RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04056
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070121

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Automated Logistics Specialist) medically separated for low back and left shoulder pain.  The low back and left shoulder condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB).  The “lower back pain” and “left shoulder discomfort,” conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (hemorrhoids) for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain” and “left shoulder discomfort,” as unfitting, rated 10% and 0% respectively, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and citing application of the US Army Physical Disability Agency (USAPDA) pain policy for the shoulder condition.  The remaining condition was determined to be not unfitting.   The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requests consideration of all conditions in his application.  His complete submission is at Exhibit A.

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 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/Naval 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 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:  

IPEB - Dated 20061113	VA* - (~12 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disc Disease Lumbar Spine with Intermittent L5 Radiculopathy	5243	20%	20080107	
Left Shoulder Discomfort	5099-5003	0%	Chronic Left Shoulder Strain Status Post Surgical Repair	5201	20%		
Hemorrhoids	Not Unfitting 	No VA Placement	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 0	
COMBINED RATING:  10%	COMBINED RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20080128 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Low Back Pain.  The narrative summary (NARSUM) noted the CI developed significant low back pain (LBP) and left lower extremity (LLE) numbness after several hard parachute landings during airborne training.   Initial X-rays were negative and the CI was treated conservatively without improvement.  Evaluation by neurosurgery, including magnetic resonance imaging (MRI) and a myelogram showed a small central disc protrusion at L5-S1 that contacted the nerve roots bilaterally, without spinal canal or neuroforaminal stenosis.  Epidural steroid injection temporarily improved the back pain and surgical options were discussed but not recommended.  The CI went overseas and repeat evaluations by orthopedics and neurosurgery resulted in no new findings or recommendations and a MEB was recommended.  The final neurosurgical evaluation in record dated 30 June 2006, 7 months before separation, noted a limping gait, painful lumbar range-of-motion (ROM) with normal muscle tone, negative straight leg raise (SLR) testing, and normal LE strength and reflexes.  The DD 2808 Form, Report of Medical History, noted decreased thoracolumbar (TL) ROM and decreased sensation to light touch of the left thigh and calf.  

At the MEB exam 18 September 2006, 4 months before separation, the CI reported constant LBP, with numbness of the LLE, and occasionally the right.  The MEB physical exam referenced the neurosurgical evaluation noted above.  Thoracolumbar ROM measurements, which were performed separately for the MEB on 10 August 2006, were flexion of 40, 40, and 45 degrees and combined ROM of 175, 175, and 180 degrees, with painful ROM noted.

At the VA Compensation and Pension (C&P) exam 8 December 2006, 1 month before separation, the CI reported LBP.  The exam noted normal gait and posture.  There was no tenderness to palpation (TTP) of the spine or abnormal spinal contour.  Discomfort with exam movements was noted and TL flexion was described as “…lacked one foot of touching the toes” due to pain.  Strength, sensation, and reflexes of the LEs were normal.  At the VA Compensation and Pension (C&P) general exam 7 January 2008, 12 months after separation, the CI reported LBP with intermittent numbness and tingling.  The CI reported no incapacitating episodes in the last 12 months.  The exam noted an antalgic gait, without use of a cane or a crutch.  There was no TL TTP or muscle spasm noted, but the examiner indicated there was guarding severe enough to result in an abnormal gait.  Thoracolumbar ROM was flexion of 70 degrees and combined ROM of 180 degrees, with painful motion, and no additional loss of ROM with repetition.  Strength, sensation, and reflexes of the LEs were normal and there was positive SLR testing bilaterally.   

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5237 (lumbosacral strain).  The VA rated the low back condition 20%, coded 5243 (intervertebral disc syndrome).  The Board agreed the evidence in record supports a 20% rating for the low back condition at the time of separation according to VASRD General Rating Formula for the spine in effect on the date of separation based on TL flexion of greater than 30 degrees and not greater than 60 degrees and also based on the antalgic gait noted at exams before and after separation (at the neurosurgical exam cited by the MEB, and again at the VA C&P exam 12 months after separation).  The Board noted that the pre-separation C&P exam was the closest exam to the date of separation, however, it appeared to be the least detailed back exam of the MEB and two C&P exams.  The ROM at the pre-separation C&P was reported descriptively as “…lacked one foot of touching the toes”, which the Board generally interprets as TL flexion of 60 degrees or greater, however, it is imprecise and there was no indication that ROM testing was repeated to evaluate for additional loss of ROM.  The post-separation C&P exam was 12 months after separation and members therefore judged that the MEB exam was the most probative exam for the Board’s rating recommendation of the CI’s disability at the time of separation (supports a 20% rating).  There was no evidence in record of thoracolumbar flexion of 30 degrees or less to support the next higher rating of 40%.  The Board also reviewed to see if a higher rating was achieved by coding with 5243 (intervertebral disc syndrome) and rating based on incapacitating episodes during the past 12 months, as defined by the VASRD with treatment and bed rest prescribed by a physician.  However, there were no incapacitating episodes, as defined, documented in the in the available record.  The Board thus determined the evidence supports a 20% rating of the low back condition and no higher, and chose to utilize VASRD code 5243.  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 low back condition.  

