RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX  	CASE:  PD-2017-00592
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20051002

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E8, Human Resources Specialist, medically separated for “chronic low back pain” and “chronic left shoulder pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  Review all conditions.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20050907	VARD - 20060327	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disc Disease, Lumbar Spine	5242	40%	20051107	
Chronic Left Shoulder Pain and Left Upper Extremity Weakness	5201	0%	Status Post Left Shoulder Acromioplasty	5201	40%	20051107	
Psychosis, NOS	Not Unfitting	Dysthymic Disorder, Depression and History of Toxic Psychosis	9433	30%	20051110	
Major Depression 	Not Unfitting					
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  90% 	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in June 1994 after a bad parachute landing fall (PLF).  On 18 March 2004, the CI was seen in the emergency room for back pain.  A lumbar spine MRI demonstrated degenerative disc changes at L4-5 and L5-S1.  There was a posterior central annular disc tear at L4-5 and minimal central disc protrusion at S1 and no significant canal or foraminal (site of nerves passing through the vertebral column) compromise.    

A note dated 29 April 2004 showed full active range of motion (ROM) with tenderness.  At an orthopedic examination on 17 May 2004, flexion was approximately 45 degrees (normal 90) and extension about 5 degrees (normal 30) with some tenderness mainly around the paraspinous muscle area.  A physical medicine and rehabilitation examination on 26 October 2004 revealed scoliosis at about the mid thoracic spine and he had left lumbar deviation.  Forward flexion was 30 degrees, extension was 20 degrees and left and right lateral flexion was 30 degrees (normal).  There was pain in all planes of motion.  There was tenderness over the paraspinals bilaterally.  An MRI dated 7 February 2005 revealed degenerative disc disease, L4 to S1 including minimal midline disc protrusion at L4-5 with an annulus tear and a bulging disc at L5-S1.  The previous bulging annulus tear at L5-S1 was slightly less evident without any central canal compromise.  There was mild to moderate neural foraminal narrowing slightly greater at L5-S1 than L4-5 bilaterally abutted the existing nerve roots with slight compression on the left L5 existing nerve root.  

During 24 March 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), less than 7 months prior to separation, the CI reported chronic intermittent low back pain.  Physical examination showed tenderness over the lumbar region with limited active ROM of flexion at approximately 20 degrees and back pain.  The CI was seen in the emergency department (ED) on 6 April 2005 for a backache.  Examination of the back revealed tenderness without any neurological deficit of the lower extremities.  X-rays of the lumbosacral spine demonstrated mild degenerative disc disease of the L1-2 disc space.  
  
The 4 May 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of chronic back pain with left lower extremity radiculopathy.  Reflexes were 2+ bilaterally at the knee and ankle.  Physical therapy MEB ROM measurements, dated 11 May 2005, (limited by pain of the lumbar spine) were:  25 degrees flexion (normal 60 for the lumbar spine; 90 for the thoracolumbar spine), 20 degrees extension, 25 degrees left lateral bend, 20 degrees right lateral bend, and 30 degrees left and right rotation (normal 30).  

At the 7 November 2005 VA Compensation and Pension (C&P) evaluation, 1 month after separation, the physical examination showed no abnormal spinal curvatures.  The examiner noted the CI gave minimal effort during ROM testing claiming pain with the slightest movement or touch.  Forward flexion was 10 degrees and combined ROM was 80 degrees (normal 240), with pain throughout all motions and touching of all joints.  There was no additional loss of motion with repetition.  Gait was normal.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain), citing flexion of 30 degrees and extension of 20 degrees, measurements limited by pain.  The VA rated the back condition 40%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing forward flexion of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine.

The panel noted the physical therapy examination provided ROM values for the lumbar spine not the goniometric thoracolumbar ROM specified by the VASRD (§4.71a, Plate V).  The examiner reported lumbar flexion of 25 degrees after repetition.  The normal flexion for the lumbar spine is approximately 60 degrees.  When combined with a normal thoracic ROM, this would represent approximately 55 degrees of thoracolumbar flexion correlating with a 20% rating using the current VASRD General Spine Rating formula.  Therefore, 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 MEB physical therapy examination.  Members noted that the VA rating of 40% was based on a flexion of 10 degrees; however, the examiner noted the CI made minimal effort during ROM testing claiming pain with the slightest movement or touch, thereby lowering the validity of the measurements for rating purposes.  Furthermore, there was no documentation of an accident or injury to account for the marked decrement in not only flexion, but also combined ROM, albeit the MRI in February 2005 noted the presence a bulging disc at L5-S1.  There was no documentation of intervertebral disc syndrome 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 back condition, coded 5237.  

