RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01945
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060727

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E7, Military Policeman, medically separated “chronic neck pain” and “right shoulder pain,” rated 10% each, with a combined disability rating of 20%. 

CI CONTENTION:  His many medical conditions broke him down to a permanent depression.  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 - 20060707	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain	5241	10%	No VA Examination Proximate to Separation in Evidence
	
Right Shoulder Pain	5099-5003	10%		
Major Depressive Disorder (MDD)	Not Unfitting		
Left Ear Tinnitus	Not Unfitting		
Right Hand Pain	Not Unfitting		
Left Ankle Pain	Not Unfitting		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Neck Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s chronic neck pain condition began in February 2004 when he fell backwards off a truck.  He underwent an anterior discectomy and fusion at C5-6 in October 2005. 

During the 12 January 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the neck range of motion (ROM) measurements were 25 degrees of forward flexion (normal 45) and combined ROM of 145 degrees (normal 340).  The 17 January 2006 ROM evaluation by physical therapy (PT) showed 25 degrees of flexion and combined ROM of 145 degrees.  There was pain in all planes of movement, except rotation.  At the 10 February 2006 physical medicine and rehabilitation examination, 6 months prior to separation, the CI complained of constant burning neck pain with a severity of 4/10.  On examination, his posture was deviated with a “forward head,” mild to moderate spasm at the middle trapezius, and tenderness in the cervical paraspinals.  The ROM evaluation showed 30 degrees of flexion. 

The 30 March 2006 MEB NARSUM examination, 4 months prior to separation, noted complaints of constant 7/10 neck pain that flared to 9/10 when exacerbated by driving or reading.   Physical examination showed tenderness.  The ROM measurements were forward flexion of 25 degrees and combined ROM of 115 degrees.  There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5241 (spinal fusion), citing ROM limited by pain, tenderness and spasm.  Members agreed that a 20% rating, but no higher, was justified for limitation of flexion greater than 15 degrees but not greater than 30 degrees or combined ROM not greater than 170 degrees, as reported on the MEB, NARSUM and PT examinations.  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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the neck condition, coded 5241.  

Right Shoulder Pain.  According to the STR and MEB NARSUM, the right-handed CI sustained an injury to the right shoulder when deployed in February 2004 and underwent a SLAP (superior labrum anterior posterior) repair, an acromioplasty (removal of a small piece of bone in contact with a tendon), and a rotator cuff repair on 13 May 2005.  

During the MEB examination, the CI complained of right arm numbness and tingling.  The ROM evaluation showed flexion of 100 degrees (normal 180) and abduction of 90 degrees (normal 180).  The PT ROM evaluation showed 100 degrees of flexion and 90 degrees of abduction, with 3-/5 muscle weakness and pain with abduction and passive adduction.   At the 10 February 2006 physical medicine and rehabilitation ROM evaluation, 6 months prior to separation, examination showed 90 degrees of flexion.  

The MEB NARSUM examination a month and a half later noted complaints of constant 4/10 pain with flares to 8/10.  The ROM evaluation showed forward flexion of 100 degrees and abduction of 90 degrees.  The CI complained at a 17 October 2006 PT examination, 3 months after separation, of 8/10 right shoulder pain and a deviated right shoulder that was higher than the left.  The right shoulder ROM measurements were flexion of 85 degrees and abduction of 68 degrees (with impingement) and 4/5 muscle strength.  A physical medicine and rehabilitation note on 16 January 2007, 6 months after separation, recorded right shoulder flexion and abduction at 90 degrees each.  There was no VA shoulder examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition 10%, analogously coded as 5003 (arthritis, degenerative), citing slight and frequent pain.  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 20% rating for the dominant arm requires motion limited to “at shoulder level” and examinations reflected this degree of limitation.  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 impairment), and no higher rating available under the 5203 code (clavicle or scapula impairment).  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 right shoulder condition, coded 5201.  

Contended PEB Condition:  MDD.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was profiled and implicated in the commander’s statement, and was judged to fail retention standards.  

The 1 March 2006 MEB NARSUM psychiatric addendum, 4 months prior to separation, indicated the CI reported feeling irritable with a depressed mood, insomnia, lack of motivation in usually pleasurable activities, and lack of energy precipitated by chronic pain and lack of functionality from his unfitting conditions (see above) as well as other injuries sustained when deployed.  In the summer of 2005 he began seeing a psychologist and was in a partial hospital program for 1 month for more intense and structured treatment.  Because of his injuries, he felt despondent and depressed since he knew that he would not be able to return to his civilian occupation given his physical limitations.  Medications included Wellbutrin (bupropion) and Effexor XR (venlafaxine), both anti-depressants.  A mental status examination revealed a pleasant and cooperative CI who was alert, awake, and oriented in all three spheres.  His mood seemed sad (“too passive, no desire to do anything”) and his affect seemed mildly constricted and mood was congruent. Thought processes were logical, relevant, and goal-directed.  He denied any suicidal or homicidal ideation, paranoid ideations, or hallucinations.  Intelligence seemed to be in the average range, reality testing was intact, reliability was good, and impulse control was adequate.  The examiner’s diagnosis was severe recurrent major depressive disorder with marked impairment for further military duty and mild impairment for social and industrial adaptability. 

At a C&P mental health examination on 11 January 2007, less than 6 months after separation, the diagnosis was depressive disorder, not otherwise specified; the Global Assessment of Functioning score was 60 (moderate symptoms).  The CI did not fulfill the criteria for post-traumatic stress disorder and MDD; however, the CI did have signs and symptoms that resulted in a deficiency in work efficiency because of continued pain, physical limitations and mood variations that interfered with his capacity to engage in a physically demanding activity.  

After due deliberation, the panel agreed the preponderance of the evidence with regard to the functional impairment of the MDD for both his military and civilian occupations favors its recommendation as an additionally unfitting condition for disability rating. Panel members agreed the preponderance of evidence did not support the application of §4.129.   The condition is appropriately coded 9434 and meets the VASRD §4.130 criteria for a 10% rating, which requires “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication.”  Other than a depressed mood, the CI’s limitations and symptoms did not rise to a 30% rating.

Contended PEB Conditions:  Left Ear Tinnitus, Right Hand Pain, and Left Ankle Pain.  None of the conditions were profiled or implicated in the commander’s statement, and neither did they fail retention standards.  There was no performance-based evidence from the record that any of the 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 any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the neck condition, the panel recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a.  In the matter of the right shoulder condition, the panel recommends a disability rating of 20%, coded 5201 IAW VASRD §4.71a.  In the matter of the contended major depressive disorder, the panel agrees it was unfitting and recommends a disability rating of 10%, coded 9434 IAW VASRD §4.130.  In the matter of the contended left ear tinnitus, right hand, and left ankle conditions, the panel 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 the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Neck Pain	5241	20%	
Right Shoulder Pain	5201	20%	
Major Depressive Disorder	9434	10%	
COMBINED	40%	

AR20180015201, 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 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.