RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00422
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20030801

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Cannon Crewmember) medically separated for persistent headaches, neck pain and bilateral shoulder pain.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The “post traumatic cephalgia” and “chronic neck pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (chronic bilateral shoulder pain) for PEB adjudication.  The Informal PEB adjudicated the persistent headaches and neck pain as unfitting, rated 10% and 0% respectively.  The remaining condition was determined to be not unfitting.  The CI appealed to the Formal PEB (FPEB), which changed the PEB findings and ratings, keeping the persistent headache as unfitting, rated 10%, increasing the rating for the unfitting neck pain condition to 10% and adjudicating the previously not unfitting chronic bilateral shoulder pain as unfitting, rated 0%.  

CI CONTENTION:  The applicant believes he did not receive a fair medical evaluation during his Medical Board Proceedings.  His complete submission is at Exhibit A.  

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:  

FPEB - Dated 20030522	VA* - (~4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Persistent Headache… Following Head Trauma	8045-9304	10%	Chronic Headaches, Residual of Head Trauma	8199-8100	30%	20031119	
Chronic Musculoskeletal Neck Pain…	5299-5295	10%	Neck Strain, Status Post Trauma, with Stenosis	5299-5237	10%	20031119	
Bilateral Shoulder Pain…	5099-5003	0%	Bilateral Shoulder Condition	5099-5024	Deferred1	N/A	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6 	
RATING:  20%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20031217 (most proximate to date of separation (DOS)).  
1. VARD dated 20040303 rated each shoulder at 20% (5019-5201) effective to DOS; based on exam of 20040128.  

ANALYSIS SUMMARY:  

Persistent Headache Following Head Trauma Condition.  The narrative summary (NARSUM) and treatment record noted that the CI had a head injury (including neck and chest injuries) in July 2001 and had “significant headaches” since that time.  He had initial evaluation, hospitalization and treatment for brain swelling (cerebral edema) and bleed (subdural hematoma).  A January 2002 cognitive function evaluation indicated mild deficits from other mechanics that did not require assistance; reasoning and problem solving were appropriate with some mild deficits with auditory and visual stimulation and recall.  The treatment record showed multiple visits for the CI’s complaints of headache including consultations from neurology, occipital nerve blocks, pain management, physical therapy, as well as numerous sick call and clinic appointments for his headache.  Medication of Elavil (amitriptyline) was slightly helpful with no benefit from non-steroidal anti-inflammatory medications.  MRI in January 2003 noted an abnormal area (right insular ribbon) consistent with the clinical diagnosis of post-traumatic encephalomalacia (softening or loss of brain tissue).  

At the MEB exam, the CI reported that he had a constant baseline (3-4/10) headache since his injury “with exacerbation to a level of 7/10 that he reported as occurring approximately 5-6 times daily.  He states that these require him to stop whatever activities he is involved in and rest and take abortive medication to allow the headache to decrease to the baseline, soldier states that it typically takes 10-15 minutes for these headaches to return to baseline.”  The CI noted light sensitivity (photophobia) and mild visual blurring during exacerbations.  He denied aura or seizures.  The MEB physical exam performed 5 months before separation documented a normal neurologic exam.  The diagnosis was post traumatic cephalgia.  The CI subsequently had increased headache pain and was started on narcotic pain medication and also seen in the ER in April 2003.  

At the VA Compensation and Pension (C&P) exam performed four months after separation, the CI reported frequent headaches (not migraines) since his accident.  “The attacks are dull pain whole head, slight tightness back of head.  When the attacks occur, he is able to go to work but requires heavy medication.  The headache attacks average once every 1 days and each attack lasts for 10 minutes,” was reported.  Treatment was with Zomig, Elavil, and gabapentin.  “There is no functional impairment resulting from the above condition.  The condition resulted in 30 minutes of time lost from work.”  Neurologic exam was normal.  MRI of the brain was abnormal and documented “bilateral medial temporal polar and subinsular encephalomalacia most likely related to remote head trauma;” and mild (incidental) bihemispheric white matter microvascular ischemic demyelination.  The diagnosis was head trauma with residuals.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the headache condition at 10% under 8045 (brain disease due to trauma) coded 8045-9304 as directed by the 8045 criteria in effect at the time for “purely subjective complaints such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma.”  The VA rated the headache condition at 30% analogous to 8100 (migraine).  The 30% criteria under 8100 are “with characteristic prostrating attacks occurring on an average once a month over last several months.”  

The Board deliberated if the CI’s headache symptoms and frequency more nearly approximated the “characteristic prostrating attacks” disability picture of 8100 or the “subjective complaints of headache” under disability code 8045.  There was no diagnosis of migraine headaches and the Board adjudged that the CI’s headaches were not “characteristically prostrating attacks” at the time of separation.  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 persistent headache following head trauma condition.  

Chronic Musculoskeletal Neck Pain Condition.  The NARSUM and treatment record noted onset of neck pain at the same time as the head injury above (July 2001).  The CI responded minimally to medications, tender point injections and physical therapy.  At the MEB exam, the CI reported chronic neck pain that increased with activity and when doing sit-ups.  The MEB physical exam noted “neck was supple with slight tenderness to palpation.”  Neurologic and motor exams were normal.  Neck X-ray was negative.  