Chronic Left Shoulder Pain and Left Upper Extremity Weakness.  According to the STR and MEB NARSUM, the right-hand dominant CI’s chronic left shoulder pain condition began in June 1994 after a bad PLF as stated above.  The CI underwent an open acromioplasty and distal clavicle excision of the left shoulder for acromioclavicular arthrosis and impingement syndrome of the left shoulder on 22 June 2004.  Post-surgical electrodiagnostic studies showed an abnormal left ulnar motor nerve and the ulnar sensory nerve had a moderately prolonged distal latency and a relatively decreased conduction velocity, but the F wave latencies (measuring the proximal portion of the nerve) were normal.  Diffuse denervation in the tested muscles of the left arm was present without involvement of the cervical paraspinal muscles, suggestive of a lesion in the brachial plexus.  The CI continued to have pain down into his left hand 

During the 24 March 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported pain in the left shoulder.  Physical examination showed pain in the left shoulder at the limits of ROM.  There was full ROM with left supraspinatus impingement signs.  The 4 May 2005 MEB NARSUM examination, 5 months prior to separation, showed tenderness over the remaining portion of his acromioclavicular joint and a well-healed scar over the anterior portion of the shoulder with a keloid formation.  He also had a positive Tinel sign (indicative of nerve irritation) at the left elbow and wrist with pain throughout the whole left upper extremity from his shoulder down.  Physical therapy ROM study showed flexion of 180 degrees (normal) and abduction of 160 degrees (normal 180).  Movements were painful.  An Addendum to the MEB NARSUM dated 13 June 2005 indicated the examiner believed that most of the CI’s shoulder pain was from the brachial plexus injury.  On 15 August 2005 strength of the left shoulder internal and external rotation were both 4+/5.  Shoulder flexion, extension, abduction and adduction were weak and accompanied by sharp pain, and grading was not appropriate.  

At the 7 November 2005 VA Compensation and Pension (C&P) evaluation, 1 month after separation, noted the development of a left brachial plexopathy following an interscalene block (of the roots of the brachial plexus) of the left upper extremity during surgery.  The examiner noted the CI held the left upper extremity in a rigid position and did not have a normal arm swing.  He refused ROM activity but was noted to be able to button up his shirt and sleeves using coordinated bilateral upper extremities.  Physical examination showed left shoulder abduction of 0-20 degrees, but he did not perform the rest of the ROMs of the shoulder because of pain.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic left shoulder condition 0%, coded 5201 (arm, limitation of motion of), citing abduction measured as 165 degrees.  The VA rated the left shoulder condition 40%, coded 5201, based on the C&P examination 1 month after separation, citing limitation of arm motion to 25 degrees from the side.  The VA also rated the brachial plexopathy, left upper extremity condition 10%, coded 8516 (ulnar nerve, paralysis of: mild), based on the C&P examination, citing mild incomplete paralysis of finger and wrist movements.

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).  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).  Members noted that the Addendum to the MEB NARSUM indicated the CI’s pain was due to the brachial plexopathy, which was supported by electrodiagnostic findings.  Panel members considered whether an additional rating for the brachial plexopathy would invoke VASRD §4.14 (avoidance of pyramiding).  The consensus was that pyramiding would not be invoked since the CI had painful motion of the shoulder as well as unfitting weakness of the arm and shooting pain down to the left hand.  Therefore, members determined a 10% rating using code 8516 was appropriate and reasonable.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3, the panel recommends a disability rating of 10% for the left shoulder pain, coded 5099-5003 and a disability rating of 10% for left upper extremity weakness, coded 8516.  

Contended PEB Conditions: Psychosis, NOS (not otherwise specified), and Major Depression.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The major depression was profiled, but not explicitly implicated in the first line supervisor’s or commander’s statement nor were either judged to be unfitting, although both were referred by the MEB as medically unacceptable.  The CI was seen in the emergency room on 6 April 2005, and noted to have delusions of being conspired against and reported drawing his gun to take care of all the conspirators.  As a result of his behavior he was hospitalized and later discharged on 20 April 2005.  During the hospitalization he was treated with olanzapine, an antipsychotic medication, and slept the whole night for the first time in weeks.  Thereafter, he was clearer, cooperative and had good eye contact and denied paranoid ideation and homicidal or suicidal thoughts.  By the end of the hospitalization, he was free of paranoid ideation without medication and was pleasant and cooperative.  On a mental status examination, he was cooperative with good grooming and hygiene and had a normal voice, speed and volume.  He did grimace with pain at times and stood for parts of the interview.  He appeared somewhat depressed with a constricted affect and admitted to some grief feeing over the recent episode and the loss of his health and career.  His thinking process was linear and goal directed, although he admitted to some feelings of suspiciousness and of being observed when outside; however, he did recognize the feelings as irrational.  He was fully oriented and cognitively intact.  Concentration was intact and his fund of knowledge was fair, and he was able to think abstractly.  Insight and judgment were good.  The Axis I diagnoses were psychosis not otherwise specified, manifested by paranoid delusions and agitated behavior in the context of meperidine toxicity, and sleep deprivation resolving with treatment, and major depression due to general medical condition (back problem), manifested by irritability, depression, hopelessness, loss of libido, appetite, weight loss, and loss of interest or pleasure in usual activities as well as suicidal thoughts.  In each condition, impairment for military duty was marked and impairment for social and industrial capacity was considerable.  His Global Assessment of Functioning (GAF) score was 50 (serious symptoms).  The examiner indicated the prognosis was fair with treatment and opined the psychosis was quite likely to resolve completely within 1-3 months with no recurrence, although the depression was more difficult to treat in the presence of continual pain.  At a psychiatric clinic visit on 10 June 2005 the CI noted he had “a dawning awareness” of the inadequacy of his treatment, which he stated was responsible for his severe orthopedic problems.  He was able “to identify and articulate angry feelings” and ruminated over the injustice he felt was done to him.  He had no homicidal or psychotic thinking, but found himself frightened at times at the lack of control over his future, and feared that the “loss of his health may mean his income and livelihood is compromised.”  Sleep was greatly improved with medication.  The psychiatrist’s assessment was psychosis NOS, resolved and adjustment disorder, improving.  

At a VA psychiatry consult on 20 April 2006, 6 months after separation, the CI reported he felt the paranoia coming when he ran out of medication on around October/November 2005 and stayed home.  In December 2005, he had a paranoid episode where he thought his neighbor had a camera and accused his own wife of being unfaithful.  The examiner’s Axis I diagnosis was provisional schizoaffective disorder versus schizophrenia with good prognostic features and the GAF score was 51 (serious symptoms).  Treatment consisted of continued olanzapine and bupropion (an antidepressant).  The CI continued to receive psychiatric care and medication for the schizoaffective disorder.  By 7 September 2006, his mood was better on current medications and he was more alert and reported feeling like he could think clearly.  He did appear to be in pain from his back and he walked with a stiff posture.  He had no suicidal or homicidal ideation, delusions or hallucinations.  Insight and judgment were good and impulse control was intact.  

Although the record was limited in regard to performance, his mental health status was alluded to in his supervisor’s statement dated 27 April 2005, 7 day after hospitalization, that the CI was placed on 7 days quarters, and then 30 days convalescent leave (x2) which was directly related to his medical condition.  The CI continued psychiatric care as well as taking the olanzapine along with antidepressant medication through the time of separation.  Both affected his availability to perform his duties, which his supervisor alluded to by noting, “his frequent absence has made me task other members of the section to complete his duties which are designated as his primary duties.”  After due deliberation, the panel agreed that the preponderance of evidence with regard to the functional impairment of psychosis NOS favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 9208 (delusional disorder) and meets the VASRD §4.130 criteria for a 10% rating.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the left shoulder pain, the panel unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left upper extremity weakness, the panel unanimously recommends a disability rating of 10%, coded 8516 IAW VASRD §4.124a.  In the matter of the contended psychosis disorder, the panel unanimously agrees that it was unfitting and recommends a disability rating of 10%, coded 9208 IAW VASRD §4.130.  In the matter of the contended major depression disorder, 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 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	5237	20%	
Chronic Left Shoulder Pain	5099-5003	10%	
Chronic Left Shoulder Weakness	8516	10%	
Psychosis	9208	10%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170214, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004712, 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 50% 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