RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01660
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20091101

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E5, Aviation Warfare Systems Operator Second Class, medically separated for “chronic low back pain” and “right shoulder pain,” rated 0% and 10%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  The CI was not properly evaluated for his mental health condition.  Please consider all conditions.  His 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 based upon a 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  20090707	VARD - 20100804	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5239	0%	Lumbar Spine Intervertebral Disc Syndrome With Chronic Pain Syndrome	5243	10%	20091013	
L4-5 Disk Bulge	Category II					
S/P Spondylolisthesis, S/P Bilateral Pedicle						
Right Shoulder Pain	5099-5003	10%	Status Post Surgery of the Right Shoulder With Residual of Scars, Pain and Instability with Chronic Pain Syndrome	5201	10%	20091013	
Male Stress Incontinence	Category III	Bladder Dysfunction a/w Lumbar Spine/Chronic Pain Syndrome …	7542	0%	20091013	
Rare Reported Priapism	Category III	Erectile Dysfunction a/w Lumbar Spine/Chronic Pain Syndrome …	7522	0%	20091013	
Adjustment Disorder	Category IV	Bipolar Disorder, Mixed Mania and Depression	9432	50%	20091013	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) the CI’s back condition began in 2004 after sustaining a back injury during a jump into water from height as a Search and Rescue aircrew man.  The CI underwent back surgery (laminectomy) in 2005 for spondylolisthesis and was able to return to duty.  Following a re-injury of his back in September 2006, the CI developed chronic back pain, was not considered a candidate for additional surgery, and further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded lumbago for PEB adjudication.  Radiographic studies August 2008 showed mild disc bulges at L4-5 and L5-S1.  

The MEB NARSUM examination on 29 March 2009, 8 months prior to separation, noted complaints of low back pain with intermittent radicular symptoms.  The CI denied priapism or troubling incontinence.  Physical examination showed “modestly decreased flexion, extension and side bend of lumbar spine, moderate tenderness to palpation of bilateral lumbar paraspinal musculature.”  Gait, motor and reflex examinations were normal.  There was questionable right leg light touch decrease in the S1 distribution, and neurologic examination was otherwise normal.  Treatment note from 28 April 2009 documented decreased lumbar flexion, extension and side bending with a normal neurologic exam.  At the physical therapy PEB evaluation for ROMs dated 29 April 2009 (8 months prior to separation), the CI complained of back pain with radiating pain into both legs, history of priapism, and occasional mild incontinence (bladder).  Range of motion (ROM) measurements were taken with a bubble inclinometer with a dual inclinometer method, and seated goniometric for rotations.  

At the VA Compensation and Pension (C&P) examination in October 2009, performed 1 month before separation, the CI reported stiffness, fatigue, spasms, decreased motion and numbness associated with the spinal condition.  He indicated that he had weakness of the leg and foot; bowel problems with slight fecal leakage less than 1/3 of the day (no pad); priapism and decreased sensation; bladder problem without incontinence or urgency (“urinary retention which does not require catheterization”).  Physical examination showed a normal gait and provocative tests for radiculopathy were negative.  There was tenderness without muscle spasm or abnormal spinal contour.  ROM was painful with flexion to 90 degrees (normal 90) and combined ROM of 210 degrees (normal 240).  There was no additional limitation following repetition.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 5239 code (Spondylolisthesis), citing no limited motion.  The VA assigned a 10% rating using an analogous 5243 code (Intervertebral Disc Syndrome) based on the VA C&P examination 1 months before separation, citing painful and limited motion.  The Category II conditions of L4-L5 disk bulge and status post L5 spondylolisthesis, s/p L5 bilateral pedicle screw fusion were appropriately included under the rating for the unfitting thoracolumbar (chronic low back pain) condition and are not separable IAW VASRD §4.14 (avoidance of pyramiding).  The Board noted the PT ROM examination cited by the PEB provided ROM values for the thoracolumbar spine performed using a bubble inclinometer and dual inclinometer method, not the goniometric thoracolumbar ROM specified by the VASRD (IAW §4.46, accurate measurement and §4.71a, Plate V).  There was also no indication of repetition or evaluation of other ratable features of the spine.  The Board placed higher probative value on the pre-separation VA examination which was closer to the date of separation, more detailed, included consideration of DeLuca, and better aligned with the remainder of the record.  

The Board agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees) or tenderness reported on the VA, examination.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS).  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  The Board therefore concluded that an 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 recommends a disability rating of 10% for the back condition, coded 5242.  

Right Shoulder Pain (Dominant).  According to the STR the MEB NARSUM the CI was right-hand dominant.  The CI underwent right shoulder surgery in 2002 for repair of the labrum to correct dislocations and instability.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty (see FPEB rationale).  The MEB did not address this condition to forward to the PEB.  Evaluation for the PEB dated 19 June 2009 noted complaints of continued rare intermittent right shoulder pain and reported radiation up into the right neck and down to the mid forearm.  The CI indicated that he still had apprehension with forced internal rotation and adduction far across the midline, but this occurred without his conscious attempt to induce subluxation.  Examination noted no tenderness and painless ROM with decreased internal rotation with a click.  Instability was noted (subluxation with extreme adduction and internal rotation), without signs of impingement.  There was no weakness.  The PEB indicated that during testimony the CI avoided motion with his right shoulder and gestured almost exclusively with his left hand.  

At the VA C&P examination in October 2009, performed 1 month before separation, the CI reported weakness, stiffness, subluxation, pain and dislocation.  He reported experiencing flare-ups as often as 15 times per week and each lasted for 2 hours.  The flare-ups were precipitated by physical activity and stress.  The CI reported functional impairment of no lifting overhead or crossing his arms.  Physical examination showed right shoulder instability, tenderness and guarding of movement with moderate subluxation.  There was moderate subluxation, with no weakness or tenderness.  ROM was painful with flexion to 160 degrees (normal 180) and abduction to 140 degrees (normal 180), with no decrease following repetition.  

The Board directed attention to its rating recommendation based on the above evidence.  The FPEB assigned a 10% rating under an analogous 5099-5003 code (degenerative arthritis), citing mild instability and ongoing pain.  The VA also assigned a 10% rating using an analogous 5201 code (arm, limitation of motion) based on the VA C&P examination 1 month before separation, citing painful and limited motion.  The VASRD §4.71a threshold for rating for a 20% ROM impairment under code 5201 (arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion above this level.  However, Board members agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion) or functional loss based on the FPEB rationale and the VA pre-separation exam.  There was no malunion or recurrent dislocation of the humerus with moderate deformity or guarding at shoulder level and no dislocation or nonunion of the clavicle or scapula with loose movement to justify a higher rating under the 5202 (humerus, other impairment of) or 5203 (clavicle or scapula, impairment of) codes.  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.  

Contended Cat III PEB Conditions:  Male Stress Incontinence and Rare Reported Priapism.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The contended conditions was not part of any limited duty (LIMDU) or implicated in the non-medical assessment commander’s statement.  There was no performance-based evidence from the record that either condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient  cause to recommend a change in the FPEB fitness determination for the contended conditions and so no additional disability rating is recommended.  

Contended Cat IV PEB Condition:  Adjustment Disorder.  Adjustment disorder is a condition not constituting a disability, IAW DoDI 1332.38.  Therefore, the Board has no basis for recommending the condition as unfitting.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 10%, coded 5239 IAW VASRD §4.71a.  In the matter of the shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB rating of 10% coded 5099-5003 IAW VASRD   §4.71a.  In the matter of the contended male stress incontinence and rare reported priapism conditions, the Board unanimously recommends no change from the FPEB determinations as not unfitting.  In the matter of the contended adjustment disorder condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5239	10%	
Right Shoulder Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140315, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(c) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 27 Jul 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 Jun 16 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (e) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.
 
     d. XXXXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

	XXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)