At the VA Compensation and Pension (C&P) exam performed 4 months after separation, the CI reported similar history and complaints.  Exam documented cervical tenderness with pain-limited range-of-motion (ROM) of forward flexion to 35 degrees (normal 45) and combined to 230 degrees (normal 340).  MRI of the neck in November 2003 documented mild bilateral C3-4 and right C4-5 neural foraminal stenosis.  Diagnosis was bilateral C3-4 and right C4-5 foraminal stenosis.  

The Board directed its attention to its rating recommendation based on the above evidence.  All exams documented tenderness without abnormal spinal contour meeting the 10% VASRD criteria under §4.71a in effect at the time of separation (NOTE:  The PEB was prior to the change in the VASRD spine criteria and the CI’s date of separation was after the change to the current VASRD spine criteria).  The pain-limited VA ROM’s were also within the 10% criteria level.  Pain, whether or not it radiates, is considered under the general rating formula of the spine.  There were no episodes of incapacitation of fixed neurologic deficit for any alternate or higher rating(s).  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’s 10% adjudication for the neck pain condition, but with a coding change to 5299-5237 IAW the VASRD in effect at the time of separation.  

Bilateral Shoulder Pain Condition.  The CI was right handed.  The NARSUM and treatment record noted chronic bilateral shoulder pain beginning with a vehicle accident in 2001.  The CI had multiple treatment visits for bilateral shoulder pain and findings of painful motion (to full ROM limits) and positive impingement signs on each shoulder.  At the MEB exam, the CI reported chronic bilateral shoulder pain (right worse than left) not relieved by medications or therapy.  He indicated that due to shoulder pain he had “marked difficulty doing push-ups and some pain doing sit ups.  … unable to wear the LBE, flak jacket or carry a rucksack for over 30 minutes at a time … unable to lift over 30 pounds ….”  The examiner noted multiple treatments for chronic left subacromial impingement reported as refractory to treatment.  The MEB physical exam five months prior to separation noted “demonstrates normal range of motion” for the shoulders and the CI’s pain symptoms above as well as exams indicating normal motor strength and no focal neurologic deficits.  X-ray of the right shoulder was normal.  

At the VA Compensation and Pension (C&P) exam performed six months after separation, the CI reported 2 years of bilateral shoulder pain due to acromioclavicular bursitis that was not due to injury.  Symptoms were difficulty with overhead work and chronic dull pain.  Functional impairment was difficulty with overhead work with full ROM of the shoulders.  Exam findings were bilateral tenderness to palpation at the acromioclavicular joints and pain-limited motion of each shoulder to 90 degrees of flexion and 90 degrees of abduction (normal 180 each).  X-rays of each shoulder were unremarkable.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB combined the left and right shoulder conditions under a single disability rating, coded analogously to 5003 at 0%.  The VA, using a different exam, rated each shoulder at 20% for limited motion at shoulder level.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for Service rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate shoulder ratings.  

There was evidence of impingement for each shoulder and treatment notes varied from bilateral shoulder complaints to the left shoulder or right shoulder having the greatest pain and functional impairment.  There was insufficient evidence that one shoulder was significantly less impaired than the other, and the Board agreed that each shoulder was reasonably adjudged as separately unfitting.  

The Board could not reconcile the dramatically worsened post-separation VA ROM evaluation of the shoulders compared to the entirety of the Service record which did not indicate significantly impaired ROMs of either shoulder.  The Board adjudged that the Service exams had the highest probative value for rating at separation.  Coding considerations were analogous to 5003 (arthritis), 5019 (bursitis), or 5024 (tenosynovitis); however, each uses the rating criteria under code 5003.  With regards to rating each shoulder, the Board agreed that there was sufficient evidence of painful motion and/or impingement of each shoulder IAW VASRD §4.59 (painful motion) to warrant a rating of 10% for each shoulder analogous to 5003.  After due deliberation and with deference to VASRD §4.3 (reasonable doubt), members agreed that the bilateral shoulder condition, IAW VASRD §4.71a rating criteria and accepted principles for fitness determination, warrant recommendations for separate right and left disability ratings of 10%.  

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 (AR 635-40) for rating the bilateral shoulder condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the persistent headache condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the neck pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudicated rating level of 10%, but with a coding change to 5299-5237 IAW the VASRD in effect at the time of separation.  In the matter of the combined bilateral shoulder condition, the Board unanimously recommends that it be rated for two separate unfitting conditions as follows:  left shoulder coded 5099-5003 with a disability rating of 10%, and right shoulder coded 5099-5003 with a disability rating of 10%; both 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 be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Persistent Headache…	8045-9304	10%	
Chronic Musculoskeletal Neck Pain…	5299-5237	10%	
Bilateral Shoulder Pain…	Right	5099-5003	10%	
	Left	5099-5003	10%	
RATING (w/ BLF)	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140114, 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, AR20160003588 (PD201400422)

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 re-characterize 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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA