RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01304
BRANCH OF SERVICE:  Army	BOARD DATE:  20150204
DATE OF PLACEMENT ON TDRL:  20031216
Date of Permanent SEPARATION:  20050307

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aviation Operations) medically separated for left shoulder, low back and neck conditions.  The 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 U3L2 profile and referred for a Medical Evaluation Board (MEB).  Chronic low back pain (LBP), left shoulder pain, and chronic neck 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 low back pain without neurologic abnormality, chronic left non-dominant shoulder pain, and chronic neck pain” as unfitting, rated 10%, 20% and 0% respectively, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) for the left shoulder and back conditions and referencing application of the US Army Physical Disability Agency (USAPDA) pain policy for the neck condition.  The CI was placed on the Temporary Disability Retired List (TDRL) on 16 December 2003.  Upon re-evaluation by the PEB in February 2005, all three conditions remained unfitting but with a 10% rating for the back and 0% ratings for both the left shoulder and neck.  The CI made no appeals and was removed from the TDRL and discharged with severance pay on 7 March 2005.

CI CONTENTION:  “I was originally put on TDRL and after my one year review was down-graded because I had a surgical procedure done on my shoulder that seemed to improve it, but within 6 months it went back to the same conditions.  I have had my VA disability rating reviewed and it was increased to 50% disability rating over all with my unfit conditions being 50%.  My shoulder and back are still just as bad if not worse as the day I original received the 30% DOD rating.  My neck is still not able to move very far in each direction and it has been determined that my neck and shoulder pain are causing stress headaches which I am taking propanol to help combat them.  This is documented in my VA health records.”

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:

Final Service PEB - 20050223	VA (7 Mos. Prior to TDRL Placement) - Effective 20031216	
On TDRL - 20031216	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Low Back Pain	5299-5237	10%	10%	Low Back Strain	5237	10%	20030530	
Left Shoulder Pain	5201 →
5099-5003	20%	0%	Left Rotator Cuff 	5299-5203	10%	20030530	
Neck Pain	5099-5003
→
5099-5021 	0%	0%	Cervical Strain	5237	20%	20030530	
Other x 0 (Not in Scope)	Other x 2	
Rating:  30% → 10%	Rating: 40%	
*Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation.

ANALYSIS SUMMARY:

Low Back Pain Condition.  The CI suffered from chronic LBP since approximately 1992.  Review of the service treatment record (STR) revealed several clinical visits for LBP in 1993.  The record was silent regarding low back pain until the MEB process.

The VA rating decision was based on a Compensation and Pension (C&P) exam performed on 30 May 2003 (7 months prior to placement on TDRL).  According to the VA rating document, the CI reportedly complained of “low back pain radiating down the sides,” but it was not specified if “sides” meant the lower extremities.  Recent flare-ups or exacerbation of pain were not mentioned.  The cited examination findings included range-of-motion (ROM) measurements (noted in the chart below) but did not indicate if a goniometer was used.  The VA rater did not mention gait, muscle spasm, spinal contour, painful motion, tenderness, or other clinical observations that were consistent, or inconsistent, with the cited ROM measurements.  Lower extremity motor function was reportedly normal.

At the narrative summary (NARSUM) evaluation on 25 September 2003 (3 months prior to placement on TDRL) the CI complained of difficulty with prolonged standing, sitting, doing sit-ups or running beyond his own pace and distance.  Physical examination noted a normal gait and spinal contour.  The examiner observed that “there is very minimal objective evidence that serious disease is going on.”

At the TDRL re-evaluation examination on 23 November 2004 (3 months prior to removal from TDRL) the CI reported there was no significant improvement in his condition.  Examination reported that ROM testing was accompanied by “very slow movements and apparent discomfort.”  However, there were four signs of non-organic pain, including tenderness with superficial touching.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	VA C&P ~7 Mos. 
Pre-TDRL*	PT ~5 Mos. 
Pre-TDRL	MEB ~3 Mos. 
Pre-TDRL	MEB ~ 3 Mos.
Pre-TDRL Removal	
Flexion (90 Normal)	50	80	80	90 (110)	
Extension (30)	20	10	10	20	
R Lat Flexion (30)	20	20	-	-	
L Lat Flexion (30)	20	20	-	-	
R Rotation (30)	20	-	-	30	
L Rotation (30)	20	-	-	30	
Combined (240)	150	N/A	N/A	> 170 and < 230	
Comment			No spasm		
§4.71a Rating	20% (VA 10%)	10%	10%	10%	
         *Exam not in evidence

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating at the time of placement on TDRL under an analogous 5237 code (lumbosacral or cervical strain), while the VA also rated the condition at 10% under the same code.  The Board agreed that the 10% rating by the PEB and the VA was appropriate based on the ROM data (i.e. for flexion greater than 60 degrees but not greater than 85 degrees).  However, the C&P exam supported a 20% rating for flexion greater than 30 degrees but not greater than 60 degrees.  Because the two service exams were more proximal to the time of TDRL placement and provided measurement validation, they were assigned preponderant probative value in the Board’s deliberations.  There was no evidence of muscle spasm, guarding or localized tenderness severe enough to cause abnormal gait or spinal contour; therefore a 20% rating was not justified on this basis.

Next the Board turned its attention to a permanent rating at the time of removal from TDRL.  The PEB cited “exquisite tenderness on light palpation” as a rationale for a 10% rating; however, the Board agreed that combined ROM also supported that rating (combined ROM greater than 120 degrees but not greater than 235 degrees).  Although the relevant examination omitted lateral flexion measurements, any possible combination of lateral flexion would result in combined motion greater than 120 degrees and not greater than 235 degrees.  None of the previously elaborated 20% rating criteria were in evidence.  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 chronic LBP condition.

Left Shoulder Pain Condition.  Review of the available STR found an initial complaint of left shoulder pain in April 2001.  The right handed CI indicated at that time that he hurt the shoulder while doing physical training.  Evaluation of persistent pain with magnetic resonance imaging in March 2003 showed no significant findings.  X-rays were also normal.  An orthopedic evaluation in April 2003 (10 months prior to placement on TDRL) rendered a clinical assessment of “impingement/shoulder pain…mixed picture.”  No surgical option was offered.

The NARSUM 3 months prior to placement on TDRL stated that the condition began in May 2001 around the time of a PT injury.  Examination noted no shoulder muscle atrophy or tenderness.  Painful motion was not mentioned. The examiner observed that “there is very minimal objective evidence that serious disease is going on.”

At the TDRL re-evaluation exam (3 months prior to removal from TDRL), the CI reported that a diagnostic arthroscopy of the left shoulder was planned.  Examination noted that the “left shoulder is particularly uncomfortable for him to move.”  Although ROM measurements were performed (see table below), they were not performed with active movement of the shoulder.  Painful motion was noted specifically in the inferior axilla and trapezius regions.  The examiner opined that arthroscopy would do little to help the shoulder discomfort.
The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Shoulder ROM
(Degrees)	VA C&P ~ 7 Mos. Pre-TDRL*	OT ~ 5 Mos. Pre-TDRL	MEB ~3 Mos. Pre-TDRL	MEB ~ 3 Mos. Pre-TDRL Removal	
Flexion (180 Normal)	120	90	90	170**	
Abduction (180)	120	75	75	160**	
Comments	+Painful motion				
§4.71a Rating	10%	20%	20%	N/A**	
	*Examination not in evidence
                **Measurements of passive ROM, not active ROM

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating at the time of placement on TDRL under the 5201 code (arm, limitation of motion of), while the VA assigned a 10% rating under an analogous 5203 code (clavicle or scapula, impairment of).  Under the 5201 code  a 20% rating is justified for ROM “at shoulder level” (i.e. 90 degrees).  The next higher 30% rating for the non-dominant arm requires motion to 25 degrees from the side.  Since ROM was above this level, a higher rating was not supported.  The 5203 pathway provides no rating option higher than 20%, and there was no evidence to support rating under the 5202 code (humerus, other impairment of).

At the time of removal from TDRL, the PEB rated the condition at 0% after changing the code to 5003 (degenerative arthritis) analogously.  The PEB acknowledged that motion was painful, but also concluded that ROM was “near-full” despite the fact that active ROM was not assessed.  Aside from the VASRD requirement that active ROM of a joint is the primary consideration in a rating determination, Board members agreed there was sufficient evidence of painful motion (VASRD §4.59) to warrant at least a 10% rating.  In the absence of other active ROM data, the Board also concluded that the data prior to TDRL placement was the most probative; and thus a 20% rating was justified at the time of removal from TDRL.  There was no evidence of dislocation or nonunion with loose movement to warrant a higher rating under the 5203 code, and no evidence to support rating under the 5202 code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the TDRL-placement rating of 20% for the shoulder condition, and a rating of 20% at the time of permanent separation, coded 5201.

Neck Pain Condition.  According to the STR, the CI developed neck pain concurrently with the shoulder pain.  Clinical entries in 2001 did not consistently render separate shoulder and neck pain diagnoses, sometimes portraying the pain as one condition.  Although there was some concern about a possible left upper extremity radiculopathy, later radiographic and electrodiagnostic studies were normal.

The final clinical assessment and management of the neck in evidence prior to the NARSUM was by a physiatrist in February 2002 (22 months prior to placement on TDRL).  This was a follow-up visit for “neck/shoulder pain.”  Examination showed “only minimal abnormalities” and also noted signs of non-physiologic pain.  A diagnosis of chronic strain syndrome was rendered.  The examiner observed that “there is very minimal objective evidence that serious disease is going on.”

