RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02275
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090701

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an National Guard E4, Motor Transport Operator, medically separated for “left (non-dominant) shoulder pain” and “degenerative arthritis of the lumbar spine,” rated 10% each, with a combined disability rating of 20%.    

CI CONTENTION: Two unfitting conditions were both rated higher by the VA the day after separation. 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 - 20090402	VARD - 20100208	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left (Non-Dominant) Shoulder Pain	5009-5003	10%	Arthroscopic Decompression, Left Shoulder (Non-Dominant)	5201	20%	20091202	
Degenerative Arthritis of the Lumbar Spine	5242	10%	Myofascial Lumbar Syndrome	5237	20%	20091202	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80% 	

ANALYSIS SUMMARY:  

Left Shoulder Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent SLAP (superior labrum anterior to posterior) tear surgical repair in January 2008.  At the 21 April 2008 orthopedic clinic examination, 3 months post-surgery and 15 months prior to separation, the CI reported doing “well” with no complaints regarding his left (non-dominant) shoulder.  Physical examination revealed good rotator cuff strength, negative apprehension testing, negative sulcus testing, and an intact neurovascular examination.  Range of motion (ROM) showed forward flexion and abduction each at 130 degrees (normal 180).  The CI was discharged from physical therapy (PT) on 24 April 2008.  

During the 5 February 2009 MEB examination (recorded on DD Forms 2807-1 and 2808), 13 months after surgery and 5 months prior to separation, the CI reported limited movement and pain in the left shoulder with excess weight.  Physical examination showed forward flexion at 120 degrees and abduction at 100 degrees with painful motion.  The MEB NARSUM examination referenced the findings from the above examination recorded on DD Form 2808.  The examiner additionally noted tenderness at the sub-acromial joint and posterior area.

At the 2 December 2009 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported limited painful motion with abduction, forward flexion, and internal rotation, but no flare-ups.  The CI used no assistive device or brace. Activities of daily living were affected since the CI’s spouse had to wash his back, and it was difficult putting on sweaters and t-shirt type garments.  Physical examination showed well-healed portal arthroscopic incisions.  ROM measurements were abduction to 70 degrees with pain at the end point and forward flexion to 90 degrees with pain at the endpoint.  There was supraspinatus muscle weakness and tenderness in the bicipital groove. There were no additional limitations following repetitive use, other than increased pain without further loss of motion. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left shoulder pain 10%, analogously coded as 5003 (degenerative arthritis), citing painful motion in one major joint.  The VA rated the left shoulder pain 20%, coded 5201 (arm, limitation of motion), based on the C&P examination, citing limitation of arm motion midway between side and shoulder level or for limitation of arm motion 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 preponderance of evidence showed in service examinations demonstrated motion sufficiently close enough to that level to warrant a 20% rating with flexion at 120 degrees and abduction at 100 degrees some 5 months prior to separation. The VA findings of flexion at 90 degrees and abduction at 70 degrees, 5 months after separation, confirmed the pattern of decreasing ROM. The guidelines are not meant to be rigid, although the “at shoulder level” is felt to be 90 degrees.  Therefore, abduction at 100 degrees is reasonably close to the shoulder level.  Panel members also noted 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); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating 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 left shoulder condition, coded 5201.  

Degenerative Arthritis of the Lumbar Spine.  According to the STR and MEB NARSUM, the CI’s low back pain began in 2004 as a result of training and was exacerbated when the CI was engaged in combat during deployment in 2007.   An MRI in January 2008 showed annular tears and small protrusions at L4-L5 and L5-S1. No stenosis was identified.  PT was recommended, but did not provide relief.  A myelogram of the lumbar spine in May 2008 showed no posterior disc abnormality or spinal stenosis at the L5-S1 level, but there was degenerative change about the small facet joints bilaterally. Although the CI was a surgical candidate, the examining neurosurgeon recommended a continued conservative treatment course given the CI’s relatively young age at the time.  

During the 5 February 2009 MEB examination  physical examination showed no back spasm and  normal gait, deep tendon reflexes, and bilateral strength.  ROM measurements recorded forward flexion to 80 degrees (normal 90) and combined ROM (adjusted to VA rating standards) to 215 degrees (normal 240).  The 5 February 2009 MEB NARSUM examination noted the CI had not responded to PT, although surgery was recommended, which he declined.  He could not carry a fighting load or stand for a prolonged period.  His limitations were due to pain rather than weakness, fatigue, lack of endurance or incoordination.  The CI denied any motor or sensory symptoms.  Physical examination findings were referenced from the MEB examination recorded on DD form 2808.  The examiner additionally noted tenderness along the paraspinal muscles.

At the C&P examination the CI reported intermittent numbness in his right lower extremity and thigh and into the sole of his right foot. He also noted occasional numbness in the sole of his left foot. There were no reported flare-ups or bowel or bladder incontinence episodes.  He used a brace on occasion and reported no incapacitating episodes in the prior year.  Physical examination showed a normal gait.  The CI had tenderness in the central lower lumbar area and no spasm in the paraspinous musculature.  ROM measurements showed forward flexion to 60 degrees with pain in the center of the lumbar area and into the posterior thighs and the combined ROM was 170 degrees.  There was no change of motion with repetitive ROM testing.  He was neurovascularly intact with normal strength bilaterally.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain 10%, coded 5242 (degenerative arthritis of the spine), citing limitation of forward flexion.  The VA rated the low back pain 20%, coded 5237 (lumbosacral strain), based on the C&P examination, citing flexion limited to 60 degrees.

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the  MEB NARSUM as well as at the 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 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the low back pain.  

BOARD FINDINGS:  In the matter of the left shoulder condition, the panel recommends a disability rating of 20%, coded 5201 IAW VASRD §4.71a.  In the matter of the low back pain and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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	
Left (Non-Dominant) Shoulder Pain	5201	20%	
Degenerative Arthritis of the Lumbar Spine	5242	10%	
COMBINED	30%	

The following documentary evidence was considered:

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

AR20190007857, 

Dear XXXXXXXXXXXXXXX:

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 30% 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.  Inquiries 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 and to the counsel you listed your application, Ms. Laura Spain, Wise County Veteran Service Officer, PO Box 1567, Decatur, TX 76234-1567.

Sincerely,					      
Enclosure