RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00847
BRANCH OF SERVICE:  Army	BOARD DATE:  20140826
SEPARATION DATE:  20080523

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (68W20/Health Care Specialist) medically separated for low back and right shoulder conditions.  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/L3 profile and referred for a Medical Evaluation Board (MEB).  Chronic right ankle pain due to ankle instability, chronic low back pain (LBP) due to lumbar facet syndrome and chronic right shoulder pain, residual of previous acromioclavicular separation conditions, characterized as medically unacceptable, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated lumbar facet syndrome with LBP and right acromioclavicular separation with residual right shoulder pain conditions as unfitting, rated 10% and 10% respectfully, with application of the VA Schedule for Rating Disabilities (VASRD).  The remaining condition was not ratable due to non-compliance or refusal of treatment IAW Department of Defense Instruction (DoDI) 1332.39 para B-3C.  The CI made no appeals and was medically separated.

CI CONTENTION:  “After I returned from Iraq, I was put on anxiety medication.  I was seen by a Physicians Assistant several times to adjust my medication because they did not seem to help my problem.  I was never referred to or evaluated by a psychiatric professional.  Once I was medically discharged, I continued to suffer from anxiety and anger related issues.  I was evaluated by a psychiatric professional at the VA and informed that I suffer from PTSD.  I currently take two medications to help manage my condition.  I feel that I should have been evaluated for this condition while I was still in the military because I did not suffer from this diagnosis prior to my military service.  I also feel that my PTSD should have been considered as part of my medical board evaluation process.”  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 those conditions identified, but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting low back and right shoulder conditions are addressed below.  The not rated right ankle condition was not contended; and, thus is not within the DoDI 6040.44 defined purview of the Board.  The contended posttraumatic stress disorder condition was not identified by the MEB or PEB; and, thus is not within the DoDI 6040.44 defined purview of the Board.  These, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation.  The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career and then only to the degree of severity present at the time of final disposition.  However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

RATING COMPARISON:

Service IPEB – Dated 20080415	VA* - (.7 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Facet Syndrome with Low Back Pain	5299-5237	10%	Lumbar Sprain	5237	10%	20080710	
Right Acromioclavicular Separation…	5099-5003	10%	Residuals, Right Shoulder Acromioclavicular Separation	5299-5203	10%	20080613	
Other x 1 (Not in Scope)	Other x 2	20080613	
Combined:  20%	Combined:  30%	
*Derived from VA Rating Decision (VARD) dated 20080710 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Lumbar Facet Syndrome with Low Pack Pain.  Service treatment records reflect that the CI first reported LBP in 2006.  There was no documented inciting event or injury.  He was diagnosed with lumbar facet syndrome (back pain due to instability of the joints, facet joint, that link the spine together) and treated with chiropractic care and physical therapy.  X-ray evaluations were negative for bony abnormalities, malalignment and soft tissue abnormalities.

At the MEB narrative summary (NARSUM) examination dated 7 February 2008, approximately 3 months prior to separation, the CI reported daily LBP with occasional sleep disturbance.  There was no radiation of the pain down the legs, numbness or paresthesia (tingling sensation).  He reported difficulty lifting secondary to pain.  He used 800 milligrams of Motrin for pain without relief.  The physical examination was significant for pain limited lumbar flexion.  There was no tenderness to palpation, guarding or spasms.

At the VA Compensation and Pension (C&P) examination dated 25 June 2008, approximately a month after separation, the CI reported LBP rated 6/10.  There was no pain radiation or reported neurologic involvement.  X-ray evaluations dated 13 June 2008 were negative.  The physical examination was significant for decreased forward flexion to 80 degrees with painful motion at the extreme of flexion and lumbar tenderness to palpation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the LBP condition as unfitting.  The PEB and VA rated the LBP condition at 10%, coded 5237 (lumbosacral strain).  The Board considered if there was evidence for a higher rating under the VASRD General Rating Formula for Diseases and Injuries of the Spine.  There was no evidence of limitation for forward flexion less than 60 degrees, muscle spasms or guarding severe enough to result in an abnormal gait, or abnormal contour or incapacitating episodes totaling at least 2 weeks but less than 4 weeks, for a 20% disability rating.  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 low back condition.  

Right Acromioclavicular Separation with Residual Right Shoulder Pain.  The MEB NARSUM Examination dated 7 February 2008 documented that the CI sustained a right acromioclavicular separation after a fall in September 2004.  The CI continued to report persistent right shoulder pain subsequent to the fall.  He reported some relief with the use of anti-inflammatory medications.  The pain worsened with push-ups and after lifting heavy objects.  The NARSUM examination was significant for full, but painful right shoulder abduction and forward flexion.

At the VA C&P examination dated 25 June 2008, approximately a month after separation, the CI reported right shoulder pain of 5/10.  He reported some relief with the use of antiinflammatory medications.  The pain worsened with push-ups and after lifting heavy objects.  The physical examination was significant for tenderness to palpation over the acromioclavicular joint.  There was no pain with motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the LBP condition as unfitting.  Both the PEB and VA assigned a disability rating for 10% for the right acromioclavicular separation with residual right shoulder pain condition.  The PEB coded right acromioclavicular separation with residual right shoulder pain condition analogous to 5099-5003 (degenerative arthritis).  The VA coded the right acromioclavicular separation with residual right shoulder pain condition analogous to 5299-5203 (impairment of the clavicle).  The Board considered if there was evidence for a higher rating under any VASRD shoulder coding option.  There was no evidence of nonunion of the clavicle with loose movement (5203) or limitation of arm motion at shoulder level (5201) for a 20% disability rating.  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 acromioclavicular separation with residual right shoulder 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.  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 low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right acromioclavicular separation with residual right shoulder pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 20140218, 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, AR20150006623 (PD201400847)

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