RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04006
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Light Wheel Vehicle Mechanic, medically separated for “chronic low back pain” with a disability rating of 10%.  His “chronic left shoulder pain” was found to have existed prior to service (EPTS) without permanent aggravation by service and was not rated.  

CI CONTENTION:  The applicant states that his back condition has continued to deteriorate since leaving the military and contends that his diagnosis of major depressive order should be changed to PTSD.  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 - 20041213	VARD - 20051108	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, Status Post L4/L5 Diskectomy	5243	10%	Degenerative Disk Disease Lumbosacral Spine…	5243	20%	20050810	
			Right Lower Extremity Radiculopathy associated with Degenerative Disk Disease Lumbosacral Spine…	8520	10%	20050810	
			Scar, Status Post Lumbar Diskectomy	7805	0%	20050810	
Chronic Left Shoulder Pain	5099-5003	EPTS	Left Shoulder Problem	5201	NSC	20050810	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with discectomy at L4-5 on 17 April 2003 for back pain radiating into his right leg due to herniated disc.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  Magnetic resonance imaging (MRI), dated 24 July 2004, showed no evidence of recurrent disc herniation.  The MEB forwarded “status post L4-5 right diskectomy with persistent low back pain” and “degenerative lumbar disk disease, L4-5 and L5-S1” for PEB adjudication.  

The MEB NARSUM examination on 26 July 2004 (6 months prior to separation) noted complaints of right-sided low back pain that made the CI “unable to do significant bending, stooping, or heavy lifting.”  Physical examination showed normal motor strength, sensation and reflexes.  He had tenderness to palpation in the right sacroiliac area and was positive for provocative testing indicating radicular symptoms of pain.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 10 September 2004, 4 months prior to separation, the CI reported lower back pain that radiated down right leg causing numbness and tingling.  He was unable to put full weight on right leg due to pain and was using a cane for balance and support.  Physical examination showed that the CI held his right leg out at 20 degrees and favored it while walking.  There was tenderness to palpation of the lumbosacral paraspinal muscles and spasm was also present.  He had limited ROM, but the degree of limitation was not noted.  His reflexes were normal.  Straight leg testing (for radicular symptoms) was positive at 45 degrees on the right and 60 degrees on the left.  

At the time of the physical medicine clinic appointment on 13 September 2004, 4 months prior to separation, the CI reported back pain with “paresthesias down the back of the right lower extremity into the bottom of the foot and the dorsal toes.”  He also reported that his pain was much worse with driving.  On examination he was noted to have a very antalgic gait and was favoring his right leg and using a cane.  His reflexes were normal and his motor strength was normal except for his right plantar flexors which couldn’t be accurately tested because the CI could not stand on the right foot unsupported.  The examiner opined that the CI’s motor strength was “at least a 3/5” in the right plantar flexors.  The CI’s sensation was impaired in the plantar and dorsal toes.  Subsequent to this appointment, the CI underwent treatment of the L4-S1 nerve root area with radiofrequency rhizotomy later in September.  At the time of the physical therapy MEB ROM study on 5 October 2004, 4 months prior to separation, the examiner recorded that the CI had painful limitation of motion.

At the time of the physical medicine clinic appointment on 27 October 2004, 3 months prior to separation, the CI reported “lower back pain and paresthesias [down] the back of his right leg and into the foot.”  The examination showed that the CI ambulated with a cane and that his gait was antalgic favoring the right lower extremity.  His reflexes were normal.  His motor strength was also normal except for his plantar flexor which couldn’t be tested on the right because the CI couldn’t stand on his right foot.  The examiner opined that the CI’s motor strength was “3-5 at least” in the right plantar flexor.  Sensation was decreased on the right foot in the L4 and L5 distribution.  There was tenderness to palpation of his lumbosacral spine.  Electrodiagnostic evaluation showed no evidence of a right lower extremity radiculopathy.  

At the VA Compensation and Pension (C&P) examination on 10 August 2005, performed 7 months after separation, the CI reported “shooting pain in the sciatic distribution down the right hip and posterior thigh to his foot...with associated…numbness and tingling.”  The CI also reported that “he had lost 5 days of work in the past 6 months due to his back problem.”  Physical examination showed positive straight leg test at 70 degrees with a positive Lasegue’s sign (possible lumbar root or sciatic nerve irritation).  The CI had painful limited motion.  His gait, motor strength, sensation, and reflexes were normal.  Repetitive motion and flare-ups did not cause fatigue, weakness, lack of endurance or additional limitation of motion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10% coded 5243 (intervertebral disc syndrome), citing marked tenderness to palpation.  The VA rated the back condition 20% coded 5243, based on the VA C&P examination 7 months after separation, citing limitation of forward flexion greater than 30 degrees but not greater than 60 degrees.  The VA also rated his right lower extremity condition 10% coded 8520 (paralysis of the sciatic nerve), citing mild incomplete paralysis of the sciatic nerve.  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 on the physical therapy and VA examinations.  Any contribution from the scar was considered under the back rating.  The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI had intervertebral disc disease, there was no evidence that there were incapacitating episodes having a total duration of at least 4 weeks for any higher rating under the alternate VASRD formula for intervertebral disc syndrome.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a herniated disc with radicular pain treated with surgery, and there were symptoms of radiating pain documented in the treatment records; however, the NARSUM and VA examinations indicated that the CI had normal strength, sensation, and reflexes and the VA examination showed he had a normal gait.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There was no evidence of lumbar nerve root involvement by MRI, electro-diagnostic studies, or neurologic examination.  The Board therefore concluded that 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 5243.  

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the CI’s left shoulder (non-dominant) condition existed prior to service (EPTS) and was not permanently aggravated by service.  The Board’s threshold for countering EPTS findings requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The PEB determined the left shoulder condition existed prior to service based on “dislocation in high school” prior to entering military service and that it was “exacerbated by military duties but not permanently service aggravated.”  The Board found no evidence to indicate the condition had existed prior to service.  The Board next considered whether or not there was evidence of permanent service aggravation.  A presumption of permanent service aggravation may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  

Although the PEB indicates that the CI’s left shoulder was “exacerbated by military duties but not permanently service aggravated,” the Board notes that the PEB provided no justification to support their finding of no permanent service aggravation.  The CI’s entrance physical indicated that his upper extremities were normal when he entered his current period of service.  His treatment records showed that his shoulder became symptomatic while on active duty “after performing vigorous physical training” and exams documented positive tests for impingement and functional limitations including painful motion with a diagnosis was rotator cuff syndrome.  The single post-separation VA examination was adjudged as not sufficient to overcome that evidence.  

The Board adjudged that there was not sufficient evidence to overcome the presumption of service aggravation, and that therefore, the left shoulder condition is compensable.  According to service treatment records and the MEB NARSUM, the CI’s left shoulder became symptomatic in 2002 and there was no surgical indication.  Despite treatment, the left shoulder 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 “rotator cuff syndrome” for PEB adjudication.  

According to the MEB NARSUM evaluation on 8 September 2004 (4 months prior to separation), the CI complained of significant left shoulder pain due to increased lifting and overhead activities.  Shoulder dislocations were denied.  Physical examination showed no evidence of instability.  His ROM was “normal” without pain during ROM testing, but he had positive Hawkins and Neer tests (rotator cuff/tendon impingement signs - consistent with painful motion).  He had significant tenderness along the anterior aspect of his shoulder.  The VA C&P examination 7 months after separation, the CI reported numbness of the left hand when he has his left arm outstretched on the wheel driving.  Physical examination showed full painless ROM with no clicking, crepitus, or symptoms with ROM testing.  Impingement testing was not addressed.  The NARSUM examination was closer to separation and was adjudged to have the highest probative value for rating at separation.  There was no limitation of flexion or abduction that supported a rating under the VASRD diagnostic code for limitation of motion (5201).  There was no history of fracture, non-union, malunion, or deformity of the humerus to support consideration under code 5202.  However, there was evidence of impingement/painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  After due deliberation, considering all of the evidence the Board concluded the left shoulder condition was permanently aggravated by service and recommends a disability rating of 10%, coded 5099-5024, clavicle or scapula, impairment of: without loose movement.  

BOARD FINDINGS:  In the matter of the back condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the left shoulder condition, the Board unanimously concluded that the presumption of service aggravation was not overcome by the PEB, therefore the CI’s left shoulder is compensable and the Board recommends a disability rating of 10%, coded 5099-5024 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 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	5243	20%	
Chronic Left Shoulder Pain	5099-5024	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated, 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 AR20160009453 (PD201404006)

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:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA