RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02467
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050717

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E7, Light Wheeled Vehicle Mechanic, medically separated for “chronic neck and low back pain” and “chronic left shoulder pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  No specific contention was made.  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 - 20050607	VARD - 20051121	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck and Lower Back Pain	5237	10%	Cervical Spine Degenerative Disc Disease 	5299-5242	10%	20050906	
			Lumbar Spine Degenerative Disc Disease	5243	10%		
Chronic Left Shoulder Pain	5099-5003	0%	Residuals of Left Shoulder Injury Status Post Rotator Cuff Repair	5201	20%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:

Chronic Neck and Low Back Pain.  The PEB combined the neck and lower back conditions under a single disability rating, coded 5237 (lumbosacral or cervical strain) and rated 10%.  This 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.  However, IAW VASRD §4.71a, the general spine formula, note 6, the disability of the thoracolumbar and cervical spine segments are separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  The panel’s initial charge in this case was therefore directed at determining if 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 evidence for the neck and low back conditions is presented separately, with attendant recommendations regarding separate unfitness, and separate ratings if indicated.  

Chronic Neck Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s neck condition began in May 2003 after falling down steps.  An MRI revealed a C3-4 disc protrusion with probable left C4 nerve root impingement, but there was no surgical indication.  The 24 January 2005 MEB physical therapy (PT) examination, 6 months before separation, revealed cervical spine flexion of 45 degrees (normal) and combined range of motion (ROM) of 165 degrees (normal 340).  Painful motion was not addressed.  During the 1 February 2005 MEB NARSUM Addendum the CI reported severe neck pain.  Physical examination revealed no muscle spasm and “nearly full” ROM.  Painful motion was not addressed.  At the 23 February 2005 MEB NARSUM examination the CI reported chronic cervical spine pain and utilized a cane to walk.  Physical examination revealed pain with initiation of all motions 

The 6 September 2005 VA Compensation and Pension (C&P) examination, 2 month after separation, noted complaints of chronic upper cervical mid-line neck pain.  Physical examination revealed a normal gait and cervical spine tenderness was present without muscle spasm.  Cervical spine flexion was 40 degrees and combined ROM was 180 degrees with painful motion.  There was no weakness, fatigability, discoordination or additional functional impairment following repetitive motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bundled neck and back conditions 10%, coded 5237 (lumbosacral or cervical strain), citing painful limitation of motion.  The VA rated the neck condition 10%, analogously coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing cervical spine limitation of motion.  

The panel first considered whether the neck condition remained separately unfitting, having been decoupled from the bundled spine adjudication.  The neck condition was profiled, implicated by the commander’s performance statement and judged to fail retention standards.  There was not a preponderance of evidence to show the neck condition was not reasonably justified as separately unfit.  Accordingly, the panel recommends a separate rating for the neck condition.  

The panel agreed that a 10% rating, but no higher, was justified for cervical spine limitation of flexion (greater than 30 degrees but not greater than 40 degrees), as reported on the MEB PT and VA ROM examinations.  Although the MEB PT combined ROM measurement supports a 20% rating, the panel considered this examination an outlier as the preponderance of STR and VA records only support a 10% rating.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, and no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes to support a higher rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the neck condition, coded 5237.  

Chronic Low Back Pain.  According to the STR and MEB NARSUM, the CI’s back condition began in May 2003 from the same aforementioned fall down stairs resulting in lumbar spine pain.  A lumbar MRI was positive for L3-4, L4-5, and L5-S1 disc bulges, but there was no surgical indication.  The 3 February 2004 MEB PT examination, 18 months before separation, revealed thoracolumbar spine flexion to 80 degrees (normal 90) and combined ROM of 200 degrees (normal 240).  There was evidence of painful motion.  However, the 24 January 2005 MEB PT examination, 6 months before separation, revealed thoracolumbar spine flexion of 30 degrees and combined ROM of 125 degrees.  Painful motion was not addressed.  

At the MEB NARSUM examination the CI reported chronic lumbar spine pain and utilized a cane to walk.  Physical examination revealed no bowel or bladder dysfunction, but there was non-physiologic spinal pain and tenderness.  Without a cane, the CI listed to the right with a right antalgic limp and right sided spasm.  ROM measurements and painful motion were not documented.  

During the VA C&P examination, the CI complained of chronic low back pain.  Physical examination revealed a normal gait without lumbar spine tenderness or muscle spasm.  Lumbar spine flexion was 90 degrees and combined ROM was 200 degrees with painful motion.  There was no weakness, fatigability, discoordination or additional functional impairment following repetitive motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bundled neck and back conditions 10%, coded 5237 as noted above.  The VA rated the back condition 10%, coded 5243 (IVDS), based on the C&P examination, citing lumbar spine painful or limited motion.  

The panel first considered whether the back condition remained separately unfitting, having been decoupled from the bundled spine adjudication.  The back condition was physical profiled, implicated by the commander’s performance statement and judged to fail retention standards.  There was not a preponderance of evidence to show the back condition was not reasonably justified as separately unfit.  Accordingly, the panel recommends a separate service rating for the back condition.  

The panel deliberated the probative value of the examinations in evidence.  The panel adjudged that the C&P examination was closest to separation, most detailed and best aligned with the preponderance of the evidence in the record.  Although the NARSUM examination potentially supported a 20% rating for “muscle spasm or guarding severe enough to result in an abnormal gait” it was further from separation, less complete, and less representative of the evidence in the remainder of the record.  The panel agreed that a 10% rating, but no higher, was justified for thoracolumbar spine limitation of combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the VA ROM examination most proximate to separation.  Although the MEB PT flexion ROM measurement supports a 40% rating, the panel considered this examination an outlier as the preponderance of STR and VA records only support a 10% rating.  There was no thoracolumbar spine muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, and no documentation of IVDS with incapacitating episodes to support a higher rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the back condition, coded 5237.  

Chronic Left Shoulder Pain.  According to the STR and MEB NARSUM, the right-handed CI’s left shoulder condition began in May 2003 from the same aforementioned fall down stairs resulting in left shoulder pain.  The CI underwent left shoulder surgeries in April and September 2004 (rotator cuff, SLAP lesion, Mumford repair, distal clavicle resection, and subsequent debridement and capsular release).  PT examinations on 3 November and 29 December 2004, recorded left shoulder flexion to 165 degrees and abductions of 140 and 135 degrees, respectively, with painful motion.  The 24 January 2005 MEB PT examination, 6 months before separation, revealed left shoulder flexion to 135 degrees and abduction to 115 degrees.  Painful motion was not addressed.  

During the 1 February 2005 MEB NARSUM addendum the CI reported severe left shoulder pain.  Physical examination revealed left shoulder flexion to 120 degrees and abduction to 95 degrees.  Painful motion was not addressed.  At the 23 February 2005 MEB NARSUM the CI reported chronic left shoulder pain.  Physical examination revealed “painful and limited [left shoulder] ROM” and poor strength.  Orthopedic examinations on 6 and 10 May 2005, approximately 2 months before separation, showed flexion to 90 and 120 degrees with painful motion, respectively.  Abduction was not addressed.  

The C&P examination noted complaints of daily bilateral shoulder pain and give-way following repetitive shoulder activities.  Physical examination revealed left shoulder flexion to 130 degrees and abduction to 90 degrees with painful motion.  There was no weakness, fatigability or discoordination following repetitive stress testing and resistance in either shoulder region.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left shoulder condition 0%, analogously coded 5003 (arthritis, degenerative), citing an unremarkable physical examination and abduction to 160 degrees.  The VA rated the left shoulder condition 20%, coded 5201 (arm, limitation of motion), based on the C&P examination, citing limitation of 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), and the preponderance of STR and VA examinations demonstrated motion above this level.  However, panel members agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion), as recorded on the PT, MEB NARSUM, orthopedic and VA ROM examinations.  There was no malunion or recurrent dislocation of the humerus with deformity or subluxations to justify a higher rating under the 5202 code (humerus, other impairment of) and no loose movement to justify a higher rating under the 5203 code (clavicle or scapula, impairment).  Given the rotator cuff repair and clavicular resection, analogous coding to 5203 was warranted.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the left shoulder condition, coded 5099-5203.  

BOARD FINDINGS:  In the matter of the bundled neck and back conditions, the panel recommends that each condition be separately adjudicated as follows:  an unfitting neck condition coded 5237 and rated 10%, and an unfitting back condition, coded 5237 and rated 10%, both IAW VASRD §4.71a.  In the matter of the left shoulder condition, the panel recommends a disability rating of 10%, coded 5099-5203 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, 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	5237	10%	
Chronic Lower Back Pain	5237	10%	
Chronic Left Shoulder Pain	5099-5203	10%	
COMBINED	30%	

The following documentary evidence was considered:  

Exhibit A.  DD Form 294, dated 20170301, w/atchs  
Exhibit B.  Service Treatment Record  
Exhibit C.  Department of Veterans Affairs Record  

AR20190007893, 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 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.

Sincerely,					       

Enclosure