RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03909
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard, E5, M1 Tank Technician, medically separated for “chronic low back pain,” “bilateral shoulder pain,” and “painful knees and hands” rated 10%, 10%, and 0%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI contends for all of his conditions. 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 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 - 20061102	VARD - 20080620  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Arthritis of Lumbar Spine	5242	20%	20070522	
Bilateral Shoulder Pain	5099-5003	10%	Tenosynovitis, Chronic Left Shoulder	5003-5024	10%	20070522	
			Tenosynovitis, Chronic Right Shoulder	5003-5024	10%	20070522	
Painful Knees and Hands	5099-5003	0%	Tenosynovitis, Chronic, Left Knee	5261-5024	10%	20070522	
			Tenosynovitis, Chronic, Left Right	5260-5024	10%	20070522	
			Degenerative Osteoarthritis of the Distal Interphalangeal Joint, Right Index Finger with Bursitis	5299	10%	20070522	
			Degenerative Osteoarthritis of the Distal Interphalangeal Joint, Right Long Finger with Bursitis	5299	10%	20070522	
			Degenerative Osteoarthritis with Bursitis, Bilateral Thumbs	5228	0%	20070522	
			Degenerative Osteoarthritis of the Distal Interphalangeal Joints of the Left Index and Long Fingers	5299	0%	20070522	
			Osteoarthritis of the Distal Interphalangeal Joints of the Ring and Little Fingers of the Right Hand with Bursitis	5230	0%	20070522	
			Degenerative Osteoarthritis of the Distal Interphalangeal Joints of the Ring and Little Fingers of the Left Hand with Bursitis	5230	0%	20070522	
Anxiety Disorder	Not Unfitting	Posttraumatic Stress Disorder	9411	NSC	STR	
Gastroesophageal Reflux Disease (GERD)	Not Unfitting	No VA Placement	
Hypertension	Not Unfitting	Hypertension	7101	0%	20070522	
Hypercholesterolemia	Not Unfitting	No VA Placement	
Tinnitus	Not Unfitting	Tinnitus	6260	0%	20070409	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  The PEB combined the shoulders as a single unfitting condition, and combined the knees and hands into a second single unfitting condition, both coded analogously to 5003, and rated them 10%, and 0% respectively.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the bilateral shoulders, and the painful knee and hand conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 1990 after a motor vehicle accident in which he sustained an L4-5 compression fracture.  Magnetic resonance imaging (MRI)] in January 2004 showed degenerative disc disease, but no contraindication to deployment.  His low back pain (LBP) was aggravated during his deployment and he reported radiating pain to both lower extremities (LE) and that his left leg would fall asleep.  He was treated by a pain specialist and electrodiagnostic studies (EMG/NCV) in September 2005 showed L5-S1 radiculopathy.  He was evaluated by neurosurgery and surgery was not recommended.  A follow-up visit with the rheumatology in January 2006 noted that the CI may be developing a “very mild” inflammatory arthropathy on top of a mechanical back problem.  At a physical therapy evaluation on 3 April 2006, lumbar spine range of motion (ROM) was as noted in the ROM chart below.  Repeat EMG/NCV studies in 17 April 2006 were normal.  The MEB forwarded “lumbar degenerative disk disease” for PEB adjudication.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	PT ~10 Mos. Pre-Sep
(20060403) 	VA C&P ~4 Mos. Post-Sep
(20070522) 	
Flexion (90 Normal)	60 (70, 65, 60)	45	
Combined (240)	170	170	
Comment	Painful Motion	Painful Motion
Muscle spasm
Tenderness	
§4.71a Rating	20%	20%	

The NARSUM, written in August 2006, 5 months prior to separation, indicated the CI continued to have LBP radiating into both LEs.  Physical examination revealed tenderness to palpation (TTP), slight lumbar scoliosis, normal gait, and negative straight-leg raise (SLR).

At the VA Compensation and Pension (C&P) examination in May 2007, performed 4 months after separation, the CI reported constant LBP pain radiating to both LEs, that he could deal with the pain, and that it caused no incapacitation.  He was not receiving any treatment for the condition.  Physical examination showed normal posture and gait, with normal spinal contours and no evidence of radiating pain on movement.  There was TTP and muscle spasm.  Thoracolumbar ROM was as indicated in the chart above and there was no additional loss of ROM with repetition.  Strength, sensation, and reflexes of the LEs were normal and straight leg raise testing to elicit radicular symptoms was negative.  There were no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  Lumbar spine X-rays showed degenerative arthritis and disc herniation within the L5 vertebra. (limbus vertebra)

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under the 5237 code (lumbosacral strain), citing painful motion and tenderness to palpation.  The VA assigned a 20% rating using the 5242 code (degenerative arthritis of the spine) based on the VA C&P examination 4 months after separation, citing forward flexion of 45 degrees and positive X-ray showing degenerative arthritis of the spine.  

The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported at the Service PT and VA, examinations.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  Although the CI was diagnosed with a lumbar radiculopathy in 2005, the repeat EMG/NCV studies in 2006 indicated resolution of the radiculopathy.  The CI reported radiating pain to both lower extremities at the C&P examination, but strength, sensation, and reflexes of the lower extremities were normal.  While the CI reported 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 20% for the back condition, coded 5237.  
 
Bilateral Shoulder Pain.  According to STRs and the MEB NARSUM, the CI’s right shoulder condition began during deployment in 2004 without preceding injury.  Left shoulder pain began following aggravation of right shoulder pain without trauma or injury.  Shoulder X-rays noted bilateral acromioclavicular joint arthritis and were otherwise normal.  Rheumatology and orthopedic evaluations diagnosed bilateral shoulder impingement without surgical indication.  Left shoulder MRI in December 2005 was normal.  An orthopedic evaluation for a second opinion for the MEB regarding surgery and/or fitness for duty in April 2006 noted the CI reported bilateral shoulder pain, left greater than right, with left shoulder popping, without long term improvement despite physical therapy and joint injection.  The physical examination showed TTP over the AC joints.  There were positive impingement signs bilaterally, with shoulder ROM of 180 degrees of forward flexion and 170 degrees of abduction.  There was no evidence of instability.  A magnetic resonance arthrogram performed to rule out a left shoulder labral tear was normal and the orthopedic second opinion noted that he was unsure why the CI was having shoulder pain despite a work-up.  The MEB forwarded “bilateral shoulder impingement syndrome” for PEB adjudication.

The permanent profile dated 25 July 2006 listed “shoulder pain” and duty limitations were recommended, including no lifting more than 20 pounds, “no LBE, rucksack, or body armor, no APFT,” and no overhead activities.  According to the commander’s statement dated 13 April 2006, the CI was performing administrative duties as assigned in a professional manner.  He was noted to be knowledgeable and be able to perform his duties with little or no supervision.  The commander recommended the CI be promoted as soon as possible because he has “the soldiering skills and displays the values one would expect from a Staff Sergeant”, and he was noted to be an asset to the military.

The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Shoulder ROM
(Degrees)	MEB ~10 Mos. Pre-Sep
(20060412) 	VA C&P ~4 Mos. Post-Sep
(20070522) 	
	Left	Right	Left	Right	
Flexion (180 Normal)	180	180	112	132	
Abduction (180)	170	170	103	114	
Comments	Positive Impingement signs; 5/5 strength; moderate pain w/Hawkins (L/R not indicated) 	Pain is the only additional limiter after repetitive use	
§4.71a Rating	10%	10%	10%	10%	

At the MEB NARSUM examination dated 16 August 2006, the CI reported bilateral shoulder pain with overhead activity.  Physical examination showed full ROM of the shoulders without TTP of the AC joints.  There was TTP of the rotator cuff muscles bilaterally with crepitus with abduction.  There were positive impingement signs bilaterally with painful motion above 90 degrees of elevation.  Upper extremity strength and sensation were normal bilaterally.  The MEB examiner referred to ROM evaluations dated 10 January 2006 which were not in record.  

At the VA Compensation and Pension (C&P) examination in May 2007, performed 4 months after separation, the CI reported constant bilateral shoulder pain, left worse than right.  The CI reported stiffness, weakness with the arms overhead, and pain with lowering of the arms.  He denied that either shoulder condition caused incapacitation.  Physical examination showed bilateral tenderness, abnormal movement, guarding and crepitus and shoulder ROM as noted in the chart above.  There was no additional loss of ROM of either shoulder with repetition.  Strength, sensation, and reflexes were normal in both upper extremities.  Bilateral shoulder X-rays were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the right and left shoulder conditions and applied a single 10% rating (coded 5099-5003) and cited degenerative arthritis of two or more major joints without significant loss of joint motion or instability.  The VA assigned a 10% rating to each shoulder, for 20%, using a combined code 5003-5024 code (degenerative arthritis - tenosynovitis) based on the VA C&P examination 4 months after separation, citing painful and limited motion with demonstrated crepitus and ROM above shoulder level for each shoulder.  

The Board first considered if the right and left shoulder pain conditions, having been de-coupled from the combined PEB adjudication, each remained separately unfitting as established above.  The permanent profile listed shoulder pain, without specifying right, left, or bilateral, with limitations as noted above.  The MEB Orthopedic addendum determined that bilateral shoulder pain did not meet retention standards but found no clear pathology of either shoulder despite a full work-up.  The Board majority concluded that the evidence at separation supports that the left shoulder interfered with the CI’s performance of his duties, however, there was insufficient evidence that the right shoulder would have caused the CI to be referred into the DES or be found unfit and accordingly cannot recommend a separate rating for it.  The Board therefore agreed with the PEB’s combined adjudication and considered its rating recommendation for the unfitting bilateral shoulder pain condition at the time of separation

A rating for the bilateral shoulder condition was considered under 5099-5003 as adjudicated by the PEB.  There was imaging evidence of arthritis of two major joints, without occasional incapacitating episodes.  Therefore, a 10% rating is supported coded as 5099-5003 and no higher.  After due deliberation, and considering all of the evidence, the Board recommends a single 10% rating for the bilateral shoulder condition, coded 5099-5003.  

Painful Knees and Hands.  According to STRs and the MEB NARSUM, the CI’s “painful knees and hands” condition began during deployment in 2004 without specific trauma.  Bilateral knee X-rays showed patellofemoral degenerative joint disease.  Bilateral hand X-rays showed no evidence of inflammatory arthritis.  There were scant treatment notes in record that addressed the hands.  The CI reported bilateral swelling of the proximal interphalangeal joints with popping and stiffness in the morning for an hour.  The pain was aggravated by use.  A rheumatology examination in March 2005 noted no swelling or weakness of the hands with trace tenderness of the proximal interphalangeal (PIP) joints and the assessment was there was no evidence of systemic inflammatory disease.  Orthopedic evaluation noted “mild” diffuse pain, without a specific site of TTP and an orthopedic evaluation in April 2005 found no surgical indication.  Bilateral knee MRIs were normal in September 2005.  An orthopedic evaluation for second opinion in April 2006 regarding surgery and/or fitness for duty with regards to the knees (and shoulders) noted the CI reported constant bilateral knee pain underneath the kneecaps, with swelling at times.  He denied locking or instability.  On physical examination of the bilateral knees there was no effusion, patellar apprehension or grinding.  There was no evidence of instability or meniscal pathology.  Knee ROM was 0 degrees extension (normal 0 degrees) and 130 degrees flexion (normal 140 degrees).  The examiner’s interpretation of the bilateral knee X-rays was no significant degenerative changes and he diagnosed bilateral retropatellar pain syndrome.  A rheumatology evaluation on 23 January 2006 noted “very minimal” swelling of the PIP joints and normal ROM of the knees with a normal gait.  The assessment was “may be developing very mild inflammatory arthropathy.”  At the orthopedic evaluation for the MEB in April 2006 the physical examination of both knees was normal.  The MEB forwarded “bilateral hand osteoarthritis” and “bilateral retropatellar knee pain” for PEB adjudication.

The permanent profile dated 25 July 2006 listed “knee pain” and “hand pain”.  Duty limitations were as noted above.  The commander’s statement did not specify any specific conditions or physical limitations as noted in the previous summary, but indicated the CI was successfully performing administrative duties using his hands, such as filing and answering phones.  The MEB NARSUM noted that the CI reported difficulties performing the duties of his MOS as a mechanic due to swelling and pain of the fingers which caused him to drop things and have difficulty with tools of his trade.  

At the MEB NARSUM examination on 16 August 2006, 4 months before separation, the right hand dominant CI reported stiffness, pain, and crepitus of the four fingers bilaterally with swelling of the PIP joints.  The examiner noted the Ci was diagnosed with bilateral patellofemoral syndrome.  Physical examination showed no swelling or deformity of the fingers with normal ROM and normal strength and sensation, without tenderness.  There was full ROM of the knees with joint line tenderness and positive patellar grind.  There was no swelling or effusion and the knees were stable.  Lower extremity strength and sensation were normal, 

At the VA C&P examination on 22 May 2007, 4 months after separation, the CI reported constant bilateral hand pain, aggravated by activity and relieved by rest and ice packs.  He reported that at the time of the pain, “he could deal with it.”  He reported that pain and stiffness caused him to drop things.  He also reported constant knee pain, though he was not being treated for it.  He reported that he could deal with the pain and there was no incapacitation.  Physical examination noted a normal gait and posture.  Physical examination of the hands showed a gap between the proximal transverse crease of the palm and the tip of the right index finger of 2.5 cm; long finger 4 cm, ring finger 2.7 cm, and little finger of 2.2 cm.  On the left the gap was index finger 2 cm, long finger 1.7 cm, ring finger 2.6 cm, and little finger 2.6 cm.  The thumbs were able to oppose all fingers fully.  The goniometric ROM of the right and left fingers at the metacarpophalangeal (MCP) joints, PIP, and distal interphalangeal joint (DIP) joints were all normal.  There was no additional limitation of joint function noted with repetition.  The right hand strength was normal, left hand strength “slightly reduced.”  Physical examination of the knees noted right and left knee ROM of flexion of 128 degrees (normal 140 degrees) and 130 degrees, respectively.  Limitation of extension was noted bilaterally as 22 degrees (normal 0 degrees) for the right knee and 32 degrees for the left.  The ROM was limited by pain.  There was no evidence of instability or meniscal pathology of either knee.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB bundled the bilateral knees and hands assigning a 0% rating under an analogous 5099-5003 code (arthritis, degenerative), with possible application of the USAPDA pain policy, citing pain as the primary manifestation.  The VA rated the right index finger and long finger 10% each for limitation of motion, coded 5229 (index or ling finger limitation of motion) and both thumbs and ring and little fingers 0%, coded 5228 (thumb limitation of motion) and 5230 (ring and little finger limitation of motion).  The VA rated the left index finger and long finger 0%, coded 5229 for limited ROM.  The VA rated the right and left knees each 10%.  The right knee was coded 5260-5024 (limitation of leg flexion-tenosynovitis) and the left knee was coded 5261-5024 (limitation of extension-tenosynovitis).

The Board first considered if the bilateral knee pain condition and the bilateral hand osteoarthritis conditions, having been de-coupled from the combined PEB adjudication, each remained separately unfitting as established above.  The Board could not find evidence in the commander’s statement or elsewhere in the STR that indicated any significant interference of either knee or hand with the performance of duties, nor were any physical findings documented by the MEB or VA examiners which would be associated with significant disability.  Therefore, the Board determined that it could not be reasonably concluded from the evidence that any one of the four bundled conditions- right and left hand and right and left knee - would reasonably have caused the CI to be referred into the DES or be found unfit when considered individually and accordingly cannot recommend separate ratings for the conditions.  The Board agreed with the PEB’s combined adjudication for multiple joints in this case and therefore a rating for the “painful knees and hands” condition was considered under 5099-5003.  

There was evidence of pathology of two or more major joints or groups of minor joints (finger joints), without occasional incapacitating episodes.  Therefore, a 10% rating for the “painful knees and hands” condition is recommended, coded as 5099-5003 and no higher.  After due deliberation, and considering all of the evidence, the Board recommends a single 10% rating for the “painful knees and hands” condition, coded 5099-5003.  

Contended PEB Conditions:  Anxiety disorder (d/o), gastroesophageal reflux d/o (GERD), hypertension, hypercholesterolemia, and tinnitus.  None of these contended conditions was profiled or implicated in the commander’s statement or judged to fail retention standards.   All were reviewed and considered by the Board.  There was no performance-based evidence from the record that any of these contended conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determinations determination for the any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the bilateral shoulder condition, the Board majority recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the painful knees and hands condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended anxiety disorder, gastroesophageal reflux disorder, hypertension, hypercholesterolemia, and tinnitus 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 of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	20%	
Bilateral Shoulder Pain 	5099-5003	10%	
Painful Knees and Hands	5099-5003	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140903, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 (PD201403909)

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