RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01126
BRANCH OF SERVICE:  Army 	
DATE PLACED ON TDRL:  20041204	
DATE REMOVED FROM TDRL:  20061206

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E7, Telecommunications Operator/Maintainer, medically separated from the Temporary Disability Retired List (TDRL) for “neck pain post C3-5 fusion” and “left shoulder pain and limitation of motion,” rated 0% and 0%, respectively, with a combined disability rating of 0%.  

CI CONTENTION:  The CI contends that the PEB ratings are inconsistent with the VA ratings for the same conditions; that not all of his conditions were considered by the PEB; and that the PEB ratings did not consider the radiation of pain into the extremities.  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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:  

SERVICE PEB – 20040816/20061207	VARD - 20050316	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL
Removal			TDRL
Placement	TDRL
Removal	
Neck Pain, Status Post C3-C5 Fusion, without Neurologic Abnormality	5241	20%	0%	Residuals of Spinal Fusion, Cervical Spine…	5241	20%	20%	
				Residuals of Spinal Fusion…Scar	7800	0%	0%	
Left Shoulder Pain with Limitation of Motion	5201	20%	0%	Residuals of Left Shoulder Injury	5201	20%	20%	
COMBINED RATING:  40% → 0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	
ANALYSIS SUMMARY:  

Cervical Spine Fusion Without Neurologic Abnormality.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent cervical spine surgery with discectomy and fusion at C3-C4 and C4-C5 in March 2003 for degenerative disc disease.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic neck pain status post fusion C3-C4 and C4-C5” for PEB adjudication.  

Cervical spine range of motion (ROM) measurements performed by occupation health on 24 March 2004 (8 months prior to TDRL placement) were flexion 25 degrees (normal 45) and combined cervical ROM of 145 degrees (normal 340).  The CI reported relief of sensory complaints after his fusion.

The MEB NARSUM examination on 27 March 2004, 8 months prior to TDRL placement, noted complaints of worsening neck pain which increased with activity.  On examination the CI had normal gait, strength, reflexes, and sensation.  The examiner cited the above occupation therapy ROMs.  There were no other pertinent findings in the examination.  

At the 8 September 2004 VA Compensation and Pension (C&P) examination, performed 3 months before placement on TDRL, the CI reported constant neck pain at level 8 of 10, elicited by physical activity and stress.  He couldn’t turn his neck from side to side because of the pain.  He reported no incapacitating episodes during the past year.  Physical examination showed normal posture and gait.  There was no evidence of radiating pain on movement.  The CI had no muscle spasm or tenderness, but he did have painful limitation of motion recorded as active flexion to 25 degrees (normal 45) and combined ROM 275 degrees (normal 340) after repetition.

At the primary care appointment on 4 October 2004, 2 months before placement on TDRL, the examiner noted decreased ROM with flexion of 10 degrees (normal 45 degrees).  

At the TDRL NARSUM evaluation on 31 July 2006, 4 months prior to TDRL removal, the CI reported radiation of pain down his left upper extremity to his little and ring fingers.  On examination his reflexes and motor strength were normal.  The examiner noted that the CI had muscle guarding with all passive ROM measures.  At the physical therapy ROM study on 15 August 2006, 4 months prior to TDRL removal, the examiner noted painful and limited motion recorded as active flexion to 10 degrees (normal 45), extension 30 degrees (normal 45), and combined ROM 135 degrees (normal 340) after repetition.  There were no other pertinent examination findings.  

The Board directed attention to its rating recommendation based on the above evidence.  The Board first considered its rating recommendation at the time of placement on TDRL.  The PEB rated the neck condition 20% under the 5241 code (spinal fusion), citing combined cervical ROM of 145 degrees.  The VA also assigned a 20% rating using the 5241 code for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 15 degrees but not greater than 30 degrees reported on the occupational therapy and VA examinations.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for IVDS.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  

The Board next considered its recommendation for permanent disability rating at the time of removal from the TDRL.  The PEB rated the neck condition 0% under the 5241 code, citing “ROM limited by pain (thus not ratable)” and “no tenderness or spasm.”  This was likely application of application of AR 635-40, B-29 (in effect at the time), as VASRD compliant ratings IAW VASRD criteria are based on active (not passive) ROMs.  There was no proximate VA examination or rating for comparison.  The Board agreed that a 30% rating, was justified for limitation of flexion not greater than 15 degrees reported on the physical therapy examination proximate to TDRL removal.  There remained no documentation of IVDS, or evidence of ratable peripheral nerve impairment which would provide for additional rating.  

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 neck condition at the time of TDRL placement, and 30% at TDRL removal.  

History of Chronic Left Shoulder Pain and Limitation of Motion.  According to STRs and the MEB NARSUM, the right-hand dominant CI injured his left shoulder in 2000 while playing flag football.  Radiographic studies showed a possible acromioclavicular separation.  Despite treatment, the left shoulder condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “left shoulder pain…secondary to osteoarthritis” for PEB adjudication.  

At the time of the occupational therapy ROM evaluation on 24 March 2004, 8 months prior to placement on TDRL, the examiner found decreased left shoulder ROM recorded as flexion of 120 degrees (normal 180 degrees) and abduction of 85 degrees (normal 180 degrees).   

The MEB NARSUM examination on 27 March 2004, 8 months prior to TDRL placement, noted that despite complaints of left shoulder pain and decreased ROM, the CI had been able to “soldier on.”  Other than the cited occupational therapy ROM measurements, there were no pertinent findings in this examination.  At the 8 September 2004 VA Compensation and Pension (C&P) examination, performed 3 months before placement on TDRL, the CI reported left shoulder pain that radiated down the left arm and occurred constantly, but did not cause incapacitation.  On examination the left shoulder range of motion following repetitive movement showed flexion of 100 degrees (normal 180 degrees) and abduction of 90 degrees (normal 180 degrees).   

At the TDRL NARSUM evaluation on 31 July 2006, 4 months prior to TDRL removal, the CI reported that raising his left “arm up laterally [caused] discomfort and lifting anything over 60 pounds [was] painful…”  At the physical therapy ROM study on 15 August 2006, 4 months prior to TDRL removal, the examiner noted painful and limited motion of the left shoulder recorded as flexion of 100 degrees (normal 180 degrees) and abduction of 85 degrees (normal 180 degrees).   There were no other pertinent examination findings.  

The Board directed attention to its rating recommendation based on the above evidence.  The Board first considered its rating recommendation at the time of placement on TDRL.  The PEB assigned a 20% rating under the 5201 code (arm limitation of motion), citing abduction limited to 85 degrees.  The VA also assigned a 20% rating using the 5201 code for limitation of arm motion at shoulder level.  The VASRD §4.71a threshold for rating for ROM impairment (code 5201, arm limitation of motion) of the non-dominant arm is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion limited to this level.  The highest 30% rating for a non-dominant arm requires motion limited to “25 degrees from side,” but examinations did not reflect this degree of limitation.  There was no fibrous union or nonunion of the humerus to justify a higher rating under the 5202 code (humerus, other impairment of), and no higher ratings available under the 5203 code (clavicle or scapula, impairment of).  

The Board next considered its recommendation for a permanent disability rating at the time of removal from the TDRL.  The PEB assigned a 0% rating under the 5201 code, citing “passive abduction, with pain, to 135 degrees.”  This was likely application of application of AR 635-40, B-29 (in effect at the time), as VASRD compliant ratings IAW VASRD criteria are based on active (not passive) ROMs.  The 20% rating for the non-dominant arm requires motion limited to “at shoulder level” and the TDRL examination reflected this degree of limitation with active ROM.  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 left shoulder condition at the time of TDRL placement, and 20% at TDRL removal.  

BOARD FINDINGS:  In the matter of the neck condition, the Board unanimously recommends no change in rating for TDRL entry; and on TDRL removal, a disability rating 30%, coded 5241 IAW VASRD §4.71a.  In the matter of the left shoulder condition, the Board unanimously recommends no change in rating for TDRL entry; and on TDRL removal, a disability rating of 20%, coded 5201 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  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 the prior medical separation:  

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
History of Chronic Neck Pain Post C3-5 Fusion	5241	20%	30%	
History of Chronic Left Shoulder Pain and Limitation of Motion	5201	20%	20%	
RATING	40%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140302, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160011334 (PD201401126)

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 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