RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01222
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040621

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Military Police, medically separated for “chronic low back pain” and “chronic bilateral lower leg and left shoulder pain,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  100% permanent and total disability.  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 - 20040512	VARD - 20050907	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Spondylolisthesis And Degenerative Disc Disease of the Lumbar Spine	5239-5243	20%	STR	
Chronic Bilateral Lower Legs and Left Shoulder Pain	5099-5003	10%	Neuropathy of the Left Lower Extremity	8520	10%	STR	
			Neuropathy of the Right Lower Extremity	8520	10%	STR	
Chronic Left Shoulder Pain 	Not Unfitting	Arthritis of the Left Shoulder	5010-5201	0%	STR	
Hypertension	Not Unfitting	Hypertension	7101	0%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s LBP condition began in January/ February 2002 after a fall while running during physical training.  At a 3 March 2003 orthopedic visit, he had mid-lower lumbosacral spine tenderness with negative straight leg raise testing (to determine nerve root irritation).  X-rays on 3 March 2003 showed degenerative disk disease (DDD) at the L5-S1 level with a grade 1 spondylolisthesis (a vertebra sliding over another).  On 8 March 2003, magnetic resonance imaging (MRI) showed grade 1 anterolisthesis (forward sliding of a vertebra) with a likely pars defect of L5 on S1 and extensive degenerative changes involving the L4-L5 and L5-S1 disk spaces.  There was moderate bilateral neuroforaminal narrowing at L5-S1, but no definite disk herniation or central stenosis. The CI was referred for pain management and treated with a nonsteroidal anti-inflammatory drug (NSAID).  He began physical therapy (PT) on 12 June 2003 where he reported intermittent numbness and tingling in both lower extremities, which was worsened by prolonged driving.  Range of motion (ROM) measurements showed forward flexion to 75 degrees (normal 90).  An L3 profile was issued on 4 December 2003 for chronic low back pain.  
 
At the 12 January 2004 MEB NARSUM examination, 5 months before separation, the CI complained of low back pain.  Physical examination noted he was bent forward with a slow gait, and had tenderness of the left sacroiliac joint and left L3- L5 paraspinous muscles.  There was a positive jump response with light to medium palpation on manual muscle testing.  ROM measurements were based on a 12 June 2003 PT evaluation, and reported as “forward bending was 75 degrees with left lateral bending.  Side bending to the left with left lateral bending was 20 degrees. Side bending to the right was 25 degrees with left lateral bending.”  

An additional 3 February 2004 back examination showed lumbar tenderness and decreased ROM with lateral bending.  Sensory examination was normal and strength was decreased for toe and foot dorsiflexion.  Deep tendon reflexes were 2+ and symmetrical and straight leg raising was positive.  On 18 February 2004, the CI was treated with Neurontin (for nerve pain) and received a lumbar epidural steroid injection on 27 February 2004 which provided pain relief for only 2 days. A 25 February 2004 lumbar X-ray showed grade 1 spondylolisthesis with spondylolysis (combination of DDD and osteophyte formation) at L5 on S1.  An 11 March 2004 electrodiagnostic study documented evidence of mild peripheral neuropathy of the bilateral lower extremities.  

At a 16 March 2004 orthopedic examination, the CI had giveaway weakness of both lower extremities, with an absent left ankle jerk and mild left leg atrophy.  A repeat lumbar spine MRI on 26 March 2004 showed DDD at L4-L5 and L5-S1 with grade 1 spondylolisthesis and facet joint arthropathy (arthritic changes) at L5-S1 with mild neuroforaminal narrowing at that level.  An L3 profile for low back pain and mild bilateral leg peripheral neuropathy was issued on 15 April 2004.  PT ROM measurements on 21 April 2004, 1 month prior to separation, were (in degrees):  flexion to 40, extension to 10 (normal 30), right and left side bending to 15 (normal 30), right rotation to 40 (normal 30), and left rotation to 45.  

There was no VA Compensation and Pension (C&P) evaluation in evidence proximate to separation, but a 16 November 2004 VA primary care assessment, 5 months after separation, the CI reported a 2-year history of back pain and numbness and tingling in his calves when he stood for long periods.  Lumbosacral spine X-rays demonstrated minimal degenerative disc changes at the lower lumbar spine with grade 1 spondylolisthesis and probable spondylolysis at L5-S1.  During a 31 May 2005 primary care visit, 11 months after separation, the CI reported having back pain and that he was unable to work.  The examiner noted he walked with a cane, but because of “time restraints, could not do physical exam due to discussions…”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5237 (lumbar spine strain), citing thoracolumbar range of motion limited by pain, with localized tenderness. The VA rated the LBP condition 20%, coded 5239-5243 (spondylolisthesis or segmental instability-intervertebral disc syndrome), based on the STR, citing flexion to 40 degrees, extension to 10 degrees, right and left side bending to 15 degrees, right rotation to 40 degrees, and left rotation to 45 degrees.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported on the PT examination, 1 month before separation.  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula.  While radiculopathy was not explicitly related to lower back pain in the scope of review, since the CI had bilateral lower extremity pain, it is addressed below.  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 chronic low back pain condition, coded 5299-5237.  

Chronic Bilateral Lower Legs and Left Shoulder Pain. The PEB combined the chronic bilateral lower leg and left shoulder pain conditions as a single unfitting condition coded 5099-5003 and rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  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 also 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 bilateral lower legs and left shoulder conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating, if indicated.  Panel members noted that the PEB not only bundled the chronic left shoulder pain as unfitting, but also adjudicated it as not unfitting.  Members agreed that an unbundling analysis was indicated to determine whether the left shoulder condition was unfitting or not unfitting

Chronic Bilateral Lower Leg Pain.  According to the STR and MEB NARSUM, the CI’s bilateral lower leg condition was first reported on 31 January 2002 and marked by throbbing pain in the back of both calves for 1 month.  A trial of Vioxx (NSAID) was initiated, but at an April 2002 primary care visit, the CI reported his left calf was “cramping a lot.” Physical examination revealed a normal left leg and the provider prescribed Anaprox DS (NSAID).  At a May 2002 primary care follow-up, the CI reported persistent left leg cramps with stinging in the anterior proximal leg when he stood up, but eased after walking.  The examiner recommended continuing medications and restricted the CI from running for 2 weeks.  Bilateral tibia and fibula X-rays on 10 June 2002 were normal.

In February 2003 the CI reported a history of shin splints.  At a 3 February 2004 pain clinic visit, the examiner documented radicular pain into the L5-S1 distribution of the calves, which was treated with Neurontin.   The 2 January 2004 commander’s statement noted the CI’s disability impacted his military specialty duty performance due to an inability to stand and sit for long periods of time and difficulty in carrying/wearing gear.  As previously mentioned, an 11 March 2004 electrodiagnostic study revealed evidence of mild peripheral neuropathy of the bilateral lower extremities; the CI was unable to tolerate electromyogram testing.    

The 12 January 2004 MEB NARSUM examination, 5 months prior to separation, noted CI complaints of leg pain, which began when he fell while running.  It was associated with numbness and tingling in the posterior legs when standing for long periods.  As mentioned above, the CI had a grade 1 anterolisthesis of L5 on S1 with extensive degenerative changes involving the L4-L5 and L5-S1 disk spaces with moderate bilateral neuroforaminal narrowing present at L5-S1.  Physical examination showed a slow gait and hip flexion quadricep strength at 3-/5 bilaterally with pain.  Ankle dorsiflexion strength was 4+/5 with cogwheeling (ratchet-like movement) and pain.  Toe and foot dorsiflexion strength was also decreased.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB bundled the chronic bilateral lower leg and left shoulder conditions and applied a single 10% rating, coded 5099-5003.  The VA separately rated the left and right lower extremity neuropathy conditions at 10% each, coded 8520 (incomplete paralysis of sciatic nerve), based on the STR, citing numbness, tingling, and pain.  

The panel first considered whether the right and left lower leg conditions were separately unfitting for continued military service.  Chronic pain of the bilateral lower legs was profiled and associated with numbness and tingling from standing for long periods, and the commander noted this negatively impacted the CI’s duty performance. Radiographic and electrodiagnostic studies supported some level of radicular nerve irritation or involvement, and the CI had giveaway weakness of both lower extremities with an absent left ankle jerk and mild left leg atrophy; there was also decreased strength with toe and foot dorsiflexion.  Based on the preponderance of evidence, members determined that each lower extremity was separately unfitting since undue speculation would be required to conclude that impairment from either leg would not have unacceptably interfered with the performance of military duties. The panel then considered whether each leg, rated separately, met the criteria for a compensable rating, and agreed that a 10% rating, and no higher, using code 8520 (incomplete paralysis sciatic nerve-mild) was appropriate for each leg.  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 lower leg pain condition, coded 8520, and a disability rating of 10% for the right lower leg pain condition, coded 8520.  

Chronic Left Shoulder Pain.    According to the STR and MEB NARSUM, the CI’s left shoulder pain condition began in January 2002 after falling while running.  The 2 January 2004 commander’s statement indicated the CI’s disability impacted duty performance due to difficulty with carrying and wearing his gear.  The 12 January 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of chronic left shoulder pain.  While the left shoulder was not specifically addressed, the physical examination was noted to be “unremarkable” except for the other conditions discussed above.

During a 19 February 2004 orthopedic visit, the CI reported his left shoulder and arm hurt mostly in the anterolateral biceps region when lying on his left side and reaching across his body.  Physical examination revealed full ROM and a positive Speed’s test (to determine bicep long head tendinitis and assess for superior labral anterior-posterior (SLAP) lesions).  Left shoulder X-rays showed moderate spurring along the inferior margin of the acromion as well as the inferior aspect of the glenohumeral articulation. A 26 February 2004 magnetic resonance arthrogram, ordered for left shoulder pain consistent with a SLAP tear and possible impingement, was negative; and a 5 March 2004 primary care follow-up evaluation noted imaging was grossly normal with moderate degenerative acromioclavicular (AC) joint osteoarthropathy, but no impinging osteophytes.  On 10 March 2004, an orthopedic surgeon felt the CI’s shoulder pain was likely secondary to minor overuse; and a primary care provider, on 12 March 2004, noted he was unable to lift 40 pounds as required by his military specialty.  A U3 profile for chronic left shoulder pain was issued on 15 April 2004 with limitations of carrying and firing a weapon and constructing an individual fighting position.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB bundled the chronic bilateral lower leg and left shoulder conditions and applied a single 10% rating, coded 5099-5003.  The VA rated the left shoulder condition 0%, coded 5010-5201 (arthritis, due to trauma, substantiated by X-ray findings- limitation of motion of arm), based on the STR, citing full ROM and the left shoulder MEB findings as unremarkable.  Panel members, having uncoupled the chronic left shoulder pain condition from the chronic bilateral lower leg pain condition, determined the chronic left shoulder pain was separately unfitting.  Although imaging studies were interpreted as moderate AC joint degenerative osteoarthropathy, orthopedic evaluations indicated the CI’s pain was due to minor overuse showing full ROM, while the NARSUM examiner made no note of remarkable left shoulder findings.  The panel therefore determined a 0% rating, coded 5099-5003, was appropriate since there was no shoulder limitation of motion to support a rating under code 5201.  The MEB NARSUM  examination did not document findings such as swelling, muscle spasm, satisfactory evidence of painful motion or other evidence of functional loss to support a 10% rating IAW VASRD §4.59, §4.40 or §4.45.  There was no malunion, deformity, or recurrent dislocation of the humerus to justify a rating under code 5202, and no nonunion or malunion of the clavicle or scapula to warrant any rating under code 5203.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 0% for the chronic left shoulder pain condition, coded 5099-5003.  

Contended PEB Condition:  Hypertension.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the chronic left lower leg pain condition, the panel unanimously recommends a disability rating of 10%, coded 8520 IAW VASRD §4.124a.  In the matter of the chronic right lower leg pain condition, the panel unanimously recommends a disability rating of 10%, coded 8520 IAW VASRD §4.124a.  In the matter of the chronic left shoulder pain condition, the panel unanimously recommends a disability rating of 0%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended hypertension condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  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	
Chronic Low Back Pain	5299-5237	20%	
Chronic Right Lower Leg Pain	8520	10%	
Chronic Left Lower Leg Pain	8520	10%	
Chronic Left Shoulder Pain	5099-5003	0%	
COMBINED w/ BF	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160705, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170018943, 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 40% 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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

Sincerely,					      
Enclosure