RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01091
BRANCH OF SERVICE:  Army	Separation Date:  20070305

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Military Police, medically separated for chronic low back and right shoulder pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent U3 L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic low back pain with Degenerative Disc Disease (DDD) at L4-L5 and L5-S1” and “right shoulder pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic back pain due to degenerative disk disease, without neurologic abnormality…” as unfitting with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD), rated 10% and “chronic pain right shoulder” rated at 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.  

CI CONTENTION:  “Continued chronic pain since time of injury.  Because of injuries and associated pain, I have been continuously unemployed since my date of separation.  I am currently living with family because I cannot work or afford to live on my own.”  Her 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 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 20070111	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain due to DDD, without Neurologic Abnormality…	5299-5242	10%	Lumbosacral Sprain with Degenerative Joint Disease (DJD)	5010-5237	10%	20070523	
Chronic Pain Right Shoulder	5099-5003	10%	Residuals of Coracoid Impingement Syndrome, Post Arthroscopy, Right Shoulder (Dominant)	5201-5010	10%	20070523	
			Decreased Grip Right Hand a/w Shoulder…	8599-8515	10%	20070523	
Other x 0 (Not In Scope)	Other x 7	
RATING:  20%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20071010 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Back Condition.  The CI developed back pain in 2004 after being thrown against a turret in a truck while in-theater.  X-rays and CT scan documented mid-thoracic scoliosis (abnormal lateral contour) with lumbar spondylosis and spondylolysis (degenerative changes and inflammation) and disc bulges at multiple levels.  MRIs documented mild lumbar spinal stenosis (narrowing of the spinal canal) and foraminal stenosis with a diffuse posterior disk bulge.  An electromyogram (EMG) performed in September 2005 for low back pain and right leg pain worse than left leg pain was normal with no evidence for nerve root lesion or peripheral neuropathy.  

The initial MEB Narrative Summary (NARSUM) exam, approximately 7 months prior to separation, documented that the CI reported chronic back pain with radiation to her left leg.  The Neurosurgeon did not recommend surgery.  The MEB NARSUM exam approximately 3 months prior to separation documented that the CI reported constant back pain that increased in intensity with prolonged standing, walking, or sitting; lifting, and bending.  The back pain greatly interfered with her performing her MOS such as lifting heavy loads, digging fighting positions and doing running, jumping and sit-ups.  The examiner opined that the CI’s prognosis was fair.  The MEB NARSUM physical exam findings are summarized in the chart below.  

The VA Compensation and Pension (C&P) exam approximately 3 months after separation documented that the CI continued to report back pain with radiation into both legs, with the right leg worse than the left leg.  She required a back brace when she went shopping.  The VA C&P physical exam findings are summarized in the chart below.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the back condition as 5299 analogous to 5242 (degenerative arthritis of the spine) and rated at 10%.  The VA coded the back condition as 5010 (arthritis, due to trauma, substantiated by X-ray findings) with 5237 (lumbosacral strain) and rated at 10%.  The MEB examiner documented painful motion and mild tenderness muscle spasm; however the muscle spasm did not cause an alteration in the normal gait.  The VA C&P examiner documented tenderness and painful motion.  The CI met the 10% rating criteria of “localized tenderness not resulting in abnormal gait or abnormal spinal contour” or based on ROM criteria.  There was no evidence of more limited thoracolumbar spine ROMs or periods of incapacitation for higher rating.  The General Rating Formula for the Spine includes all thoracolumbar spine pathology and includes symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the affected spine.  Although the CI reported LBP with radiation to both legs, the EMG was normal and there was no objective evidence of fixed motor weakness.  The abnormal patella reflex and the post-separation VA-documented right leg sensory deficit were not to the level to interfere with duty performance.  Since no evidence of functional impairment from any radiculopathy existed in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  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 Back condition.  

Right Shoulder Condition: The right hand dominant CI injured her right shoulder after being thrown against a turret in a truck while in-theater.  Right shoulder X-rays were normal.  A right shoulder MRI done in December 2005 showed fraying or tendinopathy with a significant amount of edema (swelling).  A CT scan done in March 2006 was normal.  The CI underwent a right shoulder diagnostic arthroscopy with coracoid decompression and subacromial bursectomy in May 2006.  Despite extensive PT, orthopedic evaluations and arthroscopic surgery, the CI continued to report right shoulder pain.  The orthopedic MEB NARSUM exam approximately 4 months prior to separation documented that the CI reported sharp burning persistent right shoulder pain which worsened with sleeping, driving and activities of daily living.  She had functional limitations of an inability to perform push-ups, and inability to perform standing at parade rest, an inability to carry a weapon or wear armor.  The examiner rated the pain according to the American Medical Association (AMA) pain scale at slight and constant.  The MEB NARSUM physical exam findings are summarized in the chart below.  The VA C&P exam approximately 3 months after separation documented that the CI continued to report progressively worse shoulder pain.  She reported a reduced right hand grip with cramps and numbness and she would drop objects.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the right shoulder condition as 5099 analogues to 5003 (degenerative arthritis) and rated at 10%.  The VA coded right shoulder condition as 5201 (arm, limitation of motion of) with 5010 (arthritis, due to trauma, substantiated by X-ray findings) and rated at 10% and additionally added a 10% rating for decreased right hand grip analogous to 8515 (median nerve) as mild partial paralysis secondary to the CI’s shoulder condition.  The treatment record, MEB and C&P exams documented painful motion.  VASRD §4.71a specifies for 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion” and VASRD §4.59 (painful motion) provides justification for a 10% rating.  The Board considered a higher rating under coding of 5201; however, there was insufficient evidence of arm limitation “at shoulder level (90 degrees)” for any higher rating.  There was no pre-separation evidence of right upper extremity peripheral nerve injury although the CI had complained of decreased use of the right arm and hand.  The Board adjudged that there was not sufficient evidence for addition of an unfitting right arm peripheral nerve condition and concluded it could not be recommended for additional 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 shoulder 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 (AR 635-40) for rating the right shoulder condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right shoulder 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 recharacterization of the CI’s disability and separation determination.   

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140303 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, AR20160003599 (PD201401091)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA