RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-01908
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080625

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E7, Supply Sergeant, medically separated for “residual weakness from chemotherapy and radiation treatment for [left] breast cancer” with a disability rating of 0%.  “Left foot metatarsal fracture,” “chronic neck pain,” and “chronic upper back pain” were determined to have existed prior to service (EPTS) and were not rated.

CI CONTENTION:  The CI can no longer work due to the side effects of her treatment and current medication. She submitted documents, which were taken into consideration.  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 - 20080326	VARD - 20080904	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Residual Weakness From Chemotherapy and Radiation Treatment For Breast Cancer	6399-6354	0%	Residuals Status Post (S/P) Partial Mastectomy…Left Breast	7626-7627	100%	20071210	
Left Foot Metatarsal Fracture	EPTS	No VA Placement	
Chronic Neck Pain	EPTS	Cervical Spine Condition	5237	NSC	STR	
Chronic Upper Back Pain	EPTS	Sacrococcygeal and Thoracolumbar Spine Strain…	5237	NSC	20071210	
Chronic Right Shoulder Pain	Not Unfitting	Right Shoulder Impingement Syndrome, S/P Rotator Cuff Repair	5201-5024	10%	20071210	
Post Breast Cancer Treatment Arthralgias in Hand/Fingers, Hips and Lower Back	Not Unfitting	Bilateral Hand Arthralgias with Trigger Fingers in Bilateral Hands Associated with Left Breast Mastectomy…	5003	NSC	20071210	
		Bilateral Hip Tensor Fascia Strain and Iliotibial Band Syndrome associated with Left Breast Mastectomy…	5252	NSC	20071210	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Residual Weakness From…Treatment for Breast Cancer.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent a left partial mastectomy in February 2006 and the lymph node dissection was positive. She was treated with chemotherapy and radiation treatment followed by a 5-year course of Tamoxifen (anti-estrogen medication to reduce risk of cancer recurrence).  Her residual limitation was related to weakness and decreased ability to perform strenuous duties with her left arm due to the lymph node dissection.  

At the 10 December 2007 VA Compensation and Pension (C&P) joints examination, 7 months prior to separation, the CI reported that she was working four 10-hour days and “one to two times per week I just leave halfway through the day because I am feeling sick.”  The permanent profile dated 8 January 2008, 6 months prior to separation, listed “history of left breast cancer (s/p chemo and XRT [radiation therapy]).”  The commander’s statement dated 23 January 2008 stated the CI’s performance had diminished due to “physical limitations and lack of focus caused by the treatments [for breast cancer].  She tired very easily and would end up working shorter shifts and weeks in many instances.”  He noted the CI was not able to perform all physical tasks of her military occupational specialty (MOS) or the routine duties of all soldiers.  The same-day MEB NARSUM examination noted complaints of the inability to lift, march, perform field duties or issue supplies to soldiers.  The CI was unable to run or do push-ups or sit-ups as part of fitness testing due to her various conditions and she was still on Tamoxifen.  Physical examination only addressed blood pressure and neck range of motion (ROM) and showed the CI was right-hand dominant. There was no VA examination in evidence proximate to separation that directly addressed the breast cancer treatment-related symptoms of lack of stamina, fatigue, weakness or any similar complaints.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the “residual weakness from…treatment for breast cancer” condition 0%, analogously coded as 6354 (chronic fatigue syndrome), citing Army Regulation 635-40, B-15 (0 percent ratings and minimum ratings).  The PEB DA Form 199 noted that there was no evidence of recurrent cancer and the unfitting residual was generalized weakness and the CI’s limited use of her [non-dominant] left arm “should not be unfitting.”  The VA rated the left breast cancer condition 100%, dual coded 7626-7627 (breast, surgery-malignant neoplasms of breast), based on the C&P examination, citing evidence that showed two partial mastectomies, and a left sentinel node dissection to remove a malignant cancer of the left breast, and still being treated with antineoplastic therapy.

The commander’s statement noted that the primary factor that impaired the CI’s successful duty performance was her lack of physical stamina.  The panel agreed this was appropriately rated analogous to chronic fatigue syndrome.  There was no evidence of ongoing incapacitating episodes (requires bed rest and treatment by a physician).  However, there was evidence to support a 20% rating for “debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms which are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level” based on the commander’s statement, which indicated the CI left work due to fatigue and/or lack of concentration between 12% and 25% of her weekly work hours.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the “residual weakness from…treatment for breast cancer” condition, coded 6399-6354.

Contended PEB Conditions:  Chronic Neck Pain, Chronic Upper Back Pain Associated With Neck Pain, Chronic Right Shoulder Pain, and Post Breast Cancer Treatment Arthralgias in the Hand/Fingers, Hips, and Lower Back.  

The panel’s main charge is to assess the fairness of the PEB determination that these contended conditions were not unfitting.  In the case of the chronic neck and upper back pain, the PEB determined the conditions were EPTS based on a history of surgical cervical spine fusion in 1990 while in civilian status.  The panel found no evidence to indicate this was incorrect.  The panel next considered whether or not there was evidence of permanent service aggravation (PSA).  

The PEB determined there was no evidence of permanent worsening of the conditions beyond natural progression.  A presumption of service aggravation may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  The CI entered into military service on active duty in September 1974 and served for 3 years.  She re-enlisted with the National Guard in 1983 and since that time had served on active duty from February 2002 to February 2005.  The PEB adjudication did not provide any medical evidence or put forth any accepted medical principle to support that the progression of the conditions was clearly unaltered by military service.  The panel therefore determined that the PEB had not overcome the presumption of service aggravation of either condition.  Accordingly, the panel considered a separate disability rating recommendation for each condition.

Chronic Neck Pain.  According to the STR and MEB NARSUM, the CI had surgery for cervical spine fusion in 1990 and since that time reported intermittent neck pain.  The CI also reported that since approximately June 2006, following treatment for the breast cancer condition, the neck pain had worsened.  The NARSUM noted the CI had been issued a permanent U3 profile for the condition.  The MEB NARSUM examination noted complaint of intermittent neck pain.  The CI took anti-inflammatory medication nightly and used pain medication once or twice per month.  Physical examination showed no tenderness or muscle spasm.  Neck ROM was forward flexion of 50 degrees (normal 45) and combined ROM of 235 degrees (normal 340), with painful motion noted.  A cervical spine MRI in October 2006 showed fusion at C5-6 and straightening of the cervical spine following surgical fusion.  There was no evidence in relation to the neck condition found in the C&P examination proximate to separation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB determined that the neck condition EPTS, coded 5241 (spinal fusion), and was not compensable.  The VA did not service-connect the cervical spine condition.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 170 degrees but not greater than 335 degrees), as reported on the MEB NARSUM examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  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 the evidence, and mindful of VASRD §4.3 (reasonable doubt), the panel concluded the EPTS neck condition was PSA and recommends a disability rating of 10%, coded 5241 (spinal fusion).  

Chronic Upper Back Pain.  According to the STR and MEB NARSUM, the CI reported neck and upper back pain after the completion of chemotherapy and radiation therapy for breast cancer.  A thoracic MRI in October 2006 showed a paracentral disc protrusion at T9-10 and an old T7 compression wedge fracture with approximately 30% loss of height, but was otherwise normal.  

At the 10 December 2007 VA C&P joints examination the CI reported low back pain and pointed to the coccyx area, where she had a history of a fracture [not in scope].  The CI reported a bone scan in September 2006 which showed a T7 compression fracture. An MRI performed in October 2006 confirmed an old T7 compression fracture, which was felt to be benign and not related to bone metastasis of the breast cancer.  Physical examination showed a mildly antalgic gait.  There was tenderness throughout the thoracolumbar region, without muscle spasm.  Thoracolumbar ROM was flexion 90 degrees (normal) and combined ROM of 230 degrees (normal 240), with painful motion noted.  There was no additional loss of ROM with repetitive use.  At the MEB NARSUM examination, physical examination noted no tenderness or muscle spasm of the thoracic spine.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB determined that the upper back condition was EPTS, coded analogously as 5243 (IVDS), and not compensable.  The VA did not service connect an upper back condition.  The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the pre-separation VA examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no documentation of IVDS with incapacitating episodes, which would provide for a higher rating under that formula.  After due deliberation, considering all the evidence, and mindful of VASRD §4.3 (reasonable doubt), the panel concluded the upper back condition was PSA and recommends a disability rating of 10%, coded 5243.

Chronic Right Shoulder Pain and Post Breast Cancer Treatment Arthralgias.  The panel’s main charge is to assess the fairness of the PEB determination that these contended conditions were not unfitting.  The right shoulder and arthralgia conditions were not implicated by the commander’s statement and did not fail retention standards.  While the arthralgia condition was not implicated by a profile, the right shoulder condition was however, the subject of a U2 profile and the NARSUM indicated the CI had daily right shoulder pain since rotator cuff surgery in April 2003.  However, she was able to perform the duties required of her MOS, within the limits of her U2 profile (no pull-ups or overhead work).  As such, there was no performance-based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for either of these contended not unfitting conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the “residual weakness from chemotherapy and radiation treatment for breast cancer” condition, the panel recommends a disability rating of 20%, coded 6399-6354 IAW VASRD §4.88b.  In the matter of the contended chronic neck pain, the panel concluded it was PSA and recommends a disability rating of 10%, coded 5241 IAW VASRD §4.71a.  In the matter of the contended chronic upper back pain, the panel concluded it was PSA and recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.  In the matter of the contended chronic right shoulder pain and post breast cancer treatment arthralgias conditions, the panel recommends no change from the PEB determinations that they are 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Residual Weakness from Chemotherapy and Radiation Treatment for [Left] Breast Cancer	6399-6354	20%	
Chronic Neck Pain	5241	10%	
Chronic Upper Back Pain	5243	10%	
COMBINED	40%	

AR20190005773, XXXXXXXXXX

XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX

Dear XXXXXXXXXX:

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