RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01396
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20030504

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Network Systems Operator, medically separated for “chronic pain, left shoulder after three surgical procedures, and neck, status post C6-7 cervical fusion” with a disability rating of 10%.  

CI CONTENTION:  “Review all conditions.”  The complete submission is at Exhibit A.

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20030305	VARD - 20030820	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Left Shoulder After Three Surgical Procedures and Neck, Status Post C6-7 Cervical Fusion	5293
5099-5003	10%
	Residuals, Failed Left Shoulder Reconstruction	5303	20%	20030411	
			Residuals, Post Cervical Fusion 	5299-5290	10%	20030411	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Pain, Left Shoulder after Three Surgical Procedures and Neck, Status Post C6-7 Cervical Fusion. The PEB combined the chronic left shoulder and neck pain conditions under a single disability rating, coded analogously to 5003 and rated 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  This 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.  The panel 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 panel’s initial charge in this case was therefore directed at determining if combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel 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 panel 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 chronic shoulder pain and chronic neck pain conditions is presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

Left Shoulder.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s left non-dominant shoulder condition began when he was a reservist, but he re-injured his shoulder on active duty in 1998.  Following two surgeries on the left shoulder, the first in 1999 for instability and impingement and the second in 2001 for recurrent shoulder instability (with subscapularis insufficiency - a rotator cuff muscle), the CI continued to report shoulder pain, which was much improved but still limited his ability to perform his military duties.  

Occupational therapy measured shoulder range of motion (ROM) on 11 October 2002, 7 months prior to separation.  Flexion was 165 degrees (normal 180) and abduction of 145 degrees (normal 180), with painful motion noted.  There was no evidence of instability.  Grip strength was greater on the left than the right and there was equivalent arm muscle mass on the left and right measured at three positions.

During the 11 October 2002 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the physical examination noted moderate decreased left shoulder ROM and referred to the occupational therapy ROM noted above.  

The 11 October 2002 MEB NARSUM examination, 7 months prior to separation, noted complaints of left shoulder pain, aggravated by overhead use, without shoulder dislocation or subluxation, but the CI reported an occasional “sifting sensation” in his shoulder.  Physical examination cited an orthopedic physical examination that showed a well-healed surgical incision of the left shoulder.  There was no tenderness or muscle atrophy.  There was normal strength and sensation.  Left shoulder ROM showed flexion 170 degrees.  Weakness of the subscapularis muscle function was demonstrated.  The MEB NARSUM determined the CI fell below retention standards due to the left shoulder and neck pain.  

The 17 October 2002 permanent profile listed left shoulder and neck pain.  The commander’s statement did not specify the CI’s medical conditions, but indicated the CI was unable to perform his military duties due to his “medical condition.”  

At the 11 April 2003 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported left shoulder pain and instability symptoms.  Physical examination noted the CI was right-hand dominant.  There was scarring with loss of subcutaneous tissue of the anterior shoulder and loss of the left pectoralis muscle (anterior chest) was noted secondary to surgical transfer for the left shoulder reconstruction due to subscapularis deficiency.  Left biceps muscle and grip strength were noted to be “decreased.”  Shoulder ROM was flexion and abduction of 140 degrees, with painful motion noted.  

The panel directed its attention to its rating recommendation based on the above evidence.  The PEB rated the chronic left shoulder and neck pain condition 10%, coded 5293-5099-5003 (analogous to intervertebral disc syndrome-degenerative arthritis) and cited application of the USAPDA pain policy.  The VA rated the shoulder condition 20%, coded 5303 (Group III- shoulder muscles), moderate muscle disability. 

The panel first considered if the left shoulder condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The permanent profile listed left shoulder and neck pain.  The commander’s statement did not specify the CI’s duty-limiting conditions.  The MEB NARSUM determined the CI fell below retention standards for both the left shoulder and neck conditions.  The panel concluded that there was not a preponderance of evidence of the service records that overcame the panel’s presumption that the left shoulder condition was reasonably considered separately unfitting.  

The panel then considered its rating recommendation for the left shoulder condition.  Although there was insufficient limitation of motion to support a rating under the 5201 code, panel members agreed that a 10% rating was justified for painful, limited motion coded analogously to 5003.  There was no malunion or recurrent dislocation of the humerus to justify a rating under the 5202 code (humerus, other impairment of); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under the 5203 code (clavicle or scapula, impairment of).  The panel also reviewed to see if coding the shoulder condition as 5303 IAW VASRD §4.73 (muscle injuries) supported a higher rating.  There was no evidence of muscle weakness prior to the separation except for the noted deficiency of the subscapularis muscle, which was then reconstructed using the anterior pectoralis muscle.  The occupational therapy evaluation was the only examination which actually measured strength and there was no weakness of grip strength and arm muscle mass was equal bilaterally measured at three positions.  The panel concluded there was insufficient evidence to characterize the residual weakness due to the injury and surgery as “moderate” for a higher evaluation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the panel recommends a disability rating of 10% for the chronic left shoulder pain condition, coded 5099-5003.  

Chronic Neck Pain.  According to the STR and MEB NARSUM, the CI’s neck pain began in 1998.  Cervical spine magnetic resonance imaging showed diffuse degenerative disc disease and a large disc protrusion at C6-7 and the CI underwent surgery for C6-C7 fusion on 25 March 2002.  Subsequent imaging showed a healing surgical fusion and a patent spinal canal.  The CI reported improvement after the surgery, but had continued neck pain which impaired his ability to perform his military duties.  

Cervical spine ROMs measured by occupational therapy on 11 October 2002 were flexion of 25 degrees and extension of 30 degrees.  Measurements for all planes of the cervical spine were not provided.  Grip strength was greater on the left than the right and there was equivalent muscle mass on the left and right arms measured at three positions.  

During the 11 October 2002 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the examiner noted “marked decreased cervical spine ROM” with no actual ROM measurement provided.  The examiner stated “see OT notes.”   

The 11 October 2002 MEB NARSUM examination, 7 months prior to separation, noted complaints of constant neck pain.  The CI was on no medications.  Physical examination cited an orthopedic physical examination that showed neck ROM with flexion of 80 degrees, extension of 60 degrees, bilateral flexion of 45 degrees and bilateral rotation of 45 degrees.  There was normal strength sensation and reflexes of the upper extremities.  

The CI appealed the MEB NARSUM dictation and noted that he was to finish treatment for neck pain with physical medicine on 22 January 2003 and that his surgeon would dictate an addendum for the neck condition.  The 29 January 2003 NARSUM spine addendum, 3 months before separation, noted that prior to the surgical fusion the CI was experiencing neck pain that radiated to the left shoulder and triceps area.  Following the surgery the left arm pain resolved but the neck pain continued with frequent headaches.  The examiner noted that the CI continued to receive trigger point injections and medication for chronic pain (antidepressant and anti-inflammatory medications).  The assessment was that the CI failed to meet retention criteria for the neck condition.  No ROM measurements were provided. 

At the 11 April 2003 VA C&P evaluation, 1 month before separation, the CI reported constant neck pain that radiated to the left triceps.  He reported flares up to three times per month that lasted for a few days.  The examiner noted the CI had been tried on many medications “in the past.”  Physical examination noted the CI was right-hand dominant.  There was a well healed scar on the right neck.  There was decreased left biceps and grip strength as noted above.  Reflexes of the bilateral upper extremities were normal.  There was muscle spasm and tenderness along the cervical spine.  Cervical spine ROM was flexion of 50 degrees, extension of 40 degrees, right and left lateral flexion of 5 degrees on each side, right rotation of 40 degrees and left rotation of 5 degree with painful motion noted. 

The panel directed its attention to its rating recommendation based on the above evidence.  The PEB rated chronic left shoulder and neck pain 10%, coded 5293-5099-5003, as noted above.  The VA rated the neck condition 10%, coded 5299-5290.  The panel first considered if the neck condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The permanent profile listed neck pain.  The commander’s statement did not specify the CI’s duty limiting conditions.  The MEB NARSUM determined the CI fell below retention standards for both the chronic left shoulder and neck conditions.  The MEB spine addendum also indicated that the CI fell below retention standards due to the neck condition.  The panel concluded that there was not a preponderance of evidence of the service records that overcame the panel’s presumption that the neck condition was reasonably considered separately unfitting.  

The panel then considered its rating recommendation for the neck condition.  The panel must make its rating recommendations based on the VASRD rating rules in effect on the date of separation.  The panel must correlate the above clinical data with the 2003 rating schedule where applicable diagnostic codes included: 5290 (limitation of cervical spine motion); 5293 (intervertebral disc syndrome; based on incapacitating episodes); and analogous to 5295 (lumbosacral strain).  

The MEB NARSUM and the OT ROM examinations were performed on the same day but noted significantly different degrees of cervical flexion.  The MEB NARSUM noted full cervical flexion, whereas the OT evaluation noted moderately reduced cervical flexion, with no additional information provided to explain such a discrepancy.  The OT evaluation was also incomplete with values for cervical flexion and extension and not cervical rotation or lateral flexion.  The panel majority therefore placed greater weight on the ROM evidence at the MEB NARSUM and post-separation VA examinations, which supports a 10% rating coded 5290 for “slight” limitation of cervical motion.  Following the fusion surgery there was no evidence of incapacitating episodes due to intervertebral disc disease for higher rating and there was no evidence of permanent neurologic manifestations for additional rating.  There was therefore no higher rating than 10% available under any applicable VASRD code at separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the neck condition, coded 5290.

BOARD FINDINGS:  In the matter of the “chronic pain, left shoulder after three surgeries, and neck, status post C6-7 cervical fusion” condition, the panel majority recommends a disability rating as follows: an unfitting chronic left shoulder condition, rated 10%, coded 5099-5003 and an unfitting chronic neck condition, rated 10%, coded 5290 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  The single voter for dissent submitted the appended minority opinion.

The panel recommends the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Left Shoulder Pain	5099-5003	10%	
Chronic Neck Pain	5290	10%	
RATING 	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150610, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

Minority Opinion:

The minority voter agrees with the panel recommendation that that the neck condition was reasonably considered separately unfitting but disagrees with the majority rating recommendation.  The minority voter would like to stress that the VASRD rules on the date of separation, 4 May 2003, were not the same as the current VASRD rules for rating the spine.  The VASRD rules in effect on the CI’s date of separation rated cervical limitation of motion (5290) based on characterization as “slight”, “moderate,” or “severe” in contrast to current rules which provide quantitative ROM parameters for cervical flexion and/or combined cervical ROM.  

The MEB NARSUM examination noted normal cervical flexion and mild limitation of all other cervical motion, but the MEB examination documented on Form 2808, OT, and VA examinations all noted greater limitation of cervical ROM consistent with a 20% rating.  The MEB NARSUM examination and the OT ROM evaluations were performed on the same day and noted significantly different cervical ROM.  The minority voter placed less probative value on the MEB NARSUM examination than the occupational therapy cervical ROM because the MEB NARSUM examiner documented 60 degrees of flexion (normal 45) and 80 degrees of extension (normal 45) which are unusual values, particularly in a patient who has had a cervical fusion, causing the minority voter to question their accuracy.  Based on description of all cervical motion as “slight,” “moderate,” or “severe” not only do the MEB 2808 and OT examinations provide support for characterization as moderate limitation of motion, but so does the VA examination, which notes normal cervical flexion, but greatly reduced combined ROM of 140 degrees out of a normal 340, that is 40% of normal.  Therefore, the minority voter concluded that the evidence supports a 20% rating for “moderate” limitation of cervical spine motion and no higher.

Following the fusion surgery there was no evidence of incapacitating episodes due to intervertebral disc disease for higher rating and there was no evidence of permanent neurologic manifestations for additional rating.  There was therefore no higher rating than 20% available under any applicable VASRD code at separation.  

The minority voter recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Left Shoulder Pain	5099-5003	10%	
Chronic Neck Pain	5290	20%	
RATING 	30%	

AR20170009050, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and by majority vote recommended that your disability rating should be modified to 20% but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I reject the Board’s recommendation and I accept the Board’s minority opinion to recharacterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation, minority opinion and record of proceedings for your information.

	The recharacterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO) XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the counsel you listed on your application.

Sincerely,
							
Enclosure