RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01232
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20050211

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army National Guard E4, Signal Support Systems Specialist, medically separated for “chronic low back pain…” and “chronic pain, left [non-dominant] shoulder…,” rated at 10% each, with a combined disability rating of 20%.

CI CONTENTION:  The CI made no specific contention.  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 (VA), 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 - 20041220	VARD - 20050726	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5242	10%	Degenerative Disc Disease at L5/S1	5243	20%	20050418	
Chronic Left Shoulder Pain …	5099-5003	10%	AC Separation of the Left Shoulder	5243	20%	20050418	
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 back condition began in July 2003 while moving boxes during a deployment and did not improve with medication and physical therapy.  Magnetic resonance imaging (MRI) from 16 November 2003 showed degenerative disc disease (DDD) with herniation of L5-S1 but without nerve root impingement.  Evaluation by neurosurgery concluded with a diagnosis of DDD at L5-S1 and recommendation for non-surgical treatment.  An epidural injection provided no relief.  The CI was subsequently medically evacuated from the deployed location.  An 18 December 2003 orthopedics evaluation noted a normal motor examination.  Two of five signs of non-organic pain were present.  The CI was seen in primary care 4 days later and reported LBP which radiated into the left leg.  On examination, the gait and neurological examinations were normal.  Flexion was moderately limited by pain, but extension was normal.  In physical therapy the next day, flexion was about 60% of normal and limited by pain; extension and lateral bending were normal.  Three of five signs of non-organic pain were present.  Sensory loss was inconsistent with either radicular or peripheral nerve involvement.  Symptom exaggeration was noted.  

On follow-up in physical therapy on 30 January 2004, 12 months prior to separation, the CI was noted to have flexion limited to 45 degrees when measured, but he was then able to bend forward to remove his shoes and sit comfortably.  Strength was limited to 4/5, but ratcheting in all planes was present.  Sensation was globally decreased in both lower extremities, but intact to sharp sensation.  Five of five signs of non-organic pain were present.  The CI was unable to demonstrate the home exercise program he was prescribed.  Significant signs of non-organic pain were present as well as fear-avoidance.  The same day in the primary care clinic, the CI was observed sitting down, standing up and walking down the hall, without any signs of discomfort.  Just over a week later in physical therapy, the CI had range of motion (ROM) measurements in degrees which showed flexion limited to 35, extension to 15, lateral bending to 25, and normal rotation.  

The 6 July 2004 MEB NARSUM examination, 7 months prior to separation, noted complaints of pain and numbness in the left leg.  Physical examination showed slight tenderness along the lumbosacral spine and sciatic joint.  There was “some numbness into [the] left leg and foot…more painful on left sciatic area.”   Thoracolumbar ROM measurements showed flexion of 40 degrees and combined ROM of 120 degrees.  Provocative measures to detect radiculopathy were positive bilaterally, left greater than right.  Electrodiagnostic testing on 12 July 2004 was normal.  During the 3 November 2004 MEB examination (recorded on the NARSUM addendum and DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported LBP with numbness and tingling in the left leg and bilateral feet.  The examination also showed tenderness over the lumbosacral spine and into the sciatic joints.  Thoracolumbar ROM measurements showed flexion of 35 degrees and a combined ROM of 160 degrees.  Provocative measures to detect radiculopathy were positive.  Signs of non-organic pain were absent.  

At the 18 April 2005 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported 9/10 back pain that flared to 10/10 every morning and night before bed preventing any significant physical activity.  The CI was unemployed which he attributed to his LBP because his pain worsened by walking greater than 15 minutes, standing for more than 10 minutes or laying down.  Incapacitation was not recorded.  The physical examination showed a normal gait, spinal curvature and neurological examination.  Atrophy, spasm, and incontinence were absent however, there was tenderness.  Thoracolumbar ROM measurements, after repetition, showed flexion of 40 degrees and limited extension and lateral bending.  Rotation measurements were not listed in the examination findings.  The examiner noted there was pain in every plane of motion and fatigability associated with repetitive motion testing.  Radiographic studies showed degenerative changes at L5-S1 with equivocal retrolisthesis (posterior displacement) of L5 on S1 and possible spina bifida occulta (birth defect of the spine) at the S1 level.  Signs of non-organic pain were not recorded.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP 10%, coded 5299-5242 (analogous to degenerative arthritis of the spine), citing ROM limited by pain, with localized tenderness.  The VA rated the back condition 20%, coded 5243 (intervertebral disc syndrome), based on the C&P examination 2 months after separation, citing “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  The panel observed that multiple examinations recorded the presence of signs of non-organic pain, poor effort, and sensory loss in a non-anatomic pattern.  It was also noted that the unobserved motion was inconsistent with the limitations recorded on formal testing, but was consistent with the pathology present on objective testing.  However, the final examination in evidence prior to separation and the VA examination shortly after separation did not record the presence of signs of non-organic pain.  Also, the limitation in motion on both examinations supported a 20% rating.  The panel agreed that a 20% rating, but no higher, was supported by the limitation of flexion as reported on the MEB NARSUM addendum and VA examinations.  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 LBP condition, coded 5242.  

Chronic Left Shoulder Pain.  According to the STR and MEB NARSUM, the right-hand dominant CI injured his left shoulder lifting weights in April 2003.  On examination in May 2003, he was noted to have spasm, but full ROM of the shoulder.  At a 27 February 2004 orthopedics examination, signs of impingement were present.  Flexion and abduction were both 110 degrees (normal 180 for both).  A 3 March 2004 MRI was unremarkable for soft tissue pathology, but degeneration of the acromioclavicular joint (ACJ), the joint between the collarbone and shoulder blade, was present.  The physical examination on 4 March 2004 physical examination noted abduction limited to 90 degrees.  Flexion was not documented.  A 23 March 2004 orthopedics examination noted flexion and abduction to be 110 degrees.  The CI was diagnosed with impingement and adhesive capsulitis.  One month later, motion had improved to 160 degrees of flexion and 120 degrees abduction and to 170 degrees flexion and 120 degrees abduction one month after that (8 June 2004).  The examiner did not comment on painful motion 

At the 6 July 2004 MEB NARSUM evaluation, 7 months prior to separation, the examiner noted the CI could only abduct his left shoulder to 90 or 95 degrees and said it “hurts to push, pull or stress shoulder.”  The examiner did not report a measurement for forward flexion.  The CI was noted to have tenderness over the anterior superior and lateral anterior aspects of the left shoulder and weakness when compared to the right shoulder.  Shoulder dislocations were not reported.  Physical examination showed no evidence of instability.  Four months later, abduction was limited to “no more than 80 degrees.”  No explanation was documented to account for the significant deterioration.  The panel also noted the CI improved at each previous examination.  Flexion was not recorded.  During the 3 November 2004 MEB examination (recorded on the NARSUM addendum and DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported left shoulder pain.  The physical examination showed pain and tenderness over the anterior superior aspect of the left shoulder.  The CI’s ROM was limited with abduction at 80 degrees.  There was no report of forward flexion.  The examiner noted that the CI could not put his left arm behind his neck or back.  

At the 18 April 2005 VA Compensation and Pension (C&P) examination, performed 2 months after separation, the CI reported daily left shoulder 5-6 out of 10 pain which increased to 10/10 pain with lifting his arm over his head or moving it out to the side.  His shoulder pain was exacerbated by activity.  The physical examination showed a “notable bulge and asymmetry in the left acromioclavicular joint when compared to the right” with “point-tenderness in this area.”  The CI had 3/5 strength with “grip strength slightly decreased [to] perhaps 4/5.”  Muscle atrophy was not noted though.  The ROM measurements were 120 degrees of forward flexion and 80 degrees of abduction after repetition and limited by subjective pain.  Objective signs of pain (such as grimacing) were not recorded.  There was “slight associated weakness with each [additional] repetition.”  However, there was no additional decrease in motion or fatigability.  The examiner noted that each measurement “yielded the exact same range of motion.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left shoulder pain condition 10%, coded 5099-5003 (analogous to degenerative arthritis), citing the US Army Physical Disability Agency pain policy.  The VA rated the left shoulder pain condition 20%, coded 5201 (arm limitation of motion) citing limitation of abduction at shoulder level.  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).  The panel considered the evidence and noted that multiple examinations in orthopedics documented flexion and abduction well above the level of the shoulder.  The MRI noted some degenerative disease of the ACJ, but did not show soft tissue changes consistent with the level of abduction impairment noted near separation.  The C&P examiner noted the limitation in motion was exactly the same at each measurement which is atypical and reduces the probative value of the examination.  In addition, objective signs of pain were not recorded; the examiner noted that the CI stated that the limitation was due to pain.  However, both the MEB, NARSUM, and VA examinations documented motion limited to “at shoulder level” which supported a 20% rating for the non-dominant arm.  The panel majority determined that despite the above concerns, both examinations remained probative for rating purposes 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 20% for the left shoulder condition.  

BOARD FINDINGS:  In the matter of the back condition, the panel unanimously recommends a disability rating of 20% coded 5242 IAW VASRD §4.71a.  In the matter of the left shoulder condition, the panel majority recommends a disability rating of 20% coded 5242 IAW VASRD §4.71a.  The single voter for dissent recommended no change for the left shoulder condition, but elected not to submit a minority opinion.  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	5299-5242	20%	
Chronic Pain, Left Shoulder	5299-5201	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160926, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170018953, 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.

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

Sincerely,					      
Enclosure