RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01910
BRANCH OF SERVICE:  Army	BOARD DATE:  20140930
SEPARATION DATE:  20070505

SUMMARY OF CASE:  The available evidence of record reflects that this covered individual (CI) was a drilling National Guard SPC/E-4 (74D/Chemical Operation Specialist) medically separated for left shoulder pain, neck pain and low back pain (LBP).  The conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent U3/L3/H2 profile and referred for a Medical Evaluation Board (MEB).  The shoulder, neck and back conditions, characterized as “left shoulder pain secondary to acromioclaviclar joint arthritis, impingement syndrome, and mild bicipital tendinitis,” “cervical degenerative disk disease” and “lumbar degenerative disease,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (high frequency hearing loss and anxiety disorder) for PEB adjudication.  The Informal PEB adjudicated left shoulder pain, neck pain and LBP as unfitting, rated 10%, 0% and 0% respectively, with likely application of the VA Schedule for Rating Disabilities (VASRD) for the neck and back condition and citing the US Army Physical Disability Agency (USAPDA) pain policy for the shoulder condition.  The remaining conditions were determined to be not unfitting.  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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting left shoulder pain, neck pain and LBP conditions are addressed below.  The Board acknowledges the CI’s contention for ratings of his high frequency hearing loss and anxiety disorder conditions, which were determined to be not unfitting by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD, and based on the degree of disability evidenced at separation, will be recommended.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20070222	VA – (Undetermined Whether Pre or Post Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Shoulder Pain…	5099-5003	10%	Left Shoulder Strain with Decreased Range of Motion	5099-5024	10%	20060426	
Chronic Neck Pain…	5237	0%	Degenerative Changes of the Cervical Spine	5010	10%	20060426	
Chronic Low Back Pain…	5299-5237	0%	Degenerative Changes of the Lumbar Spine	5010	10%	20060426	
High Frequency Hearing Loss	Not Unfitting	Tinnitus	6260	10%	20060426	
Axis I: 300.00 Anxiety Disorder	Not Unfitting	Bipolar Disorder (VCAA)	9432	NSC	Declined completing C&P exam	
Other x 0 (Not in Scope)	Other x 5	20060426	
Rating:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20060511. 

ANALYSIS SUMMARY:

Left Shoulder Condition.  The narrative summary (NARSUM) noted this right-hand dominant CI was involved in a motor vehicle accident in December 2004 while deployed to Kuwait and sustained injuries to his left shoulder, back and neck. He was not hospitalized but reported constant pain in the left shoulder.  The CI later reported left arm tingling and numbness.  MEB consultation dated 9 August 2006, noted that in May 2006 the CI underwent a surgical procedure involving the ulnar nerve.  Post-surgery the CI reported his neuropathic symptoms (numbness and tingling) had subsided.  He remained with some weakness in his grip and participated in physical therapy (PT).  The CI continued to report left shoulder pain while engaged in activities such as carrying heavy objects or when he wore his battle gear or rucksack for prolonged periods of time.  MEB physical examination of the left shoulder recorded range-of-motion (ROM) flexion to 145 degrees and abduction to 160 degrees with motion limited by pain.  There was tenderness to palpation over the acromioclavicular (AC) joint.  The physician diagnosed AC joint arthritis, impingement syndrome and mild bicipital tendinitis.  Treatment recommendation included continued use of AC joint injections and daily anti-inflammatory medication.  Magnetic resonance imaging (MRI) of the left shoulder in December 2005 obtained at the VA recorded AC arthrosis.  On 9 August 2006, X-rays of the left shoulder noted mild degenerative changes in the AC joint without calcification.  The NARSUM dated 3 November 2006, recorded the CI had not received medical care for his neck, shoulder or back “for the past year.”  The physical examination of the left shoulder for the MEB dated 30 October 2006, recorded flexion to 145 degrees and abduction to 160.  ROM was limited by pain.  Treatment records were scarce.  The November 2006 profile did not allow him to move with a fighting load or construct the fighting position.  He could not perform upper body weight training, but could lift or carry up to 50 pounds.  The commander’s statement prepared in January 2007, recorded the CI had specific duties limitation of no overhead lifting over 5 pounds and no general lifting over 25 pounds.  The VA Compensation and Pension (C&P) left shoulder examination performed in April 2006, recorded ROM flexion of 150 and abduction of 130 degrees.  The physician diagnosed left shoulder degenerative joint disease with pain and decreased ROM.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10% coded analogously 5099-5003 for slight and frequent pain (pain policy).  The VA rated the condition of left shoulder strain 10% for painful motion coded analogously 5099-5024.  A higher rating of 20% under the 5003 code requires radiographic evidence of involvement of two or more major or minor joint groups with occasional incapacitating exacerbations, not supported by the evidence.  Radiographic findings were consistent with mild arthritis of the left shoulder, and the clinical evidence reflected no other ratable pathology.  The Board noted that the condition was not compensable under ROM codes 5201 or any other applicable VASRD code. There were no other applicable codes to a higher 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 left shoulder condition.

