RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX                                                                          	CASE:  PD -2014-03786		
BRANCH OF SERVICE:  Army	Separation Date:  20040630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E5, Military Policeman (MP), medically separated for “chronic back pain” and “chronic pain, left ankle and right shoulder,” rated 10% and 10%, respectively, with a combined disability rating of 20%. 

CI CONTENTION:  “Please consider all conditions.”  The CI’s complete submission is 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 - Dated 20040504	VARD - 20030818	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Degenerative Disease of the Thoracic and Lumbar Spines	5242	20%	20030818	
Chronic Pain Left Ankle and Right Shoulder	5099-5003	10%	Left Achilles Tendonitis Postoperative	7804	10%		
			Right Shoulder Impingement Syndrome	5024	10%		
COMBINED RATING:  20%	COMBINED RATING:  90%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  The CI developed back pain in 1998 secondary to an uneven gait and from wearing an ankle cast.  The back pain worsened with intermittent left lower extremity radicular pain and sleep disruptions.  X-ray studies performed in 1999 showed multilevel disc degeneration and herniation in the lower thoracic and upper lumbar spine.  A spine X-ray done in May 2003 showed diffuse degenerative changes in the lumbar and thoracic and in the sacroiliac joints.  There was no pain resolution despite treatment with non-steroidal anti-inflammatory medications (NSAIDS), acupuncture, steroid injections, and TENS [transcutaneous electrical nerve stimulation] therapy.  The VA Compensation and Pension (C&P) examination, approximately 10 months prior to separation, documented reports of intermittent pain radiating to the left lower extremity and lower back muscle spasms.  The physical examination demonstrated a normal gait, thoracolumbar paraspinous muscle spasm and tenderness, and full active range of motion.  The examiner noted that there were no signs of radiculopathy, but that there was additional limitation of motion secondary to pain.  The Medical Evaluation Board (MEB) narrative summary (NARSUM) examination, approximately 3 months prior to separation, documented reports of chronic back pain and that the condition required the CI to move into a single floor apartment because of difficulty with stairs.  She reported that at times, she had to sleep on the floor, put pillows between her knees, and avoid soft beds, chairs, sofas. The CI used a TENS unit for pain control.  The physical examination demonstrated decreased flexion to 80 degrees (normal 90), extension 20 degrees (normal 30), and normal lateral flexion to30 degrees bilaterally.  The neurologic examination demonstrated increased patella and Achilles reflexes bilaterally, and with toes going downward bilaterally. An electromyogram (EMG) performed in November 2003 demonstrated no evidence of a left L2-S2 motor radiculopathy.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA rated the chronic back pain condition at 10%, coded 5237 (lumbosacral strain) and 5242 (degenerative arthritis of the spine) respectively.  The Board considered whether the evidence supported a higher than 10% rating. Although there was evidence of muscle spasms and paraspinous tenderness to palpation, there was no evidence of an abnormal gait or spinal contour for a higher rating.    The Board then considered whether the evidence supported an addition rating for a peripheral nerve condition.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in VASRD §4.71a.  The sensory and motor components had no functional implications.    The Board determined that the evidence did not support an unfitting radiculopathy determination for additional disability 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 back pain condition without the addition of a neuropathy condition.  

Chronic Pain Left Ankle.  The PEB combined the chronic pain left ankle and right shoulder conditions under a single Service disability rating, coded 5099-5003 (arthritis, degenerative).  IAW DoDI 6040.44, if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each condition subsumed under the single Service disability rating must be reasonably justified as separately unfitting in order to remain eligible for Service rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  Both the left ankle (L3) and right shoulder (U3) were permanently profiled.  The left ankle tendonitis condition was implicated in the Commander’s Statement as preventing physical training and basic law enforcement and field duties.  The MEB examiner identified the left ankle and right shoulder pain as interfering with the CI’s ability to perform her MOS duties.  Board members agreed that the left ankle and right shoulder pain conditions were reasonably justified as separately unfitting.  The Board then considered rating each condition.

Chronic Pain Left Ankle.  The CI developed left ankle pain without a specific traumatic event.  Radiographic evaluations of the left ankle demonstrated a bone spur at the insertion of the Achilles tendon.  The CI underwent a left ankle bone debridement and reconstruction on October 30, 2003.  Despite post-operative aquatic therapy, the CI continued to report left Achilles tendon pain.  The VA C&P examination, approximately 11 months after ankle surgery, documented that the CI had tenderness, pain, and hyperesthesia (increased sensitivity) over the surgical site with normal gait.   At the MEB NARSUM examination, approximately 18 months after ankle surgery, the CI reported of chronic ankle pain, swelling, and stiffness.  She also reported occasional use of a cane for ambulation secondary to ankle pain.  The examiner opined that she was “clearly unable to perform her duties as an MP with her Achilles tendonitis” and documented physical findings of decreased dorsiflexion to 3 degrees and hyperreflexic Achilles tendons.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the left ankle condition as 5099-5003 (arthritis, degenerative) and assigned a combined rating of 10%. The VA coded the condition as 7804 (Scar, painful) and rated at 10%.  The Board noted ankle dorsiflexion limited to 3 degrees (normal 20); however, there was no evidence of muscle atrophy, inability to maneuver stairs, or other ambulation impairments that met criteria for a rating under marked limitation of motion. The Board noted that service treatment records most proximate to separation did not evidence tenderness, pain, or hyperesthesia over the scar for addition rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 10% for the chronic pain left ankle condition.

Chronic Pain Right Shoulder.  The CI was diagnosed with impingement syndrome in 1998 after a repelling accident.  Despite NSAIDS, physical therapy, occupational therapy and steroidal injections, the shoulder condition did not improve.  A right shoulder X-ray showed minimal spurring at the tip of the collarbone (clavicle).  The VA C&P examination documented reports of pain, stiffness, numbness and swelling which occurred intermittently every two weeks; lasting 24 hours.  The CI reported that she was not unable to perform overhead work or lift greater than five pounds.  The examiner documented physical findings of normal shoulder flexion and internal rotation, pain limited extension to 160 degrees, and pain limited internal rotation to 54 degrees. Motor strength and neurologic examinations were normal.  The MEB NARSUM examination reports of chronic right shoulder pain, difficulty with overhead activities, and decreased shoulder strength.  The examiner documented physical findings of flexion to 165 degrees, abduction to 130 degrees, and slightly decreased grip strength.  The examiner opined that the only way the CI could get any type of recovery was to dramatically limit her lifestyle and not use her right upper arm.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic pain right shoulder condition 5099-5003.  VA rated the right shoulder condition at 10%; coded 5024 (tenosynovitis).  Board members agreed that the supported the application of VASRD §4.59 (painful motion) and a 10% rating. The Board considered VASRD code 5201 (arm, limitation of motion of); however criteria for a higher than 10% rating was not met.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 10% for the chronic right shoulder pain condition.  

BOARD FINDINGS:  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic left ankle pain condition, the Board unanimously determined that it was separately unfitting and recommends a disability rating of 10%, coded 5271 IAW VASRD §4.71a.  In the matter of the chronic right shoulder pain condition, the Board unanimously determined that it was separately unfitting and recommends a disability rating of 10%, coded 5099-5003 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 recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation: 

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Back Pain	5237	10%	
Chronic Pain Left Ankle 	5271	10%	
Chronic Pain Right Shoulder	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140625 w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160009347, XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board's recommendation and record of proceedings for your information.

The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.

The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.   Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,

 

Enclosure