RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01556
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E6, Cargo Specialist, medically separated for “chronic back pain,” “chronic neck pain,” and “chronic pain, bilateral shoulders, bilateral hips,” rated 10%, 10%, and 0%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contended for his chronic bilateral hip pain, chronic low back pain, radiculopathy (related to back pain) and chronic ankle pain.  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 - 20070712	VARD - 20080314	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5242	10%	Degenerative Joint Disease, Lumbar Spine 	5242	NSC	20080123	
Chronic Neck Pain	5299-5237	10%	Right Central Posterior C4-C5 Soft Disc Protrusion, Left Posterior C2-C3 and C3-C4 bulging Disc	5299-5243	10%		
Chronic Pain, Bilateral Shoulders, Bilateral Hips	5099-5003	0%	Right Shoulder Impingement Syndrome, Right Shoulder Arthroscopy	5099-5201	0%		
			Degenerative Left Shoulder Rotator Cuff Tendinitis and Impingement Syndrome, Left Shoulder Arthroscopy 	5099-5201	0%		
			Bilateral Hip Bursitis	5299-5251	NSC		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic back pain condition began in August 2003 without any specific injury or trauma.  A magnetic resonance imaging (MRI) study in March 2006 showed a preserved lumbar curvature, a posterior L2-L3 disk bulge but no disk herniation, and with mild to moderate degenerative disk disease.  An electroneuromyography (EMG) study in April 2006 was consistent with chronic left lumbar radiculopathy.  A repeat EMG in February 2007 showed a normal needle examination of the lower extremities and lumbar spine, with the impression of early peripheral neuropathy mostly affecting the sensory fibers.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The CI was permanently profiled and referred for a MEB.  The MEB forwarded “low back pain with radiculopathy” for PEB adjudication.  

The range of motion (ROM) examinations 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)	PT                         ~10 Mos. Pre-Sep	MEB                           ~9 Mos. Pre-Sep	NARSUM                         ~9 Mos. Pre-Sep	VA C&P                               ~2 Mos. Post-Sep	
Flexion (90 Normal)	75	80	80	60	
Combined (240)	160	175	195	210	
Comment	Painful motion	-	Tenderness	Tenderness; spasm causing abnormal contour	
§4.71a Rating	10%	10%	10%	20%	

At the physical therapy (PT) examination in January 2007, 10 months prior to separation, the CI reported pain with examination maneuvers not expected to elicit pain based on the known pathology.  ROM measures were recorded per the chart above.  Loss of motion was due to pain.  There was no localized tenderness, muscle spasm, guarding, abnormal gait or abnormal spine contour indicated.  The ROMs from the MEB DD Form 2808, Report of Medical Examination, 4 days after the PT examination are also summarized above.  

The MEB NARSUM examination on 15 February 2007, 9 months prior to separation, noted complaints of frequent lower back pain with numbness and tingling sensations in the lower extremities.  The CI was taking neuroactive medication (Neurontin) as well as narcotic pain medication (Percocet) as needed.  ROM measurements were recorded per the chart above.  Physical examination demonstrated moderate tenderness to palpation of the paravertebral muscles of the lumbosacral spine.  Straight leg raising test (for radicular symptoms) was positive.  There were no signs of non-organic pain.  The neurological examination was within normal limits with normal reflexes and sensations.  Gait was normal and there was an adequate toe and heel walk.  

At the 23 January 2008 VA Compensation and Pension (C&P) evaluation, performed 2 months after separation, the CI reported fatigue, decreased motion, stiffness, weakness, spasms and pain without radiation.  Physical examination recorded limited ROM as charted above.  There was muscle spasm severe enough to be responsible for abnormal spinal contour.  Lower extremity motor examination was normal.  There was decreased sensory examination indicated diminished pin prick and smooth sensation not following any specific dermatomal pattern.  Reflexes were normal and repetitive motion did not produce any additional limitations (negative DeLuca).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain 10%, under an analogous code 5299-5242 (degenerative arthritis of the spine), citing ROM limited by pain and tenderness, and no clinical findings of radiculopathy.  The VA adjudged the back condition as not service connected from a rating determination in May 2000 which denied service connection, and indicated that an examination performed 2 months after separation was not sufficient to overcome the not service connection determination.  

