RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00882
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060520

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Infantryman, medically separated for “neck pain, status post (S/P) C4-6 fusion, without neurologic abnormality” and “chronic pain right shoulder,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  “Review 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:

SERVICE PEB - 20060503	VARD - 20150408	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck Pain, S/P C4-6 Fusion…	5241	10%	Cervical Spine DDD…	5243	10%	20150205	
			Right Upper…Radiculopathy…	8710	20%	20150205	
			Left Upper…Radiculopathy…	8710	20%	20150205	
			Surgical Scar Residuals…	7805	0%	20150205	
Chronic Pain R Shoulder	5099-5003	10%	Right ACJ OA,	5201-5010	10%	20150205	
			Surgical Scar Residuals…	7805	0%	20150205	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Pain Right Shoulder.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI right dominant first injured his right shoulder in 2001 while playing volleyball.  He apparently made a full recovery and there were no further entries in evidence until he reinjured it January 2005 while playing flack vest football.  Conservative management including duty restrictions and physical therapy did not resolve his condition.  An MRI showed degenerative changes of the acromio-clavicular joint (ACJ, the joint between the collar bone and shoulder) as well as a tear of one of the shoulder muscles (supraspinatus).  The CI underwent a right shoulder surgery on 18 April 2005.  He then underwent rehabilitation in physical therapy with slow but progressive improvement in his function and range of motion (ROM).  He reported persistent sensory changes though and had electrodiagnostic testing (EDX) on 19 May 2005 which was negative for a cervical radiculopathy.  The 12 July 2005 orthopedic evaluation noted painful shoulder flexion 180 degrees (normal 180) and abduction 190 degrees (normal 180).  The CI was given a steroid injection.  One week later in physical therapy, the ROM was reduced to flexion 155 and abduction 160; painful motion was not addressed.  An MRI study of the shoulder joint (arthrogram) on 30 August 2005 showed inflammation and some joint space narrowing.  Electrodiagnostic studies on 28 October 2005 showed no evidence of peripheral neuropathy, local neuropathy, plexopathy or radiculopathy involving the symptomatic right arm.  This was also the day of the last clinical visit in evidence for the right shoulder condition.  Due to the persistent pain, the neck was also evaluated (below) and the CI underwent neck surgery (a fusion of C5 and C6 vertebrae) on 6 February 2006.  Following surgery, he had normal post-operative discomfort and used a soft collar for comfort.

During the MEB NARSUM examination on 28 March 2006, approximately 2 months prior to separation and 7 weeks after the neck surgery, noted complaints of daily neck pain.  The physical examination had findings of goniometric ROM limited by pain with flexion to 120 degrees and abduction to 80 degrees.  The CI still used a soft collar for comfort and was doing a home exercise program to increase his ROM.  The MEB forwarded “chronic right shoulder pain” for PEB adjudication.  After the NARSUM was dictated, the CI continued evaluation for the neck condition.  The next day he was noted to have pain in the right upper trapezius muscle, mid arm, and posterior neck.  His shoulder pain was decreasing.  On 3 May 2006, he reported that his symptoms were improving.  On examination, the right trapezius muscle was still tender.  The neck ROM was improving, but remained painful.  In the spine clinic on 9 May 2006, he was noted to have a normal neurological examination and a well healed incision.  No major activity restrictions were needed.  X-rays showed good healing and a stable examination.  The final clinical entry, dated 16 May 2006, prior to separation noted that the CI was allowed to demobilize and that he was released without limitations.

The CI did not seek disability from the VA until 2014 and the initial VA Compensation and Pension (C&P) evaluation was not performed until 5 February 2015, almost 9 years after separation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic pain right shoulder condition 10%, analogously coded 5099-5003 (degenerative arthritis), citing the US Army Physical Disability Agency’s pain policy rated slight/frequent pain.  The VA rated the right shoulder condition 10% effective 21 February 2014, analogously coded 5201-5010 (arm, limitation of motion - arthritis, due to trauma) based on the VA C&P examination approximately 9 years after separation.

The Board agreed the evidence shows shoulder flexion ranging from 150 to 180 and abduction ranging from 120 to 180 following the shoulder surgery.  Based on the available ROMs the Board agreed there was no ROM limitation which would achieve a rating higher than 10%; and, there was no ankylosis, fracture (nonunion/malunion) or subluxation/instability that would support a higher rating under any other joint code.  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 right shoulder condition.

Neck Pain, S/P C4-6 Fusion.  As noted above, the CI was evaluated for a neck condition due to sensory loss.  It was noted on an MRI on 16 April 2005 that a herniated disc was present at C5-6.  EDX studies were normal though.  An X-ray on 10 January 2006 was also normal.  The CI received spinal fusion surgery on 6 February 2006 (3 months before separation).
During the MEB NARSUM examination on 28 March 2006, 2 months before separation and 7 weeks after surgery, the CI was continuing a home exercise program and using a soft collar; still in the acute recovery period.  The ROM was flexion 15 degrees (normal 45) and a combined ROM of 180 degrees (normal 340).  Three days later, the CI was seen for a medication refill (for the neck pain) and was noted to be uncomfortable.  A troop clinic visit on 3 May 2006, less than 1 month before separation, noted complaints of right upper trapezoid (shoulder muscle), right mid arm and posterior neck pain and he was no longer wearing a neck collar.  Physical examination revealed a normal gait and stance.  Neck muscle spasm was present with reduced neck sensation and strength on the right; however, upper extremities strength was normal.  ROM was generalized as abnormal but improving; noted as:  decreased right rotation and left lateral flexion with painful motion.  Forward flexion, extension, left rotation and right lateral flexion were not addressed; therefore, combined ROM could not be determined.

A spine clinic visit on 9 May 2006 revealed a normal neurological examination, but ROMs were not addressed.  The X-ray showed good position of the fusion repair and the CI was released without major activity restrictions and advised to follow up as needed with his primary care physician.  The final clinical note on 16 May 2006, 12 days prior to separation, cleared him for separation (from medical hold) and released him without restrictions.

There was no VA C&P examination performed within 12 months of separation; initial C&P examination performed 25 February 2015, almost 9 years after separation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck pain condition 10%, coded 5242 (spinal fusion), citing the MEB NARSUM examination:  without neurologic abnormality, cervical range of motion limited by pain, with localized tenderness; and presumed application of the Army’s pain policy.  The VA rated the cervical condition 10% effective 2014, coded 5243 (intervertebral disc syndrome), based on the VA C&P examination approximately 9 years after separation.

The Board agreed the MEB NARSUM examination was in close proximity to surgery (7 weeks after surgery and 2 months before separation) with the CI still in acute recovery phase.  However, the Board majority agreed there were no post-MEB NARSUM ROM examination in compliance with VASRD §4.46 (accurate measurement) to render the CI’s spinal disposition other than with the use of speculation.  Additionally, the VA C&P examination was performed almost 9 years after separation.

The Board unanimously agreed the PEB clearly referenced the MEB NARSUM, citing without neurologic abnormality, cervical range of motion limited by pain, with localized tenderness; and presumed application of the Army’s pain policy.  Therefore, majority members determined the MEB NARSUM ROM examination was the only comprehensive and VASRD compliance (§4.46) examination performed after surgery prior to the CI’s separation which supports a 30% rating based on 15 degrees flexion.  To utilize post-MEB NARSUM examinations, which do not quantify but generalize ROM, would require speculation (non-compliant VASRD general rating formula of diseases and injuries of the spine) to arrive at a 0%, 10%, or 20% neck rating at the time of separation.

The Board agreed there was no unfavorable cervical spine ankylosis to support a higher rating.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the neck pain condition, coded 5241.

BOARD FINDINGS:  In the matter of the chronic right shoulder pain condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the neck pain condition, the Board majority recommends a disability rating of 30%, coded 5241 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  

The Board majority 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	
Neck Pain, S/P C4-6 Fusion…	5241	30%	
Chronic Right Shoulder Pain	5201	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150604, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion

The Board Majority held that the ROM values from the MEB NARSUM must be used for rating purposes for two reasons: the first was that there were no other ROM measurements proximate to separation and therefore these must be used regardless of probative value.  The second was that since the PEB used the NARSUM in its rating recommendation, the Board is obligated to do so as well; the Board majority noted that the PEB could have requested additional ROM measurements even while recognizing that the PEB used the pain policy rather than the VASRD.  The minority voter disagrees with both of these arguments.

The Board majority held that the NARSUM values were probative as there were no other ROM values proximate to separation.  As was discussed during the Board, bad data does not become valid simply due to the absence of good data.  The minority voter opined that if your only thermometer was frozen at 40 degrees, one would not report the temperature as 40 on a hot summer’s day.  One would say that it is hot.  It this case, one should not use ROM values for rating purposes if they are known to be incorrect, even if there are no other values to use.  The ROM was clearly improved at the time of separation compared to the values measured at the time of the MEB NARSUM.  At the time of these measurements, the CI was 7 weeks out from surgery, still using a soft collar for pain control, and actively engaged in a home exercise program (HEP) to increase the ROM.  Some impairment at this stage is expected clinically and continued improvement is also expected over the following months.  This was clearly documented in the records.  The 3 May 2006 note recorded that the CI no longer used the soft collar (which had been for pain).  It was noted that the ROM was improving.  Also, it was specifically noted that the rotation to the right and lateral flexion to the left were reduced.  No comment was made on flexion, extension, left rotation, or right lateral flexion (side bending), implying that these were normal or near normal.  Tenderness and painful motion were both recorded and, IAW the VASDR, support the PEB 10% adjudication.  Spasm was not noted.  The CI was then seen one week later by the spine surgeon who noted that the CI had a normal neurological examination; previously, there had been minor sensory and motor abnormalities.  The surgeon wrote “C5-6 ACDF appears to be healed.  No major activity restrictions.”  The CI was released without limitations and advised to follow up with his primary care manager as needed.  No further follow-up with the surgeon was requested.  The minority voter noted that this is a strong indication of a good outcome and that had there been significant limitations in ROM as was noted at the NARSUM, further treatment would have been advised.  None was.  The final note prior to separation was dated 16 May 2006.  It noted that the CI had no limitations and was medically cleared for release.  Again, this is consistent with the trend for improvement.  No entries were found which indicated that there was any regression in function.  Unfortunately, there are no further entries addressing the ROM and function until the VA C&P which was remote from separation.  While this cannot be used directly for the rating at separation, it does serve to show that the CI had a nearly full recovery of motion as was expected at the time of separation.  It therefor anchors the outcome after surgery just as the NARSUM values provide a starting point for the recovery.  It is clear that the ROM at separation was better than the NARSUM values and reasonable to assume that it was no better than the C&P values, but that the level of function at separation was good.

The minority voter observed that the purpose of the PDBR, as outlined in DoDI 6040.44 is to assess the accuracy and fairness of the PEB adjudication of the combined disability rating.  Although the PEB was not mandated to use the VASRD at the time of its adjudication, the Board is.  None the less, the VASRD does not mandate the use of a single set of values.  As noted in VASRD §4.2, interpretation of examination reports, the totality of evidence is to be considered.  It states “It is the responsibility of the rating specialist to interpret reports of examinations in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present.”  The minority voter believes that the Board majority violated VASRD §4.2 when it solely based the rating on data known to be inaccurate simply because other formal measurements were absent.  The minority voter also noted that the provisions of VASRD §4.7, higher of two evaluations, were not followed.  It states “…the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.”  The evidence shows that the ROM values from the NARSUM, used by the Board majority to satisfy the criteria for the 30% rating, did not describe the disability picture at separation.  As noted, the purpose of the Board is to determine if the PEB adjudication was accurate and fair.  In this case, there is no information proximate to separation to indicate otherwise.  Accordingly, the minority voter recommended that the PEB adjudication stand.  In addition, the minority voter observed that the clinical picture, as recorded in the notes in the weeks before separation, qualitatively supports a 10% rating, the rating adjudicated by the VA years later, even though formal ROM measurements were not recorded.

Aside from the fact that the NARSUM ROM values were the only ROM values proximate to separation, the Board majority also assigned a high probative value to these measurements since the PEB cited the NARSUM examination in its discussion.  The minority voter also finds this line of reasoning flawed.  The Board typically has access to information not available to the PEB (VA information for example) and routinely uses information other than the NARSUM values in its adjudication.  The Board majority also noted that the PEB had the opportunity to request ROM values further from the date of surgery than those of the NARSUM.  The minority voter concedes that this would have been ideal, but rejects the contention that these values have increased probative value simply due to the use of the NARSUM by the PEB.  First, the PEB used the pain policy, not the VASRD in its adjudication.  It is not reasonable to expect that the PEB would request data to satisfy a rating method not used by the PEB.  Second, bad data remains bad data regardless of it being used or the methodology employed.

The evidence does not support that the PEB adjudication was either unfair or inaccurate.  As such, it should stand.  The PEB used the pain policy for its adjudication; the Board uses the VASRD in effect to make its recommendations.  The clinical picture most closely meets the criteria for a 10% rating even though there are no probative ROM values proximate to separation for the Board to make a precise recommendation.  This also supports the recommendation that the PEB adjudication stand.

The minority voter respectfully recommends that there be no change in the PEB adjudication.

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 XXXXXXXXXXXXXXXXXXXXX, AR20170000261 (PD201500882)

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