RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD-2014-03663
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040827

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army National Guard E6, Unit Supply Specialist, medically separated for “pain neck, right shoulder, right knee and lower back…” and “syncope…,” rated 20% and 0% respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI contends her syncope, insomnia, nasal fracture, neck and bilateral knees continue to worsen and impact her daily activities.  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 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 - 20040618	VARD - 20070608	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Pain Neck, Right Shoulder, Right Knee and Lower Back…	5099-5003	20%	Chronic Neck pain with Degenerative Joint and Disc Changes	5242	0%	20060401	
			Right Shoulder Impingement Syndrome	5201	0%		
			Medial Meniscal Tear, Right Knee	5258	20%		
			Degenerative Joint Disease L2-L5	5242	20%		
Syncope…	8299-8210	0%	Syncope	8199-8108	NSC		
Psychophysiologic Insomnia	Not Unfitting	Insomnia to Include Depression and Anxiety	9434	10%	20060629	
Nasal Fracture	Not Unfitting	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Pain Neck, Right Shoulder, Right Knee and Lower Back.  It should be noted that numerous service treatment records (STR) were not available in evidence before the Board and could not be located after appropriate inquiries.  The PEB combined the neck, right shoulder, right knee and lower back pain conditions under a single 20% disability rating, coded analogously to 5003 with application of the US Army Physical Disability Agency Pain Policy, AR 635-40 B24.f.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows individual ratings for each compensable joint in accordance with §4.7 (higher of two ratings).  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the Board judges that the bundled conditions are reasonably justified as separately unfitting, then separate ratings are recommended; with the stipulation that the result may not be lower than the combined rating from the PEB for the bundled conditions.  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.  To that end, the evidence for the neck, right shoulder, right knee and lower back pain conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Neck Pain.  The Board first considered if the neck pain condition was reasonably justified as separately unfitting as established above.  The neck condition was profiled and alluded to by the commander as impacting duty performance.  The Board concluded that the bundled neck pain condition was reasonably supported by the record as separately unfitting.  The Board then considered its rating recommendation for the separately unfitting neck pain condition at the time of separation.  According to STR and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck pain condition began in 1995 following a motor vehicle accident.  Despite treatment, the cervical spine condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “chronic neck pain with degenerative joint and disc changes as well as myofascial component” for PEB adjudication.  The MEB NARSUM examination on 8 April 2004, 5 months prior to separation, noted complaints of pain radiating to the shoulders twice a month, daily pain 2/10 intensity with 7/10 intensity upon exacerbation.  No numbness or tingling was noted by the CI.  Physical examination showed full forward flexion of 45 degrees with painful range of motion (ROM), no muscle spasm and normal contour and gait. 

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the neck pain with the right shoulder, right knee and lower back pain and applied a single 20% rating under analogous 5003 code (degenerative arthritis), citing painful motion with likely application of AR 635-40, B-24.f (Pain Policy).  The VA assigned a 0% rating using the 5242 code (degenerative arthritis of the spine).  There was no limitation of cervical spine motion to support a minimum rating under the General Rating Formula for Diseases and Injuries of the Spine; however the NARSUM examination noted the presence of painful motion.  A 10% rating was therefore warranted.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the neck pain condition, coded 5299-5242.  

Right Shoulder Pain.  The Board next considered if the right shoulder pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The right shoulder condition was also profiled and alluded to by the commander as impacting duty performance.  The Board concluded that the bundled right shoulder pain condition was reasonably supported by the record as separately unfitting. The Board then considered its rating recommendation for the separately unfitting right shoulder pain condition at the time of separation.  According to STRs and the MEB NARSUM, the right hand dominant CI injured her right shoulder in 2001.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “right shoulder impingement syndrome” for PEB adjudication.  At the MEB NARSUM examination on 8 April 2004, 5 months prior to separation, the CI complained of shoulder pain that caused numbness of her arm and hand one third of the day.  Shoulder dislocations were not reported.  Physical examination showed right shoulder flexion was 175 degrees (normal 180) and abduction was 160 degrees (normal 180) after repetitive motion.  There was tenderness and painful motion.  Shoulder sensation and reflexes were normal.  The examiner noted the feeling of catching and locking, but no evidence of instability noted.  

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the right shoulder pain with the neck, right knee and lower back pain and applied a single 20% rating under analogous 5003 code (degenerative arthritis), citing painful motion with likely application of AR 635-40, B-24.f (Pain Policy).  The VA assigned a 0% rating using the 5201 code (arm, limitation of motion), citing the lack of compensable ROM.   The VASRD §4.71a code 5201 (arm limitation of motion) threshold for a rating for ROM impairment is “at shoulder level” (90 degrees from the side), and the ROM 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).  There was no malunion or recurrent dislocation of the humerus and no dislocation or nonunion of the clavicle or scapula to justify a 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 recommends a disability rating of 10% for the right shoulder condition, coded 5299-5201.  

Right Knee Pain.  The Board next considered if the right knee pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  According to STRs and the MEB NARSUM, the CI’s right knee condition began in 1986 following a low femur fracture.  In 1991 the CI was diagnosed with arthritis in the knee.  Radiographic studies, in February 2002, showed normal ligament structure and no patellar dislocation.  There was no surgical indication. The MEB forwarded “right knee chondromalacia” for PEB adjudication.  At the MEB NARSUM on 8 April 2004, the CI stated she experienced daily pain with varying intensity and the feeling her knee would “buckle” once every three months.  Physical examination revealed no effusion (excess liquid in the knee), grating or ligament laxity.  The CI had full ROM and normal sensation.  At the 1 Apr 2006 VA Compensation and Pension (C&P) evaluation, performed 20 months after separation, the CI reported her knee” gave out,” occasionally catches, locks and swells.  The CI stated she was on a wait list for orthopedic surgery.  Physical examination showed flexion of 130 (normal 140) and extension of 0 (normal 0) with no instability or inward/outward bowing of the knee.  Additionally, the examiner noted a radiographic imaging exam, from 15 Jun 2005, that showed several tears of the CI’s meniscus.

Based on the above evidence, there was a questionable basis for arguing that it was separately unfitting.  The well-established principle for fitness determinations is that they are performance-based.  The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of right knee (pain, arthritis, patellofemoral syndrome, etc.) with the performance of duties at the time of separation, nor were any physical findings documented by the MEB or VA examiners which would logically be associated with significant disability.  It should also be noted that there is insufficient evidence in support of a 10% rating for the right knee condition, even if it were conceded as unfitting.  After due deliberation, members agreed that the evidence did not support a conclusion that the functional impairment from right knee (pain, arthritis, patellofemoral syndrome, etc.) was integral to the CI’s inability to perform her MOS and, accordingly, cannot recommend a separate rating for it.

Lower Back Pain.  The Board next considered if the low back pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The Board concluded that the bundled low back pain condition was reasonably supported by the record as separately unfitting. The low back pain condition was also profiled and alluded to by the commander as impacting duty performance.  The Board then considered its rating recommendation for the separately unfitting low back pain condition at the time of separation.  According to STRs and the MEB NARSUM, the CI’s low back pain condition began in 1993.  The CI denied any specific injury or trauma.  The MEB NARSUM examination on 8 April 2004, 5 months prior to separation, noted complaints of pain that radiated to both hips and occasionally to the left knee.  The pain was worse with prolonged standing, sitting or walking.  The CI reported use of a cane for ambulation and a wheelchair during painful exacerbations with a requirement for prolonged walking.  She denied bladder or bowel dysfunction.  Physical examination showed an antalgic gait, paraspinal lumbar tenderness to palpation, and left hip trigger points.  Physical therapy performed a ROM examination on 29 March 2004 using both an inclinometer and goniometer which demonstrated forward flexion of 30 degrees (normal 90) and the combined rating was 135 degrees (normal 240) with evidence of painful motion.  The CI reported pain with examination maneuvers not expected to elicit pain based on the known pathology.  Two hospitalizations (June 2003, May 2003) noted normal to mildly tender back examinations.  A history of irritable bowel with intermittent diarrhea was also noted.  A NARSUM addendum dated May 2004 noted reports of urinary and bowel incontinence.  The examiner opined that there was a mild degree of urine and stool incontinence secondary to delayed recognition of the need to void resulting from pain medication use.

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the lower back pain with the neck, right shoulder and right knee pain and applied a single 20% rating under analogous 5003 code (degenerative arthritis) citing painful motion with likely application of AR 635-40, B-24.f (Pain Policy).  The Board noted that the limitation of thoracolumbar flexion (30 degrees) reported in the MEB NARSUM met criteria for a 40% rating; however, the available treatment records demonstrated waxing and waning lower back pain and limitation of ROM.  The Board noted greater limitation of motion during periods of pain exacerbation and normal to mild limitation of motion with decreased back pain.  The records consistently evidenced subjective reports of lower back pain and objective evidence of an antalgic gait and thoracolumbar tenderness to palpation.  Board members agreed that the preponderance of the evidence supports a 20% rating for guarding severe enough to result in an abnormal gait.  There was no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back pain condition, coded 5299-5237.  

Syncope.  According to STRs and the MEB NARSUM, the CI’s syncope condition began in 1999, with no definite diagnosis identified.  She complained of losing consciousness for 2-3 seconds after standing up too quickly.  It was noted that episodes occurred more frequently when the CI was sleep deprived.  On 15 May 2004, the CI was admitted overnight following complaints of increased syncopal episodes over a 2 month period.  The admitting examiner noted a 5 year history of syncope of unknown etiology after extensive cardiovascular and neurologic evaluations.  The episodes were noted as clustered “with syncope free intervals that can last months.”  At the time of the admission the CI reported two syncopal episodes in less than 24 hours and a headache.   Cardiovascular and neurologic examinations were normal.  The CI had one witnessed syncopal episode during the hospitalization with normal blood pressure, heart rate, and electrocardiogram.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 8210 code (paralysis of the tenth (pneumogastric, vagus) cranial nerve), citing the episodes appeared to be a combination of orthostatic hypotension and medication use.  The Board noted that the frequency of the syncopal episodes was described as in clusters separated by periods of remission.  Board members agreed that the evidence did not support a 10% rating analogous to moderate incomplete paralysis of the vagal nerve.  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 syncope condition.  

Contended PEB Conditions: Nasal Fracture and Psychophysiological Insomnia.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that any of the conditions 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 PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the neck pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the right shoulder pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5201 IAW VASRD §4.71a.  In the matter of the right knee pain condition, the Board unanimously recommends it as not unfitting.  In the matter of the low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the syncope condition, the Board unanimously recommends a disability rating of 0%, coded 8299-8210 IAW VASRD §4.124a.  In the matter of the contended psychophysiological insomnia and nasal fracture conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Neck Pain	5299-5242	10%	
Right Shoulder Pain	5299-5201	10%	
Low Back Pain	5299-5237	20% 	
Syncope	8299-8210	0% 	
	COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140720, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB																		

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20160017200 (PD201403663)

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