The Board also considered if there was evidence in the record to support recommending peripheral nerve impairment due to the back condition as separately unfitting and eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Proximate to separation the CI had reported intermittent LE (primarily left) numbness and tingling, but strength, sensation, and reflexes of the LEs were normal throughout the record and there was no evidence of other neurologic impairment.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and since no evidence of a motor or fixed sensory deficit associated with functional impairment exists in this case, the Board could not support a recommendation for additional rating based on peripheral nerve impairment.

Left Shoulder Discomfort.  The narrative summary (NARSUM) noted the CI dislocated his left non-dominant shoulder during a parachute jump in March 2004, and it spontaneously relocated.  Notes in the service treatment record indicated that the CI experienced many subsequent recurrent dislocations and a left shoulder MRI on 17 March 2005 noted a partial rotator cuff tendon tear.  The CI underwent arthroscopic surgery on 19 August 2005 for repair and stabilization of the shoulder.  At orthopedic follow-up visits following the surgery, the CI reported one incident of a feeling of instability, but instability was not noted on any exam.  The DD 2808 Form, Report of Medical Examination, 10 August 2006, noted decreased ROM of the left shoulder.  

At the MEB exam, 4 months before separation, the CI reported pain and decreased ROM of the left shoulder with frequent “sensation of near dislocation”, especially with overhead work.  The MEB physical exam noted left shoulder ROM of flexion 165 degrees and abduction of 140 degrees, repeated three times without change, with painful motion noted.  

The VA Compensation and Pension (C&P) exam 8 December 2006, 1 month before separation, noted the left shoulder condition.  The CI reported that since the shoulder surgery it “has been okay, although it always feels like it’s `going to come out,’ but it never does and there is no pain.”  The exam noted normal strength, sensation, and reflexes of the extremities.  On exam there was no TTP, there was slight decreased ROM with internal rotation, and “up reaching” at the shoulder, with good strength.  At the VA Compensation and Pension (C&P) General exam 7 January 2008, 12 months after separation, the CI reported dislocation or subluxation of the shoulder one to two times per year and his main concern was “fear of repeat dislocation.”  The exam noted left shoulder ROM flexion of 70 degrees and abduction of 65 degrees, with painful motion and guarding of shoulder movements.  There was normal strength, sensation, and reflexes of the bilateral upper extremities.  Shoulder X-rays were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the shoulder condition 0%, coded 5099-5003 (analogous to degenerative arthritis) and cited the USAPDA pain policy.  The VA rated the shoulder condition 20%, coded 5201 (limited arm motion).  The Board noted that the findings from the MEB exam and the initial C&P exams (both ROM and history of no recurrent subluxation or dislocation of the shoulder since surgery) supported a 10% rating for the shoulder at separation, coded as either 5299-5201 IAW §4.59 (painful motion) for painful motion, or coded as 5299-5203 (analogous to impairment of the clavicle or scapula), an analogous code for rotator cuff injury, but not coded as 5202 (impairment of the humerus).  Following the surgery, although the CI persistently reported a feeling of instability, serial orthopedic evaluations noted no instability of the shoulder and at the initial C&P exam the CI reported that there had not been any recurrent subluxations or dislocations since his surgery.  Members deliberated the findings from the second C&P exam and agreed that there was evidence of post-separation worsening which was not reflective of the disability at the time of separation.  The Board also considered if there was evidence in the record of functional loss equivalent to limitation of arm motion at shoulder level at the time of separation which was sufficient to warrant a 20% rating.  However, the commander’s statement referenced limitations due to the CI’s back condition only and the permanent profile listed limitations of lifting with the left arm, but did not prohibit or limit overhead activities.  The Board thus determined that the evidence supports a 10% rating for the shoulder condition at the time of separation and no higher, coded 5299-5201.  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 shoulder condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hemorrhoid condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The hemorrhoid condition 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 hemorrhoid condition significantly interfered with satisfactory duty performance.  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 determination for the hemorrhoid condition and so no additional disability ratings is 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the shoulder condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the low 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 recommends a disability rating of 10%, coded 5299-5201 IAW VASRD §4.71a.  In the matter of the contended hemorrhoid 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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain 	5243	20%	
Left Shoulder Discomfort 	5299-5201	10%	
RATING	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

SAMR-RB

JUL 19 2016

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AH RC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20160004450 (PD201404056)

1. Under the authority of Title 1 O, 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