RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01673
BRANCH OF SERVICE:  Army	BOARD DATE:  20150424
SEPARATION DATE:  20061219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Light Wheel Vehicle Mechanic) medically separated for neck pain and headaches and chronic low back pain (LBP).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) but an alternate physical fitness test could be performed.  He was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB).  The orthopedic conditions, characterized as “neck pain and headaches secondary to multilevel cervical degenerative disk disease and multilevel lumbar degenerative disk disease,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB forwarded seven additional conditions (charted below) as meeting retention standards.  The Informal PEB adjudicated “neck pain and headaches” and “LBP” as unfitting, rated 10% and 0% respectively, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please Consider All Conditions”

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:

Service IPEB – Dated 20060915	VA - (1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck Pain and Headaches	5299-5237	10%	Neck Strain	5237	10%	20061109	
			Headaches (due to) Neck Pain	8199-8100	NSC	
LBP	5237	0%	DDD Lumbar Spine	5237	10%	20061109	
Left Shoulder ... AC Arthrosis	Not Unfitting	Left Shoulder Strain	5024	10%	20061109	
Right Shoulder … Tendinosis		Right Shoulder Strain	5024	10%	20061109	
Bilateral Carpal Tunnel Syndrome		Carpel Tunnel, Right Wrist	8599-8515	0%	20061109	
		Carpel Tunnel, Left Wrist	8599-8515	0%	20061109	
Oligospermia		Oligospermia	7599-7523	NSC	
Bilateral Knee Pain		Bilateral Knee Pain	5024	NSC	
Polymorphous Light Eruption		Polymorphous Light Eruption	7899-7806	0%	20061109	
ADHD		ADHD	9499-9440	50%	20061109	
Partner Relational Problem		No Entry	
Other in Scope x 0	Other x 4	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20070323 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Neck Pain and Headaches Condition.  The narrative summary (NARSUM) noted onset of neck and bilateral shoulder pain in 2003 without trauma.  He was treated with shoulder injections and physical therapy (PT) without benefit.  He had increased neck pain with onset of headaches in 2006, with Gabapentin (neuro-active medication; Neurontin) that improved the neck pain “quite a bit.”  Imaging documented multilevel cervical degenerative disk disease (DDD) and electrodiagnostic studies found no evidence of radiculopathy from the cervical spine.  Neurosurgery consult indicated that there was no complaint of “numbness or pain or strength problems in the upper extremities.”  The diagnosis was cervicalgia and no surgery was recommended.  There was no complaint of “numbness or pain or strength problems in the upper extremities.”  At the NARSUM exam, performed 6 months prior to separation, the CI reported constant 4/10 throbbing in his neck that worsened with neck motion and improves with stretching, rest and pain medication which included narcotics.  The MEB physical exam noted tenderness to palpation and pain-limited bilateral side bending to 40 degrees (normal 45) and “full flexion extension and rotations.”  Strength and sensation were normal in the upper extremities.

At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI reported constant neck pain up to 10/10.  Pain was relieved by Neurontin and Motrin and worse with neck motions or standing more than 5 minutes or sitting over 30 minutes.  He denied periods of incapacitation.  Headaches were daily, recurring and started at the back of the neck moving into the temples.  He was able to work with medications which were effective and the examiner stated there was no functional impairment from the headaches.  Exam of the neck documented tenderness to the back of the neck and the goniometric range-of-motion (ROM) was with pain at the end of normal motions (flexion 45/combined 340 degrees) and no decreased ROM on repetitions.  Upper extremity reflexes and strength were normal.  The head, eyes, ear, and nose exam was normal.  Cervical spine X-ray was normal, and the diagnosis was neck strain.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the neck and headache conditions under a single disability rating, coded analogously to 5237 (cervical strain).  Although the general rating formula for the spine includes symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected, headaches can potentially be rated separately IAW VASRD guidelines.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with VASRD guidelines, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  The Board first considered if the headaches, having been de-coupled from the combined PEB adjudication, were reasonably unfitting as established above.  The Board could not find evidence in the commander’s statement or elsewhere in the record that documented any significant interference with the performance of duties due to headaches proximate to separation.  Members agreed that, based on the above evidence, there was a questionable basis for arguing that headaches were separately unfitting.  After due deliberation, members agreed that the evidence did not support a conclusion that the functional impairment from the headache condition was integral to the CI’s inability to perform his MOS; and, accordingly cannot recommend a Service rating for it.