Neck Condition.  The NARSUM noted the CI injured his neck in the Humvee accident December 2004, and was diagnosed with muscle strain.  MRI of the cervical spine dated 1 November 2006 recorded mild degenerative disk and joint changes with a small central protrusion of C5-6.  The CI was treated conservatively with medication; however, his pain continued.  At the NARSUM, examination of the cervical spine showed tenderness to palpation over the lower cervical spine and paraspinous muscles, without spasm.  Cervical flexion recorded an average of 48 (45, 45, 50) degrees limited by pain, and extension recorded average of 15 limited by pain.  The CI reported sitting for longer than 30 minutes worsened his neck pain.  The pain improved with heat, stretching exercise and medication.  Surgery was not recommended.  C&P cervical examination of April 2006 recorded cervical flexion of 55 and extension of 70 without pain.  The diagnosis of cervical strain was recorded.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the condition of chronic neck pain 0% coded 5237, rated for “no mechanical loss of motion.”  The PEB noted normal neurological examination and slight limitation of ROM by pain.  The VA rated the condition 10% coded 5010 for pain.  The Board next considered the ratings under the general spine codes 5235-5243, and concluded the condition was not compensable under any of the codes.  The Board considered the application of §4.59 for painful motion.  The NARSUM recorded cervical spine motion limited by pain.  The PEB noted there was pain with motion.  Board members agreed there was sufficient evidence to support a rating under §4.59 for painful motion.  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 chronic neck pain condition, coded 5237 IAW VARSD §4.59.

Back Condition.  The CI’s profile limited running, sit-ups, push-ups and lower body weight training.  The NARSUM recorded radiographs of the lumbar spine showed narrowing of the L5-S1 disk space, and mild multilevel spondylosis.  ROM recorded thoracolumbar spine flexion of 55 degrees limited by pain, and extension of 15 degrees limited by pain.  Sensory and motor tests were normal.  The C&P examination recorded lumbar flexion of 75 degrees with some tightness of movement but no pain.  The PEB rated the condition 0% analogously coded 5299-5237, rated for “no mechanical loss of motion.”  The PEB noted the CI had LBP during training prior to deployment that was aggravated by the accident.  The VA rated the condition 10% for limited flexion with radiographic evidence of arthritis, coded 5010.  The Board undertook a careful review of the evidence in hand, and noted the C&P examination 6 months prior to the NARSUM recorded a compensable ROM.  The ROM reported at the NARSUM and recorded in October measured 55 degrees and under 5237 code by definition, compensable.  The Board noted a physical therapy exam of ROM dated 1 November 2006 recording thoracolumbar flexion of 55 degrees with pain (likely the same examination as the 30 October reported in the NARSUM).  The Board also noted the diagnosis of mid-thoracic paraspinal sprain recorded on 13 September 2004, 3 months prior to the accident.  ROM at that visit was full.  The Board considered the 20% rating under the 5237 code which requires forward flexion greater than 30 but not greater than 60 degrees or combined ROM not greater than 120 degrees and the 10% rating requires thoracolumbar flexion between 60-85 degrees.  The NARSUM and PT examinations recorded forward flexion of 55 degrees and combined ROM of 180.  Six months prior, the VA recorded 75 degrees of forward flexion.  There were no other lumbar ROMs among the treatment records.  After deliberating, Board members concluded, the lumbar ROM recorded in the NARSUM and PT, were not consistent with the clinical findings of normal motor strength, normal sensory exam, and the finding of mild degenerative changes on X-rays.  Therefore, all members agreed, there was insufficient evidence to support the 20% rating under the ROM codes.  The NARSUM examiner also noted that ROM was limited by pain.  Thereupon, 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 compensable loss of motion IAW VARSD §4.71a, coded 5237.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions of anxiety disorder, not otherwise specified (NOS) and high frequency hearing loss were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Review of the service treatment records noted the CI had only one recorded mental health visit prior to the psychiatric NARSUM.  At the NARSUM the CI reported symptoms of disrupted sleep, bad dreams, anxiety when exposed to situations that reminded him of Iraq.  The CI reportedly indicated he was able to handle his symptoms “pretty well.”  On mental status examination (MSE), the CI described his mood as “pretty good most of the time,” and his affect was full.  He stated he had occasional problems with irritability and certain situations made him anxious.  He had a good sense of humor and stated he planned to attend culinary school after discharge.  He noted he enjoyed multiple activities.  All other aspects of the MSE were normal.  The condition of anxiety disorder, NOS was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that the anxiety condition significantly interfered with satisfactory duty performance.  The Board next considered the hearing loss condition.  Treatment records noted the CI was diagnosed with sensorineural (inner ear) hearing loss with absence of vertigo or dizziness.  Speech discrimination was intact.  His symptoms were fullness in his left ear and tinnitus in both ears.  The CI’s condition carried a permanent H2 profile and he was given a waiver to come on active duty.  There was no performance-based evidence that the condition significantly interfered with satisfactory duty performance.  The hearing loss condition was not implicated in the commander’s statement.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the conditions of anxiety disorder, NOS and high frequency  hearing loss condition.  Therefore, no additional disability ratings were recommended.

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 relations to the chronic neck and chronic LBP conditions.  As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the chronic left shoulder pain was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board.  In the matter of the chronic left shoulder pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.59.  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.59.  In the matter of the contended anxiety disorder, NOS and high frequency hearing loss condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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	
Chronic Left Shoulder Pain	5099-5003	10%	
Chronic Neck Pain	5237	10%	
Chronic Low Back Pain	5299-5237	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140502, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXXX, AR20140017395 (PD201401910)

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 30% 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 30% 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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA