RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00066
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20020113

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Early Warning System Operator, medically separated for “neck and left shoulder pain” with a combined disability rating of 10%.  

CI CONTENTION:  The CI’s conditions continue to worsen and negatively affect daily activities.  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 - 20010924	VARD - 20020722	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Neck and Left Shoulder Pain	5099-5003	10%	Discectomy and Anterior Fusion C4-C6 with Muscle Headaches	5290	20%	20011206	
			Residuals, Injury Left Shoulder	5299-5203	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Neck and Left Shoulder Pain.  The PEB combined the neck and left shoulder conditions as a single unfitting condition analogously to 5003 (Arthritis, degenerative (hypertrophic or osteoarthritis)) 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 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 neck pain and left shoulder pain conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Cervical Spine Injury.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s neck condition began in 1998 after sustaining a “whiplash” type injury in a tactical vehicle accident.  The CI had continued neck and right upper extremity pain and paresthesias (abnormal sensations) with electrodiagnostic studies showing abnormalities in the C5 and C6 nerve roots.  On 11 January 2001 the CI underwent C4-6 cervical fusion decompression, and anterior plating and cage corpectomy (removal of the vertebral body as well as the disc spaces at either end) for C5-6 left upper extremity radiculopathy.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  

The MEB NARSUM examination on 16 May 2001, 7 months prior to separation (4 months after cervical fusion), noted complaints of constant 6/10 pain in the neck and shoulder.  Physical examination of the neck showed a well-healed surgical anterior scar with associated confocal paraspinal muscle discomfort posteriorly.  The CI was noted to ambulate with “obvious discomfort in the cervical region and stiffness with his gait pattern.”  Range of motion (ROM) was recorded as “chin to within 1 1/2 inches of his chest” and “approximately 45 degrees of lateral bending as well as 45 degrees of rotation both left and right with associated pain.”  Radiological studies of the neck on 13 June 2001 revealed normal alignment with maintained vertebral body heights and disc spaces.  The examiner noted the CI had stabilized postoperatively and was ambulating without difficulty, but was unable to do standard physical training.  X-rays showed cervical fusion site and hardware in good condition without instability.  

At the 6 December 2001 VA Compensation and Pension (C&P) evaluation, 1 month before separation (11 months after cervical fusion), the CI reported pain in his neck and left shoulder.  Physical examination showed a well-healed anterolateral neck scar.  ROM testing was recorded as 30 degrees flexion, 30 degrees extension, 25 degrees right and left lateral flexion, and 20 degrees right and left rotation.  There was muscle spasm with ROM.  The physician’s impression stated “this does give him a moderate amount of physical impairment.”  

The panel directed attention to its fitness and rating recommendation based on the above evidence.  As noted above, the PEB rated the cervical condition 10% (combined with the left shoulder condition), coded 5003 (arthritis, degenerative), citing the USAPDA pain policy.  The VA rated the cervical condition 20% using a now superseded 5290 code (limitation of cervical spine motion), based on the VA examination 1 month before separation, citing “moderate” limitation of motion of the cervical spine.  The cervical condition was separately considered to fail retention standards, was separately implicated by the NARSUM and the commander’s statement, and separately profiled.  Panel members agreed the evidence reasonably justified that the functional limitations of the cervical condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  

In accordance with DoDI 6040.44, the panel is required to recommend a rating IAW the VASRD in effect at the time of separation.  The panel must correlate the above clinical data with the 2002 rating schedule (prior to the 22 September 2002 VASRD revision), which differ significantly from the current §4.71a general rating formula for the spine.  The applicable coding options for this case are excerpted below.  

5285 Vertebra, fracture of, residuals:
With cord involvement, bedridden, or requiring long leg braces ....................................100
Consider special monthly compensation; with lesser involvements rate for limited motion, nerve paralysis.
Without cord involvement; abnormal mobility requiring neck brace (jury mast)............... 60
In other cases rate in accordance with definite limited motion or muscle spasm, adding 10 percent for demonstrable deformity of vertebral body.
Note: Both under ankylosis and limited motion, ratings should not be assigned for more than one segment by reason of involvement of only the first or last vertebrae of an adjacent segment.

5290 Spine, limitation of motion of, cervical:
Severe........................................................ 30
Moderate................................................... 20
Slight.......................................................... 10

5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief.............. 60
Severe; recurring attacks, with intermittent relief............................... 40
Moderate; recurring attacks................................................................. 20
Mild....................................................................................................... 10
Postoperative, cured............................................................................... 0

In assigning probative value to the two disparate examinations, the panel noted that the NARSUM was within 4 months of surgery and 7 months prior to separation.  However, the pre-separation C&P examination was more detailed, more distant from surgery (allowing for post-operative changes including scaring), and closer to separation.  Therefore the panel placed greater probative value on the VA examination.  The panel agreed that a 20% rating, but no higher, was justified for moderate limitation of motion reported on the VA examination.  There was no documentation of intervertebral disc syndrome with symptoms compatible with neuropathy with characteristic pain and demonstrable muscle spasm, absent reflexes, or other neurological findings appropriate to the diseased cervical discs; or severe recurring attacks with intermittent relief; which would provide for any higher rating under code 5293.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the cervical condition, coded 5290.  

Left Shoulder.  According to the STR and the MEB NARSUM, the CI’s left (non-dominant) shoulder condition began in 1999, approximately 1 year following the neck injury (above) without any apparent trauma.  Multiple orthopedic treatment notes indicated positive O’Brien’s testing (for labral tear) and “obvious popping” and pain with left shoulder movement.  There was no surgical indication, and conservative treatment including injections did not result in improvement sufficient to allow unrestricted duty.  

The MEB NARSUM examination on 16 May 2001, 7 months prior to separation, noted complaints of significant left shoulder pain.  Physical examination showed left shoulder full ROM with non-focal generalized pain and 5/5 muscle strength.  SLAP (superior labral anterior posterior tear) test was negative, and no significant pain with cross arm test was noted.  The orthopedic surgeon’s diagnosis was chronic left shoulder pain with possible SLAP (a tear in the joint lip, or labrum) injury by a previous Sports Medicine and MRI scan indication.”  

At the 6 December 2001 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported continued left shoulder pain, and having had left shoulder debridement surgery (by the NARSUM orthopedic surgeon - there was no source left shoulder operative report in evidence).  Physical examination showed “full” ROM, with some “tenderness” on overhead extension, and 5/5 (normal) motor and left hand grip strength.  There was a well healed scar documented above the left acromioclavicular joint.  

The panel directed attention to its fitness and rating recommendation based on the above evidence.  As noted above, the PEB rated the left shoulder 10% (combined with the neck condition), coded 5003 (arthritis, degenerative), citing the USAPDA pain policy.  The VA rated the left shoulder 10% coded 5203 (clavicle or scapula, impairment of), based on the C&P examination 1 month before separation, citing painful motion.  

The left shoulder condition was separately considered to fail retention standards, separately implicated by the NARSUM and the commander’s statement, and was separately profiled.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled left shoulder condition was reasonably considered separately unfitting.  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 for 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.  Although there was no limitation of motion to support a rating under the 5201 code, panel members agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion) based on objective evidence of painful motion in the STR and on the pre-separation VA examination.  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).  

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 left shoulder condition, coded 5299-5203.  

BOARD FINDINGS:  In the matter of the neck and left shoulder pain condition, the panel unanimously recommends that the neck and left shoulder conditions each be separately adjudicated as follows:  an unfitting neck condition coded 5290 and rated 20%, and an unfitting left shoulder condition, coded 5299-5203 and rated 10%, both IAW VASRD §4.71a.There are no other conditions within the panel’s scope of review for consideration.  

The panel 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	5290	20%	
Left Shoulder Pain	5299-5203	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160129, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013218, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize 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 and record of proceedings for your information.

	The re-characterization 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 Department of Veterans Affairs.

Sincerely,					      
Enclosure