The neck condition was limiting duty performance by profile restriction and treatment entries.  There was tenderness of the neck and painful motion warranting a 10% rating.  There was insufficient reasonable doubt for any rating above 10% as there was no evidence of guarding or spasm severe enough to result in an abnormal spinal contour, and ROMs were greater than flexion of 30 degrees and combined ROM greater than 170 degrees.  There was no evidence for any duty limiting peripheral nerve condition for additional 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 neck pain and headaches condition.

Back Pain Condition.  The NARSUM dated 22 June 2006 noted onset of LBP following a fall in April 2004.  He had chronic back pain that was not relieved by conservative therapy including epidural steroid injections (the last dated 6 June 2006).  Magnetic resonance imaging documented multilevel DDD and bony changes that affected the right nerve root at L5.  At the MEB exam, the CI reported LBP of 6/10 that worsened with activities or sitting over 30 minutes.  Pain was relieved by anti-inflammatories and narcotic pain medication.  The MEB physical exam (DD Form 2808, Report of Medical Examination) dated 9 May 2006 documented decreased ROM of the thoracolumbar spine in side bending bilaterally, with no tenderness.  Heel and toe walk was normal and straight leg raise (for radicular signs) was negative.  The NARSUM dated 22 June 2006 indicated “full ROM of the lumbar spine.”  Motor, reflexes and sensory testing was normal.  A PT note dated 15 May 2006, following the MEB exam, also indicated a goniometric ROM with full active ROM of the thoracolumbar spine without specifying degrees or repetition.

At the VA C&P exam performed a month prior to separation, the CI reported LBP up to 10/10 with stiffness and constant weakness.  Pain was noted to radiate down his left leg.  He did not have incapacitation.  Exam documented tenderness with full ROM with pain at the end of ROM to the VASRD normal in each axis of movement, with no decrease on repetition.  Gait was normal.  Motor and neurologic testing of the lower extremities was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The MEB exam documented decreased ROM and the VA exam documented painful motion and tenderness meeting the criteria for a 10% evaluation.  Although the NARSUM alone may not achieve a compensable rating, it was unclear which exam the NARSUM referenced (PT, MEB DD Form 2808, or independent exam the date of the NARSUM), and the NARSUM was within 2 weeks of an epidural steroid injection which may have provided temporary improvement of LBP symptoms.  The VA exam was the most detailed, closest to separation and aligned with the disability picture in the treatment record.  It was therefore adjudged to have the highest probative value for rating at 10% IAW VASRD §4.59 (painful motion) and for tenderness.  As noted above, radiating pain (noted at the VA exam) is considered under the general spine formula rating.  There was no incapacitation and no evidence of weakness or duty limiting radiculopathy for alternate or additional rating under other VASRD disability codes.  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 low back condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left shoulder, right shoulder, mild bilateral carpal tunnel syndrome (CTS-wrists), oligospermia (low sperm count), bilateral retropatellar pain syndrome (RPS-knee pain), polymorphous light eruption and Axis I partner relational problem with attention deficit hyperactivity disorder (ADHD) conditions were not unfitting.  The Board’s threshold for countering fitness determinations is preponderance of the evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

The bilateral CTS (wrists), oligospermia, polymorphous light eruption and Axis I partner relational problem with ADHD conditions were not profiled, mentioned in the commander’s statement, or judged to fail retention standards.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for bilateral CTS (wrists), oligospermia, polymorphous light eruption, or the Axis I partner relational problem with ADHD conditions, so no additional disability ratings are recommended for those conditions.