The Board considered the probative value of the multiple examinations in evidence and adjudged that the NARSUM examination had the highest probative value for rating and aligned with the preponderance of the evidence of record.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined range-of-motion (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM examination.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Electro-diagnostic studies supported some level of radicular nerve irritation or involvement, but physical examinations (PT and MEB NARSUM) proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  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 low back pain condition.  

Chronic Neck Pain.  According to the STR and the MEB NARSUM, the CI reported neck pain of uncertain etiology evidenced by stiffness and limited ROM (date unknown). An EMG study in October 2005 revealed no evidence of radiculopathy in the upper extremities.  MRI of the cervical spine in March 2006 showed a small central posterior C4, C6 soft disc protrusion.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  CI was referred for a MEB which forwarded “neck pain” for PEB adjudication.  

The ROM examinations 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)	PT                                 ~10 Mos. Pre-Sep	MEB                           ~9 Mos. Pre-Sep	NARSUM                         ~9 Mos. Pre-Sep	VA C&P                            ~2 Mos. Post-Sep	
Flex (45 Normal)	40	35	40	35	
Combined (340)	200	200	205	210	
Comment	Flexion improved from 30 to 40 with repetition		Tenderness	Spasm; tender; ROM normal for indiv	
§4.71a Rating	10%	10%	10%	10%	

At the PT examination in January 2007, 10 months prior to separation, ROM measures were recorded per the chart above.  Loss of motion was due to pain.  There was no localized tenderness, muscle spasm, guarding, abnormal gait or abnormal spine contour indicated.  The ROMs from the MEB DD Form 2808 are summarized above.  
At the MEB NARSUM examination on 15 February 2007, 9 months prior to separation, the CI reported his neck pain was exacerbated by driving and the upper limit range of motion of the neck and was relieved by rest and pain medications.  ROM measurements were recorded per the chart above.  Physical examination demonstrated mild tenderness to palpation of the paravertebral muscles of the cervical spine.  There were no signs of non-organic pain.  The neurological examination was per above.  At the 23 January 2008 VA C&P evaluation, performed 2 months after separation, the CI reported a worsened cervical spine condition with complaints of fatigue, decreased motion, stiffness, weakness, spasms and pain without radiation.  Physical examination recorded limited ROM of as charted above, but the examiner indicated this limited ROM was “normal” for the CI.  There was cervical muscle spasm and tenderness not severe enough to be responsible for abnormal gait or abnormal spinal contour.  Upper extremity motor examination was normal.  There was decreased sensory examination indicated diminished pin prick and smooth sensation not following any specific dermatomal pattern.  Reflexes were normal and repetitive motion did not produce any additional limitations (negative DeLuca).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic neck pain condition 10% under the analogous 5299-5237 code (cervical spine strain), citing motion limited by pain with tenderness and without neurologic or electrodiagnostic abnormality.  The VA assigned a 10% rating using the analogous 5299-5243 code (intervertebral disc syndrome) effective in 2007 based on their examination 2 months after separation citing limited ROM, tenderness and spasm.  The Board agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 40 degrees) and combined ROM (greater than 170 degrees but not greater than 335 degrees) reported on the MEB, NARSUM and VA examinations proximate to separation.  There was no evidence of intervertebral disc syndrome resulting in incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve 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 chronic neck pain condition.  

Bilateral Shoulder and Bilateral Hip Pain.  The PEB combined the bilateral shoulder and bilateral hip pain conditions as a single unfitting condition analogously coded 5003 (degenerative arthritis) rated 0%, with specified application of the US Army Physical Disability Agency (USAPDA) pain policy.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the bilateral shoulder and bilateral hip pain conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Bilateral Shoulder Pain.  The CI was right hand dominant.  According to the STR and the MEB NARSUM, the CI underwent right shoulder surgery on 11 May 2006 (18 months prior to separation) for impingement secondary to mild acromioclavicular joint (AC) arthropathy.  On 16 November 2006 (12 months prior to separation), the CI underwent left shoulder surgery for degenerative tendonitis of the rotator cuff with mild sub acromial and sub deltoid bursitis.  Diagnostic imaging of each shoulder documented degenerative changes.  Following recovery from surgeries, the CI experienced persistent duty limiting symptoms mostly pertaining to pain and limited ROM of his shoulders.  He was permanently profiled for bilateral shoulder pain and referred for MEB.  The NARSUM indicated both shoulders did not meet retention standards, and the MEB forwarded “right shoulder pain status post arthroscopy” as medically unacceptable for PEB adjudication.  

A PT clinic progress note on both shoulders, dated 8 February 2007 (3 months post-surgery for the left shoulder, 9 months after surgery for the right shoulder and 9 months prior to separation), showed bilateral pain on elevation and on abduction greater than 120 degrees.  The orthopedic evaluation on 4 April 2007, 7 months prior to separation indicated limited ROM and the need to continue rehabilitation.   The CI underwent bilateral shoulder trigger point injections on 28 June 2007.  

The CI was permanently profiled for his bilateral shoulder pain condition on 29 January 2007.  Duty limitations included no physical fitness testing and no push-ups.  According to the commander’s statement dated 20 June 2007, 5 months prior to separation, the CI was not performing duties in his primary MOS as he had been on convalescent leave from 19 September 2005 through 28 May 2007.  After this point, the CI was performing administrative support within the limits of his profile and specifically mentioned the left and right shoulder conditions.  

The Board considered if the right shoulder pain and left shoulder pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The Board concluded that there was not a preponderance of evidence in the service records that overcame the Board’s presumption that the right and left shoulder pain conditions were each reasonably considered separately unfitting.  The Board then considered its rating recommendation for each of the unfitting shoulders at the time of separation.  

The ROM examinations in evidence are as listed in the chart below.  

Shoulder ROM
(Degrees)	MEB                           ~9 Mos. Pre-Sep	NARSUM                          ~9 Mos. Pre-Sep	VA C&P                              ~2 Mos. Post-Sep	
	Left	Right	Left	Right	Left	Right	
Flexion (180 Normal)	95	105	110	100	105	105	
Abduction (180)	66	73	70	80	105	105	
Comments:  Surgery
R. ~18 Mo. Pre-Sep
L. ~ 12 Mo. Pre-Sep	-	-	Crepitus; deformity; tendonitis	
§4.71a Rating	20%	20%	20%	20%	10%	10%	

At the MEB examination (recorded on DD Form 2807 and 2808) in January 2007, 9 months before separation, the CI reported bilateral shoulder pain that had not resolved following surgeries.  The shoulder ROMs are summarized above.  The MEB narrative summary (NARSUM) dated 15 February 2007, 9 months prior to separation, noted the CI reported right shoulder limited motion due to pain with flare-ups and left shoulder limited ROM with pain exacerbated by driving and repetitive movements.  The shoulder ROMs are summarized above.  As noted in the cervical examinations above, there was no loss of strength in the upper extremities.  

At the 23 January 2008 VA C&P evaluation, performed 2 months after separation, the CI reported bilateral shoulder pain, stiffness, and weakness.  The examination noted normal upper extremity strength and bilateral upper extremity diminished sensory findings not following any specific dermatomal pattern.  There was crepitus, deformity and tendonitis of each shoulder with limited ROMs as summarized above.  
The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the bilateral shoulder condition with a bilateral hip condition and applied a single 0% rating (coded 5099-5003).  The VA assigned a 0% rating for each shoulder effective in 2007 using the analogous 5299-5201 code (arm, limitation of motion), citing ROM above shoulder level.  

The VASRD §4.71a threshold for rating for ROM impairment (code 5201, arm limitation of motion; at 20%) is “at shoulder level” (approximately 90 degrees from the side), and the service examinations in evidence demonstrated motion below this level.  However, the VA examination, 2 months after separation, documented ROMs slightly above shoulder level.  The Board adjudged that given the proximity of the service examinations to the shoulder surgeries that the VA examination, which was closer to separation and further from surgery, carried the greatest probative value for rating at separation.  Given the continued crepitus, tendonitis, and deformity, but with greater ROM, the Board adjudged that there was there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for each shoulder.  There were no complaints of post-surgical dislocation, subluxation, or instability for any rating above 10% for each shoulder.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends an unfitting right shoulder with a disability rating of 10% and an unfitting left shoulder with a disability rating of 10% for the bilateral shoulder condition, each shoulder coded 5021-5024.  

Bilateral Hip Pain.  The bilateral hip pain condition was profiled, mentioned in the commander’s statement, was judged to fail retention standards by the MEB and bundled as an unfitting condition by the PEB.  The profile limitations for no Army Physical Fitness Test and no unlimited running, walking or biking, could not be separated as being due to the back or bilateral hip pain condition.  The Board concluded that there was not a preponderance of evidence of the STR that overcame the Board’s presumption that the bundled bilateral hip pain condition was reasonably considered separately unfitting.  The Board then considered its rating recommendation for the unfitting bilateral hip condition at the time of separation.  According to the STR and the MEB NARSUM, the CI’s bilateral hip pain condition began prior to May 2000 with VA evidence of bursitis, and with in-service diagnostic imaging in 2004 that noted mild osteoarthritic changes in both hips.  

At the MEB examination in January 2007, 10 months before separation, the CI reported bilateral hip pain.  Physical examination showed slightly limited ROMs (not meeting the VASRD compensable limits), and pain on motion was not addressed.  The MEB NARSUM dated 15 February 2007, 9 months prior to separation, noted complaints of bilateral hip pain exacerbated by prolonged standing and walking.  Diagnostic imaging showed bilateral hip osteoarthritis.  At the 23 January 2008 VA C&P evaluation, performed 2 months after separation, the CI reported progressively worse hip pain due to bursitis/arthritis.  The examiner recorded slightly limited ROMs with hip tenderness and bursitis.  X-rays documented osteoarthritic changes of both hips.  

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the bilateral shoulder condition with a bilateral hip condition and applied a single 0% rating (coded 5099-5003).  The VA adjudged the bilateral hip bursitis condition as not service connected from a rating determination in May 2000 which denied service connection, and that their examination from 2 months after separation was not sufficient to overcome the not service connected determination.  There was no examination that clearly documented objective evidence of pain on motion for either hip, or limitation of motion ratable under any hip-specific joint codes.  However, both hips had diagnostic imaging documenting osteoarthritic changes.  The Board therefore adjudged that the CI’s bilateral hip pain condition warranted a 10% rating for X-ray evidence of involvement of two or more major joints without periods of incapacitation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends an unfitting bilateral hip pain condition with a disability rating of 10% coded 5099-5003.  

BOARD FINDINGS:  In the matter of the back pain condition and IAW VASRD §4.71a, 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 adjudication.  In the matter of the “chronic pain bilateral shoulders, bilateral hips” condition, the Board unanimously recommends that each shoulder joint be separately adjudicated as follows:  an unfitting right shoulder condition coded 5201-5021 and rated 10%, and an unfitting left shoulder condition, coded 5201-5021 and rated 10%, and that the bilateral hip joints be adjudicated as an unfitting bilateral hips condition coded 5099-5003 and rated 10%, all 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	PERMANENT RATING	
Chronic Back Pain	5299-5242	10%	
Chronic Neck Pain	5299-5237	10%	
Chronic Right Shoulder Pain 	5201-5021	10%	
Chronic Left Shoulder Pain 	5201-5021	10%	
Chronic Pain Bilateral Hips	5099-5003	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140328, w/attachments
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 XXXXXXXXXX, AR20160011461 (PD201401556)

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