RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  pd-2016-01324
BRANCH OF SERVICE:  army	SEPARATION DATE:  20040413

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Fuel and Electrical Systems Repairer, medically separated for “chronic pain, neck due to degenerative disk disease [DDD], low back due to lumbar DDD and both shoulders due to impingement syndrome,” with a disability rating of 20%.

CI CONTENTION:  “Back and neck injuries.  Injuries in all joints.”  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 it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20031205	VARD - 20050609	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Neck due to DDD, Low Back, due to DDD, and Both Shoulders, due to Impingement Syndrome	5099-5003	20%	DDD, Cervical Spine C2-3, C4-5	5003-5242	10%	20040930	
			DDD, L5-S1 Lumbar Spine	5003-5242	20%	20040930	
			Bilateral Shoulder Condition	5203	NSC	20040930	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:

Chronic Pain, Neck due to DDD, Low Back Due to DDD and both Shoulders, due to Impingement Syndrome.  The PEB combined the neck, back, and bilateral shoulder conditions as a single unfitting condition analogously coded 5003 and rated 20% with application of the US Army Physical Disability Agency pain policy.  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.  Therefore, the panel’s initial charge in this case was 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 panel first considered if the neck, back, and bilateral shoulder conditions, having been de-coupled from the combined PEB adjudication, each remained separately unfitting as established above.

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a long history of neck, back and bilateral shoulder pain dating back to 1998.  The CI believed heavy lifting over time due to military specialty requirements contributed to his painful joints.  

The 11 June 2003 permanent profile listed “degenerative cervical and lumbar disc disease” and “bilateral shoulder impingement” with “right rotator cuff tear.”  The neck, back and bilateral shoulder conditions were all judged to fail retention standards.  The 17 September 2003 commander’s statement specifically implicated the back condition, but also noted the CI’s physical limitations impaired his ability to perform military specialty requirements of standing and walking for long durations, lifting weight to 220 pounds and carrying 50 feet.  The panel concluded there was not a preponderance of evidence of the service records that overcame the panel’s presumption that the bundled neck, back and bilateral shoulder conditions were reasonably considered separately unfitting.  Based on this same fitness evidence the panel also concluded each of the shoulder conditions were unfitting.  Therefore, the evidence for the  neck, back and bilateral shoulder conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating as indicated below.

Chronic Neck Pain due to DDD.  According to the STR and the MEB NARSUM, the CI reported neck pain that radiated to the left upper extremity (UE) to the elbow and to the right UE to the hand in August 2001.  A 16 August 2001 MRI showed DDD of the cervical spine without central canal stenosis (narrowing).  A 26 September 2002 electrodiagnostic study showed mild right carpal tunnel syndrome and possible C8-T1 radiculopathy or lower trunk plexopathy.  The CI was treated conservatively by pain management with some improvement, but right UE pain continued.  A 28 May 2003 cervical MRI showed C3-C4 and C5-C6 DDD, and mild C3-C4 disk space narrowing and disk bulge without compression of the spinal nerve.  Electrodiagnostic studies of the UEs performed on 9 Feb 2004 showed chronic bilateral C5-C7 cervical radiculopathies.  There was no evidence of ulnar neuropathy (numbness or tingling) at the elbow.

At the 4 June 2003 MEB NARSUM examination, 10 months prior to separation, the CI reported he could not lift heavy objects or wear a ruck sack.  On examination, there was normal strength, reflexes and sensation of the upper extremities.  Range of motion testing (ROM) testing showed flexion of 20 degrees (normal 45) and combined ROM of 175 degrees (normal 340); painful motion was not addressed.  

At the 30 September 2004 VA Compensation and Pension (C&P) evaluation, 6 months after separation, the CI reported constant neck pain which limited his physical activity.  The VA examiner indicated the CI was a “very poor historian.”  The CI denied time off from work in the past 12 months due to medical reasons.  Physical examination showed no spasm, but there was tenderness.  ROM testing showed flexion of 30 degrees and combined ROM of 190 degrees; painful motion was present.  Cervical X-rays showed C7 vertebra with mild DDD and mild anterior wedging (compression) that did not appear to be acute.

The panel then considered its rating recommendation for the neck condition at the time of separation.  The VA rated the neck condition 10%, analogously coded 5003-5242 (degenerative arthritis - degenerative arthritis of the spine), citing limitation of flexion.  This rating was increased to 20% in 2012 based on “a clear and unmistakable error.”

The panel agreed a 20% rating, but no higher, was justified for limitation of cervical flexion greater than 15 degrees but not greater than 30 degrees as reported by the MEB NARSUM and VA examination.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  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 neck condition, coded 5243 (IVDS).

Chronic Low Back Pain due to DDD.  According to the STR and the MEB NARSUM, an August 2001 neurosurgical evaluation noted complaints of low back pain and right lower extremity (LE) radicular pain without bowel or bladder problems.  Lumbar MRI showed L5-S1 DDD and herniation.  A lumbar MRI performed on 28 May 2003 showed L2-S1 DDD with mild disk bulges and L4-L5 abnormal facet joints with mild compression of the spinal nerve.  The LE electrodiagnostic study performed on 3 June 2003 revealed a bilateral S1 radiculopathy.

At the 4 June 2003 MEB NARSUM examination, 10 months prior to separation, physical examination showed normal LE strength, sensation and reflexes.  The CI was able to squat and walk on toes and heels without difficulty.  There was lumbosacral tenderness.  Low back ROM showed flexion to 85 degrees (normal 90) and combined ROM was incomplete; painful motion was present. 

At the 30 September 2004 C&P evaluation, 6 months after separation, the CI reported constant back pain.  The CI was using a cane.  Physical examination showed normal lumbar curvature, but the thoracic (mid-upper) spine was bent forward (kyphotic curvature).  However, there was no evidence of spasm or guarding.  Sensation was intact without visible upper or lower muscle group atrophy.  Straight leg raise testing (for radiculopathy) was negative.  The examiner noted the CI was able to rise from a lying position to a sitting position on the examination table without problems.  Lumbar spine ROM showed flexion of 60 degrees and combined ROM of 210 degrees; painful motion was present.  Lumbar X-rays showed mild DDD.

The panel then considered its rating recommendation for the back condition at the time of separation.  The VA rated the back condition 20%, analogously coded 5003-5242, based on the C&P examination 6 months after separation, citing limitation of flexion.

The panel noted the VA examination measured flexion to 60 degrees which was significantly less than the MEB NARSUM’s 85 degree measurement.  The VA examiner specifically noted the CI was able to rise from a lying position to a sitting position on the examination table without problems.  The panel noted there was no record of recurrent injury or other development to explain the marked VA flexion measurement.  While ROM limitations may progress over time, there was no evidence to conclude that the severity at separation approached that portrayed by the VA measurement.  The panel agreed the VA’s single flexion measurement was insufficient evidence to recommend a higher rating than 10% at separation.  The combined ROM at the VA examination supports a 10% rating and there was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour to support the next higher 20% rating.  Panel members also agreed a 10% rating, but no higher, was justified for limitation of lumbar flexion greater than 60 degrees but not greater than 85 degrees, as reported on the MEB NARSUM examination.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  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 back condition, coded 5243.

Chronic Bilateral Shoulder Pain due to Impingement Syndrome.  According to the STR and the MEB NARSUM, the right hand dominant CI initially reported his right shoulder pain began in approximately 2001.  A 2 April 2002 orthopedic visit indicated the CI had multidirectional shoulder instability aggravated by his work as a mechanic.  Right and left shoulder MRIs performed on 12 June 2002 were normal.  A repeat right shoulder MRI performed on 28 May 2003 showed a large acromial bone spur (top of the shoulder) and acromioclavicular joint hypertrophy (enlarged) consistent with impingement and a possible partial rotator cuff tear.  A 19 August 2003 physical therapy visit noted ROM of both shoulders was decreased approximately 50% in all planes and was extremely painful.

The 4 June 2003 MEB NARSUM physical examination, 10 months prior to separation, showed normal UE strength, sensation, and reflexes.  Shoulder impingement testing was positive.  An undated MEB NARSUM Addendum noted the CI had bilateral shoulder tenderness and marked guarding throughout the examination.  Shoulder stability was difficult to ascertain secondary to marked guarding.  ROM testing for the right shoulder revealed flexion and abduction of 95 degrees each (normal 180); painful motion was not addressed.  The left shoulder showed flexion of 110 degrees and abduction to 90 degrees; painful motion was not addressed.

At the 30 September 2004 C&P evaluation, 6 months after separation, the CI reported bilateral shoulder pain but denied any joint trauma.  Bilateral shoulder ROM testing recorded flexion and abduction of 100 degrees; painful motion was present bilaterally.  Bilateral shoulder X-rays were normal.

The panel then considered its rating recommendation for the right and left shoulder conditions at the time of separation.  The VA did not service connect the bilateral shoulders, citing no permanent residual or chronic disability was shown by STR or demonstrated by evidence following service.

The VASRD §4.71a threshold for a 20% rating for ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side).  The panel agreed that both the MEB NARSUM and VA examinations demonstrated motion limited to this level for both shoulders.  There was no evidence for a higher 30% rating for the dominant right arm which requires motion limited to “midway between side and shoulder level.”  There was no malunion with marked deformity or frequent episodes of recurrent dislocation of the humerus to justify a higher rating under the 5202 code (humerus, other impairment), and no higher ratings available under the 5203 code (clavicle or scapula, impairment).  There was therefore no higher rating than 20% available for either shoulder under any applicable code.  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 right shoulder condition and 20% for the left shoulder condition, both coded 5201.

BOARD FINDINGS:  In the matter of the neck condition, the panel unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a.  In the matter of the back condition, the panel unanimously recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the bilateral shoulder conditions, the panel unanimously recommends a disability rating as follows: an unfitting right shoulder condition rated 20%, and an unfitting left shoulder condition rated 20%, both coded 5201 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows and 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 Neck Pain due to Degenerative Disk Disease	5243	20%	
Chronic Low Back Pain due to Degenerative Disk Disease	5243	10%	
Chronic Right Shoulder Pain due to Impingement	5201	20%	
Chronic Left Shoulder Pain due to Impingement	5201	20%	
COMBINED 	60%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161003, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180000798, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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 60% effective the date of your medical separation for disability with  permanent disability retirement.  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