Bilateral Knee Pain.  The CI had a long history of bilateral knee pain beginning at least by 2002 that was diagnosed as bilateral RPS.  Bone scan documented increased activity in both knees.  The CI had complaints of knee pain with episodic swelling and weakness.  Pain was relieved by anti-inflammatory medication.  There was no history of incapacitation or knee surgery.  Knees were stable on exam, with full ROM.  The bilateral knee condition was profiled, and the commander’s statement noted limitations potentially attributable to the knees (marching), but also attributable to the unfitting back condition.  The knees were not judged to fail retention standards.  The knee pain conditions were long standing without significant duty restrictions (adequate performance) and without apparent significant increase following referral into the MEB.  The bilateral knees (RPS) condition was profiled, but not noted in the commander’s statement, or judged to fail retention standards.  The Board considered evidence of satisfactory performance and the profile limitation potential overlaps between the back and knee conditions.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the bilateral knee (RPS) condition, so no additional disability ratings is recommended for that condition.

Left and Right Shoulders.  The CI was right-handed (right shoulder is “major/dominate”).  The shoulder pain began in 2003 with the onset of neck pain at the same time (see above).  Treatment notes indicated the right shoulder was initially worse than the left shoulder and there was no specific traumatic injury event.  Imaging documented degenerative joint disease of the left and right acromioclavicular (AC) joints and right shoulder tendinosis (supra and infraspinosis).  The CI underwent prolonged PT, had multiple clinical visits leading up to the MEB, and had multiple injections in each shoulder with minimal benefit.

In August 2005, orthopedic treatment note recommended a MEB; however, orthopedic note in September 2005 indicated that the CI “does not desire MEB.  States he is doing work and his command is not pushing for MEB.  He will continue with non op care and f/u if he desires further MGT.”  Orthopedic evaluation in February 2006 indicated profile restrictions had been for over a year without changes in symptoms that the CI was unable to do pushups or work overhead without pain.  The specialist recommended “return to regular duty without profile.  If unable to perform duties, then recommend MEB initiated by PCM. … No additional orthopedic treatments or interventions required. … meets retention standards for shoulders.”  The CI was referred for a MEB by a hand written P3U3L2 profile for bilateral shoulder pain in March or May 2006 (date “MAR” or “MAY” on different copies).  The final typed permanent profile dated 27 July 2006 (after the NARSUM date of 22 June 2006) did not list the shoulder conditions (neck, back, and knees only).  The NARSUM indicated that the CI was taking anti-inflammatory and narcotic medication and that following addition of Gabapentin the neck symptoms had improved, “but the shoulder symptoms have persisted.”  Orthopedic and PT exams of the shoulders through February 2006 noted painful motion and impingement signs (Neers and Hawkins tests), with ROMs never less than 150 degrees of forward flexion or abduction (normal 180).  The MEB DD Form 2808 exam dated 9 May 2006 documented full bilateral ROM of the shoulders with normal strength and no tenderness.  There was no NARSUM exam of the shoulders.  The commander’s statement dated 15 May 2015 specified an injury and treatment of both shoulders (“condition stems from an injury, pain in both shoulders starting in August 2003.  He had physical therapy and shots in both shoulders repeatedly in addition to medication and profiles that prohibit him from performing most basic correctional task”) and did not specifically mention any other medical condition.  Limitations noted were lifting, marching, and inability “to wear any military gear besides mask.”  Prior to separation VA exam documented tender AC joints bilaterally with full shoulder ROMs with pain at the end of ROM.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the left and the right shoulder conditions favored their recommendation as additionally unfitting conditions for disability rating.  The right shoulder condition is appropriately coded 5024 and the left shoulder coded 5099-5003 and each meets the VASRD §4.71a criteria for a 10% rating with consideration of VASRD §4.59 (painful motion).

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the neck pain and headaches condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended bilateral CTS, oligospermia, bilateral RPS, polymorphous light eruption and partner-relational problem with ADHD conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended right shoulder supraspinatus and infraspinatus tendinosis and the left shoulder AC joint arthrosis conditions, the Board unanimously recommends that each shoulder be found unfitting and recommends a disability rating of 10%, for the right shoulder coded 5024, and a rating of 10%, for the left shoulder coded 5099-5024, both 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	
Neck Pain and Headaches	5299-5237	10%	
Low Back Pain	5237	10%	
Right Shoulder Supraspinatus and Infraspinatus Tendinosis	5024	10%	
Left Shoulder Acromioclavicular Joint Arthrosis	5099-5024	10%	
COMBINED (w/ BLF)	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140417, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150013459 (PD201401673)

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:

Encl						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA