RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02512
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030430

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, UH-60 Helicopter Repairer, medically separated for “chronic low back pain” and “bilateral shoulder instability” rated 10% and 0% respectively, with a combined disability rating of 10%.

CI CONTENTION:  “Attempting to change to retired status.”  The 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 - 20021212	VARD - 20030505	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5295	10%	Degenerative Joint Disease L5-S1	5292	10%	20030310	
			Radiculopathy of the Right Leg	8599-8520	10%		
Bilateral Shoulder Instability	5299-5201	0%	Instability, Right Shoulder	5201-5019	10%		
			Arthritis of the Acromioclavicular Joint, Dominant Left Shoulder	5201-5019	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 2001 without any specific injury or trauma.  The CI reported low back pain (LBP) with radiation to the right buttock region without persistent numbness, weakness or bowel/bladder problems.  Radiographic studies on 26 March 2002 showed L5-S1 mild degenerative changes.  
Serial examinations conducted by physical therapy (PT), family practice and orthopedics either showed full range of motion (ROM), full flexion, or normal ROM with pain.  At the 14 June 2002 physical therapy visit, 11 months before separation, flexion was full with minimal pain and extension was “50% with pain.”  The PT assessment was mechanical LBP due to degenerative joint disease with decreased spinal mobility.

At the 6 September 2002 Physical Medicine and Rehabilitation MEB NARSUM examination, 7 months prior to separation, the CI reported a 3 year history of LBP that was both constant and aggravated by activities.  The CI reported the pain started in the low back and radiated to the extremities and there were some paresthesias (numbness/tingling) into the buttock and thigh.  Physical examination showed tenderness over the lumbar region.  The examiner described back ROM as “with forward flexion he is able to reach his knees (approximately 45-60 degrees) with pain, extension was functional, but with pain.  Lateral flexion and rotation were normal.”  Straight leg raise testing (SLR) was negative for radiculopathy, testing for sacroiliac joint (SIJ) and hip dysfunction was negative and there was no evidence weakness.  Lower extremity sensation and reflexes were normal.  The examiner diagnosed “chronic low back pain medically unacceptable in accordance with Army Regulations 40-501, chapter 3.41.e.”

The 18 September 2002 MEB NARSUM, 6 months before separation, reported the same complaints and physical findings as the PM&R MEB NARSUM summarized above.  

At the 10 March 2003 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported constant LBP aggravated by bending, lifting, prolonged standing, running, jumping or stair climbing.  The pain started in the low back and radiated then to the posterior right knee.  Physical examination showed a normal gait and posture with no abnormal spinal contours.   There was no tenderness of the lumbar spine.  There was no muscle spasm and there were no trigger points palpated.  Testing for SIJ or hip related pain was negative.  The CI was able to move from a lying to a sitting position without difficulty.  Back ROM measurement after repetitive motion showed 70 degrees flexion and combined ROM of 220 degrees (normal 240).  Lower extremity strength, sensation, and reflexes were normal and SLR was negative.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5295 (lumbosacral strain), citing painful motion, flexion to the knees, and X-ray evidence of mild degenerative changes at L5-S1.  The VA also rated the back condition 10% coded 5292 (limitation of motion), based on the VA C&P examination 2 months before separation, citing evidence of painful and limited motion.  The VA additionally rated radiculopathy of the right leg at 10%, analogously coded 8520 (incomplete paralysis, mild).  

Both the PEB and VA rated the low back condition according to the VASRD rating rules for the spine in effect on the date of separation, which were changed to the current VASRD rating rules effective 26 September 2003.  The panel must also make its rating recommendation based on the VASRD rating rules in effect on the date of separation.  All Members agreed that a 10% rating, but no higher, was justified for “characteristic pain on motion” coded as 5295 or for “mild” limitation lumbar motion coded as 5292.  The panel reviewed to see if a higher rating was supported with any applicable code.  There was no evidence of muscle spasm or loss of lateral motion in a standing position and there was no evidence of limited lumbar ROM that could be characterized as “moderate” for higher ratings under 5295 or 5292, respectively.  Although the CI reported radiating pain and abnormal sensations, there was no evidence of intervertebral disc syndrome to warrant consideration of rating under 5293 (intervertebral disc syndrome).  There was also no evidence of vertebral fracture or spinal ankyloses to consider rating under either of those codes (5285, 5289).  There was therefore no higher rating than 10% as adjudicated by the PEB.  
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back pain condition.  

Bilateral Shoulder Instability.  The PEB combined the right and left shoulder conditions as a single unfitting condition coded 5299-5201 and rated 0%.  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.  The panel’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 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 right and left shoulder conditions is presented below, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the STR and the MEB NARSUM, the CI’s bilateral shoulder condition began with a left shoulder acromioclavicular (AC) separation in 1986.  There were one treatment note that addressed the left shoulder.  In September 2000 the CI was evaluated for 3 days of left shoulder pain and the history of the shoulder separation in 1986 was noted.  The CI was given a temporary profile for 2 weeks and treated with home exercises and anti-inflammatory medications.  At the time of the MEB NARSUM, the CI reported a several month history of right shoulder pain without specific injury.  A physical therapy visit dated 12 June 2002 noted that the CI was undergoing a MEB for the back and the CI indicated he planned to see orthopedics “for shoulders.”  The commander’s statement in August 2002 noted the CI had a permanent U3 profile and the CI had been repeatedly evaluated in the last year and given varying profiles of permanent U2 to permanent U3 profiles.  Acromioclavicular joint X-rays 11 June 2002 showed mild degenerative change of the left AC joint and the right was normal.  The permanent U3 profile dated 11 September 2002 U3 listed “left shoulder acromioclavicular joint arthritis” and “right shoulder instability atraumatic.”  There was no surgical indication for either shoulder.  

At the 25 June 2002 Orthopedic MEB NARSUM, 10 months prior to separation, the CI complained of shoulder pain with push-ups and with overhead activities.  Radiographs of the bilateral AC joints showed left AC joint arthritis and right shoulder X-rays were normal.  The CI was noted to be left hand dominant.  

Left Shoulder.  The CI reported chronic left shoulder pain since 1986 that had been treated symptomatically since then.  Left shoulder ROM was flexion and abduction of 180 degrees each (normal 180 for each).  There was a prominent AC joint that was “mildly” tender and there was pain with moving the arm across the front of the chest.  Impingement signs were negative and there was no evidence of joint cartilage injury, instability or biceps tendinitis.  .  

Right shoulder.  The CI also reported that his right shoulder has been bothering him for approximately 4 months and although there was no pain, it felt like it was coming out of place inferiorly.  He was in PT for the right shoulder at the time of the consult.  Right shoulder ROM was flexion and abduction of 180 degrees each.  Impingement signs were negative and there was no evidence of joint cartilage injury or biceps tendinitis.  There was evidence of inferior instability (+1 sulcus sign), which reproduced some of the CI’s symptoms.  

The MEB orthopedic examiner’s assessment was left shoulder AC joint arthritis and right shoulder inferior instability, atraumatic.  
No surgery was recommended for the left shoulder and for the right shoulder instability the CI was to perform PT and home exercises for several months before maximal improvement was anticipated.  

The 18 September 2002 MEB NARSUM evaluation, 7 months prior to separation, performed by family practice, cited the Orthopedic MEB NARSUM summarized above.  

At the 10 March 2003 VA Compensation and Pension (C&P) examination, 2 months before separation, the CI reported intermittent bilateral shoulder pain with overhead reaching and lifting.  

Left shoulder.  The CI reported he stretched and relaxed to relieve the left shoulder pain.  He denied numbness or tingling.  Physical examination noted the CI was ambidextrous – he ate and wrote with his left hand but threw a ball with is right hand.  There was no tenderness to palpation of the shoulder or AC joint.  There was mild crepitus with ROM.  There was full ROM with painful motion.  Tests for impingement, rotator cuff injury, and instability were negative.  Upper extremity strength and reflexes were normal bilaterally.

Right shoulder.  The CI reported right shoulder pain secondary to “overuse” and denied any numbness or tingling.  There was no TTP.  There was mild crepitus with ROM.  Tests for instability were positive, but there was a negative apprehension sign.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral shoulder condition 0%, analogously coded 5201 (arm, limitation of motion), citing abduction to 180 degrees.  The VA rated the right shoulder condition 10%, coded 5201-5019 (arm, limitation of motion-bursitis); and the left shoulder condition, 10%, coded 5201-5010 (arm, limitation of motion-arthritis, due to trauma, substantiated by X-ray findings), citing painful motion, based on the VA C&P examination 2 months before separation.  

The panel first considered if both the left and right shoulder conditions remained unfitting when separated from the PEB’s combined adjudication as established above.  There was a single treatment record in the STR for the left shoulder within 2 years of the date of separation.  The commander noted that the CI did have a permanent profile U3 profile in August 2002, as well as multiple U2 or U3 profiles over the previous year, but gave no indication whether the profile was for the left, right, or both shoulders.  The permanent profile listed both shoulder conditions.  At the time of the MEB Ortho consult, the CI had a history of problems with the right shoulder for 4 months.  The MEB Ortho examiner noted the CI was currently in PT for the right shoulder and full improvement would take months.  The MEB Ortho examiner deferred determination of whether the CI met retention standards for the shoulders and referred to the Physical Medicine and Rehabilitation specialist, who determined the CI fell below retention standards due to the low back condition and did not mention either of the shoulders.  The panel concluded that there was not a preponderance of evidence to overcome the presumption that the left shoulder was unfitting at separation, but that there was a preponderance of evidence to support that the right shoulder would not reasonably have caused the CI to be referred into the DES or to be found unfit at separation when considered alone.  

The panel then considered its rating recommendation for the unfitting left shoulder condition at the time of separation.  The VASRD §4.71a threshold for rating shoulder ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion above this level.  The VASRD §4.71a threshold for rating for shoulder ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion above this level.  However, panel members agreed that a 10% rating was justified for painful motion with imaging evidence of arthritis coded as 5003 (or 5010).  
There was insufficient evidence of functional loss to support a higher 20% rating.  There was no malunion or recurrent dislocation of the humerus and no dislocation or nonunion of the clavicle or scapula to justify a higher rating under the 5202 (humerus, other impairment of) or 5203 (clavicle or scapula, impairment of) codes.  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 unfitting left shoulder condition, coded 5003.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral shoulder instability condition and IAW VASRD §4.71a, the panel recommends a disability rating as follows: an unfitting left shoulder arthritis condition, rated 10%, coded 5003 and a not unfitting right shoulder instability condition.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5299-5295	10%	
Left Shoulder Arthritis 	5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151102, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013275, XXXXXXXXXXXXXXXXXXX.

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure