve impairment related to the TL spine condition.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  The CI initially reported symptoms of back pain that radiated to the RLE, with sensory disturbances of the right thigh.  Neurological evaluation noted no abnormality except a subjective sensory disturbance of the right anterior thigh that is often due to a local compressive neuropathy and not related to radicular symptoms from the back and LE strength, sensation, and reflexes were normal at both the MEB and C&P examinations.  Radiating pain from the back condition is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)…”  There is no evidence in this case that there was any LE motor or sensory deficit related to the TL spine condition that could be described as functionally impairing.  Therefore, the Board cannot recommend additional rating based on peripheral nerve impairment.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the dermatitis condition 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.

Dermatitis.  At the VA C&P examination on 10 May 2004 the CI reported a rash since April 2003 with constant itching, crusting and shedding and that he was on no treatment.  On examination there was a red, raised rash of the back, not associated with systemic disease or nervous condition.

The NARSUM notes the CI was treated for a rash following deployment which he attributed to exposure to toxic substances while deployed.  Notes in the STR indicated the CI was evaluated by dermatology for a pruritic (itchy) rash on the abdomen, back, lower extremities and under the arms, responsive to oral steroids, but recurrent upon cessation.  Dermatology notes indicated a skin biopsy was performed December 2003 which indicated a chronic process.  Dermatology evaluation on 7 July 2004 noted “still with itchy rashes sporadically no major visual eruptions today…” and the assessment noted probable diagnosis of eczema from contact or drugs, etc.  Later examinations indicated that further allergy evaluation was usually of no benefit.  The DD Form 2808, Report of Medical Examination, on 6 August 2005 noted a diffuse red, raised rash on the back and legs.  The MEB examination 4 October 2005 noted “no rash on the back and no lesions.”  A note in the STR on 5 December 200, approximately 2 months prior to separation, indicated the CI continued to report a persistent rash and was treated with topical steroid medication for eczema.

The dermatitis condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the dermatitis condition and so no additional disability rating is 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the right shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the TL DDD condition, the Board unanimously recommends a disability rating of 10%, coded 5235-5242 IAW VASRD §4.71a.  In the matter of the contended dermatology 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Shoulder Pain	5299-5201	10%	
Thoracolumbar Degenerative Disc Disease	5235-5242	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131222, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:    (a) DoDI 6040.44
        (b) PDBR ltr dtd 24 Apr 15 ICO XXXXXXXXXXXXXXX    
        (c) PDBR ltr dtd 24 Apr 15 ICO XXXXXXXXXXXXXXX
        (d) PDBR ltr dtd 8 Jan 15 ICO XXXXXXXXXXXXXXX
        (e) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
        (f) PDBR ltr dtd 21 Apr 15 ICO XXXXXXXXXXXXXXX
        (g) PDBR ltr dtd 7 Apr 15 ICO XXXXXXXXXXXXXXX

1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (g).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     e. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.
 
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are completed.