RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04127
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E6, Recruiter, medically separated “multiple joint pain,” with a disability rating of 10%.

CI CONTENTION:  The CI requests consideration of all 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 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:  

IPEB – Dated 20051129	VARD - 20060928	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Multiple Joint Pain	5299-5025	10%	Chronic Shoulder…Right	5201	30%	20060717	
			Chronic Thoracolumbar Strain	5237	20%	20060717	
			Chronic Right Ankle Sprain	5271	10%	20060717	
			Degenerative Joint Disease…Both Hips	5010-5251	NSC	20060717	
			Chronic Cervical Strain	5237	NSC	20060717	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Multiple Joint Pain.  (Right Shoulder, Right Ankle, Lower Back, Neck, and Hip):  The PEB combined the right shoulder, right ankle, lower back , neck,  and hip pain conditions under a single disability rating, coded analogously to 5025 (Fibromyalgia).  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’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 right shoulder, right ankle, lower back, neck, and hip 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 multiple joint pain condition began in 2003.  CT evaluation of the pelvis performed in March 2003 for left hip pain demonstrated bony infarction at top of the iliac bone of the hip.  Magnetic Resonance Imaging (MRI) of the right shoulder performed 27 March 2003 (for recurrent right shoulder pain with muscle spasm and acromioclavicular (AC) joint tenderness) demonstrated inflammation of the supraspinatus tendon and a small cyst.  The radiologist opined that the inflammation may be due to degenerative changes of the AC joint and a spur impressing upon the tendon junction.  X-rays of the neck performed in May 2004 demonstrated degenerative disk disease at the C5-6 level.  A whole body bone scan in May 2004 demonstrated degenerative changes in the right foot, right patella, and bilateral acromioclavicular joints (outer end of the clavicles).  The rheumatologist on 1 July 2004 recommended cessation of job related physical activity secondary to osteoarthritis of multiple joints.  The CI was treated with physical therapy, steroid injections, and pain medication without resolution of his multi-joint pain condition.  The MEB forward multiple joint pain for PEB adjudication.  

At the MEB NARSUM examination on 3 October 2005, 5 months prior to separation, the CI reported persistent multi-joint pain.  He used Celebrex and Percocet for pain control.  Physical examination showed “good full range of motion to shoulders, elbows, wrists, hands, as well as hips, knees, ankles, toes.”  Upper and lower extremity muscle strength and gait were normal.  The examiner noted that radiographic evaluations of the back, shoulders, and hands were normal.  An urgent care note dated 17 October 2005 documented acute onset back pain playing softball with his children which resulted in a hospital admission for pain management.  The admission physical examination noted significant tenderness to palpation of the lower back bilaterally.  MRI evaluation of the lumbar spine performed in October 2005 demonstrated degenerative disk changes with a bulging disk at the L5-S1 level.  

The MEB examination in November 2005, 4 months prior to separation showed decreased right shoulder ROM with internal rotation and abduction; full ROM of the right ankle; tenderness to palpation of the left paraspinous muscles; and lumbar flexion to 15 degrees ( normal 90).  The physical therapist on 15 November 2005 documented normal neck ROM’s, thoracolumbar ROM of flexion at 50 degrees (normal 90), shoulder ROM flexion of 80 degrees (normal 180) and ankle range of motion of ROM 0 degrees dorsiflexion (20 normal) measured via inclinometer and standard goniometer. 

At the VA Compensation and Pension (C&P) examination in July 2006, performed 4 months after separation, the CI reported  right shoulder, bilateral hips, weakness, stiffness, giving way with lifting, lack of endurance, locking, popping and constant fatigability.  He also reported persistent neck and lower back pain.  The neck and back pain were worse with physical activity and relieved by rest and medication.  He reported one incapacitating lower back pain episode per month which lasted 2 days.  Physical examination showed a normal gait.  The right shoulder demonstrated limitation of flexion to 70 degrees (normal 180) and abduction to 100 degrees (normal 180).  There was an additional 5 degrees of limitation after repetitive motion. Right ankle examination demonstrated no signs of edema, effusion, weakness, tenderness, redness, heat, abnormal movement or guarding of movement. The right ankle ROM was normal (dorsiflexion 20 degrees; plantar flexion 45 degrees).  There was guarding against motion in both hips. The thoracolumbar spine demonstrated painful movement, muscle spasms, decreased flexion, and lateral flexion bilaterally.  The cervical spine demonstrated no evidence of radiating pain, muscle spasm, or tenderness.  There was decreased cervical flexion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a single rating 10% rating for multiple joint pain under an analogous 5025 code (Fibromyalgia), citing full range of motion in all joints, normal radiograph except for the back, and use of medication for symptom control.  The VA separately rated the following conditions based on the VA C&P examination 4 months after separation: shoulder at 30%, coded 5201(arm limitation of motion) citing decreased flexion to 45 degrees with pain; thoracolumbar spine at 20%, coded 5237 (lumbosacral strain) citing decreased flexion to 45 degrees; and right ankle at 10%, coded 5271(Ankle, limited motion of:) citing “evidence of pain in the presence of pathology.”  The cervical spine and hip conditions were not service-connected.  

The Board noted that the PEB rated the right shoulder, lower back, left hip, right ankle, and neck pain conditions as a single condition.  IAW DoDI 6040.44 if the PEB combined adjudication is not VARSD compliant with the combined rating criteria, each condition subsumed under the single disability rating must be reasonably justified as separately unfitting in order to remain eligible for 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.  

Right Shoulder Pain:  The Board noted that the right shoulder pain with persistent and supported by physical findings and radiographic pathology.  Board members agreed that the evidence supports that the right shoulder condition was independently unfitting.  Board members noted that the NARSUM examination documented full shoulder ROM, however; physical therapy (80 degrees), MEB (decreased abduction), and VA examinations ( 70 degrees with pain starting at 45 degrees) documented decreased ROM measurements which were consistent with shoulder level range of motion.  Board members agreed that the evidence supports a rating of 20% for arm limitation of at shoulder level under 5201.  The next higher 30% rating for the dominant arm requires motion limited to “midway between side and shoulder level.  However, examinations did not reflect this degree of limitation.  There was no malunion with marked deformity or frequent episodes of recurrent dislocation of the humerus to justify a higher rating under the 5202 code (humerus, other impairment of), and no higher ratings available under the 5203 code (clavicle or scapula, impairment of).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board determined that the right shoulder was unfitting and recommends a disability rating of 20%, coded 5201.  

Thoracolumbar Pain:  The Board noted that the lower back pain was persistent and supported by physical findings and radiographic pathology.  Board members agreed that the evidence supports that the lower back pain condition was independently unfitting.  The Board noted one hospitalization for intractable lower back pain 5 months prior to separation.  The MEB examination 4 months prior to separation noted lumbar flexion to 15 degrees.  The PT examination, performed 1 week after the MEB examination noted inclinometer thoracolumbar flexion to 50 degrees.  The VA examination performed 4 months after separation noted thoracolumbar flexion to 45 degrees.  Degenerative disc disease has a waxing and waning back pain pattern that is evident within the CI’s history.  Board members agreed that the MEB ROM was in proximity to an exacerbation which required hospitalization.  The PT and VA ROMs were indicative of the CI’s day to day functional impairment resulting from his degenerative disc disease.  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).  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.  The evidence shows the CI had intervertebral disc syndrome (disc disease causing back pain and sciatica) and experienced one incapacitating episode due to acute signs and symptoms that required treatment and hospitalization.  According to review of the STR, the total duration of incapacitation over the 12 months prior to separation did not support a higher than 20% rating.  There was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board determined that the lower back pain was unfitting and recommends a disability rating of 20%, coded 5237.  

Left Hip:  The Board noted that intermittent reports of left hip pain.  At the time of the NARSUM examination there full hip range of motion and no evidence of tenderness to palpation.  Board members agreed that the evidence supports that the left hip pain condition was not independently unfitting. After due deliberation, members agreed that the evidence does not support that the left hip pain condition was integral to the CI’s inability to perform his MOS and, accordingly cannot recommend a separate rating for it.  

Right Ankle:  Board members noted that there was no disturbance of gait secondary to right ankle pain and no limitation of motion noted on the MEB, NARSUM or VA examinations.  Board members agreed that the evidence supports that the right ankle pain condition was not independently unfitting. After due deliberation, members agreed that the preponderance of evidence does not support that the right ankle pain condition was integral to the CI’s inability to perform his MOS and, accordingly cannot recommend a separate rating for it.  

Neck Pain:  Board members noted that there was no limitation of motion noted at the physical therapy and VA examinations.  X-ray evaluation demonstrated minimal degenerative disc disease.  There was no evidence of cervical pain on movement, tenderness to palpation, or muscle spasm at the VA examination.  Board members agreed that the evidence supports that the neck pain condition was not independently unfitting.  After due deliberation, members agreed that the preponderance of evidence does not support that the neck pain condition was integral to the CI’s inability to perform his MOS and, accordingly cannot recommend a separate rating for it.  

BOARD FINDINGS:  In the matter of the right shoulder pain condition, the Board unanimously determined that it was unfitting and recommends a disability rating of 20% coded 5201 IAW VASRD §4.71a.  In the matter of the thoracolumbar pain condition, the Board unanimously determined that it was unfitting and recommends a disability rating of 20% coded 5237 IAW VASRD §4.71a.  In the matter of the right ankle pain, left hip pain, and neck pain conditions, the Board unanimously recommends these conditions as not unfitting.  

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	
Right Shoulder Pain 	5201	20%	
Lower Back Pain	5237	20%	
COMBINED	40%	

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																		

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 AR20160018249 (PD201404127)

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