As previously indicated, the C&P exam 7 months prior to placement on TDRL was not in evidence.  According to the VA rating document, the CI reportedly complained of “neck pain with radiation down the arms.”  No other history regarding neck symptoms, frequency, flare-ups or physical capabilities was provided.  The only examination findings reported were of ROM measurements, noted in the chart below.  Lateral flexion was not cited, but rotation measurements were listed twice.  Use of a goniometer was not specified.  The VA rater did not mention gait, muscle spasm, spinal contour, painful motion, tenderness, or other clinical observations that were consistent, or inconsistent, with the cited ROM measurements.  Upper extremity neurologic function was not described.

The NARSUM evaluation 3 months prior to placement on TDRL identified the chronic neck pain as “perhaps the most problematic condition.”  The condition reportedly developed while doing physical training in May 2001.  Physical therapy and injections were not helpful for neck pain.  He was noted to have “daily pain with no objective findings.”  Examination noted a normal gait and spinal contour.  The examiner observed that “there is very minimal objective evidence that serious disease is going on.”

At the TDRL re-evaluation examination 3 months prior to removal from TDRL the CI reported there was no significant improvement in his condition.  Examination showed tenderness of the left paraspinal trapezius muscle.  Neck ROM was “slow.”

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Cervical ROM
(Degrees)	VA C&P ~ 7 Mos. Pre-TDRL*	OT ~ 5 Mos. Pre-TDRL	MEB ~ 3 Mos. Pre-TDRL	MEB ~ 3 Mos. Pre-TDRL Removal	
Flex (45 Normal)	30	40	40	“Full” ROM	
Extension (45)	20	15	15		
R Lat Flexion (45)	-	30	-		
L Lat Flexion (45)	-	20	-		
R Rotation (80)	20	65	-		
L Rotation (80)	20	50	-		
Combined (340)	NA	220	NA		
Comment			No spasm	+painful motion	
§4.71a Rating	20%	10%	10%	0% or 10% (PEB 0%)	
                           *Examination not in evidence

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating at the time of placement on TDRL under an analogous 5003 code, with application of the USAPDA Pain Policy.  The VA rated the condition at 20% under the 5237 code.  The Board agreed that the exams supported a 10% rating (i.e. for flexion greater than 30 degrees but not greater than 40 degrees; or combined ROM greater than 170 degrees but not greater than 335 degrees).  Although the C&P exam supported a 20% rating (flexion greater than 15 degrees but not greater than 30 degrees), as previously elaborated the exams were assigned higher probative value for rating the spine at the time of placement on TDRL.  There was no evidence of muscle spasm, guarding or localized tenderness severe enough to cause abnormal gait or spinal contour; therefore a 20% rating was not justified on this basis.

At the time of removal from TDRL the PEB maintained the 0% rating, and re-defined the condition as myofascial pain.  Using the 5021 code (myositis), “full range of motion, without spinal tenderness” was cited as a rationale for rating.  While ROM remains the basis for rating under this code, the Board debated if there was sufficient evidence of painful motion to warrant a minimal rating.  In this regard it was considered that the only tenderness present was of the trapezius muscle, which was incorporated in the shoulder rating recommendation.  Therefore, IAW §4.14 (avoidance of pyramiding), it cannot be regarded as a manifestation of cervical spine dysfunction.  Although the examination of the neck observed slow motion, there were no examination findings reported such as muscle spasm or diffuse tenderness, and no history of any abnormal radiographic findings, which could support a conclusion that slow neck motion was not related to trapezius muscle pain.  The Board majority thus concluded that full active ROM was an accurate reflection of the cervical spine condition, and that the evidence did not support application of VASRD §4.59.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a rating of 10% for the chronic neck pain condition at the time of placement on TDRL, and no change in the PEB adjudication at the time of permanent separation, coded 5099-5021.

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 for rating chronic neck pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic left shoulder pain condition, the Board unanimously recommends no change in the PEB adjudication at the time of placement on TDRL, and a permanent rating after removal from TDRL of 20%, coded 5201 IAW VASRD §4.71a.  In the matter of the chronic neck pain condition, the Board unanimously a 10% rating at the time of placement on TDRL, and by a majority vote, no change in the PEB adjudication at the time of permanent separation, coded 5099-5021 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 recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Chronic Low Back Pain	5299-5237	10%	10%	
Chronic Left Shoulder Pain	5201	20%	20%	
Chronic Neck Pain	5099-5021	10%	0%	
COMBINED	40%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140311, 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 AR20150009971 (PD201401304)

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  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
40% disability rather than 30% disability for the period 16 December 2003 to 
6 March 2005 and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30%.

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 temporary disability 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 day following the six month TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 40% retired pay for the constructive temporary disability retired period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 30% effective the day following the constructive TDRL period.  

	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:

Encl		     

CF: 
(  ) DoD PDBR
(  ) DVA