RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxx 	CASE:  PD-2017-02756
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20081223

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Military Policeman, medically separated for “degenerative arthritis of the lumbar spine” and “degenerative arthritis of the right (dominant) shoulder,” rated 10% each, with a combined disability rating of 20%.   

CI CONTENTION:  The CI requested review of all conditions and review of an additional condition not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20081208	VARD - 20090605	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis of the Lumbar Spine	5242	10%	Degenerative Joint Disease, Lumbar Spine	5243	10%	20090210	
Degenerative Arthritis of the Right (Dominant) Shoulder	5003	10%	Degenerative Joint Disease, Right Shoulder	5201-5010	10%	20090210	
Cervical Spondylosis	Not Unfitting 
	Cervical Spondylosis	5243	10%	20090210	
Herniated Intervertebral Disc-Cervical	Not Unfitting					
Gastroesophageal Reflux	Not Unfitting	Gastroesophageal Reflux Disease	7399-7346	0%	20090210	
Hallux Rigidus Right	Not Unfitting	Degenerative Joint Disease, First Distal Interphalangeal Joint	5281	0%	20090210	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Degenerative Arthritis of the Lumbar Spine.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in April 2005 after a night jump of approximately 20 feet from a Blackhawk helicopter.  The CI landed on his feet and immediately noted a “jarring” sensation with subsequent muscle spasm in his back.  The dog working with the CI landed on the CI’s neck and shoulders causing a “powerful burning sensation in his upper back and shoulders.”  A lumbar spine MRI showed mild central disc protrusion at L4-5, without nerve root compression, and degenerative changes.  Surgery was not indicated.

The 19 September 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, showed right positive straight leg raise (radicular symptoms).  Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 23 September 2008 showed flexion of 90 degrees (normal) and combined ROM of 215 degrees (normal 240) after repetition.  The 6 November 2008 MEB NARSUM examination, 2 months prior to separation, noted complaints of constant lower back pain exacerbated by activity.  Pain flares occurred with extensive sitting, standing, lifting or rotational movements.  Physical examination showed tenderness and spasms bilaterally in the surrounding musculature, right greater than left, with guarding, but heel-toe walk was normal and there was no evidence of abnormal spinal contour.  Lower extremity strength and reflexes were normal.  Straight leg raise elicited nonspecific pain in the lumbar spine bilaterally.  

At the 10 February 2009 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported back pain without incapacitating episodes in the past 12 months.  Physical examination showed normal gait and full ROM.  There was no muscle spasm, guarding or tenderness.  The CI was “able to nearly touch the floor [normal flexion].”  There was no pain on motion.  Lower extremity strength and reflexes were normal. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5242 (degenerative arthritis of the spine) citing forward flexion of 112 degrees and no mention of an abnormal gait due to spasm or guarding.  The VA also rated the back condition 10%, coded 5243 (intervertebral disc syndrome) based on the C&P examination, citing painful or limited motion of a group of minor joints.  The panel agreed that a 10% rating, but no higher, was justified for combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the MEB PT ROM examination.  Although there was muscle spasm and guarding documented, it was not 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 evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  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 back condition.  

Degenerative Arthritis of the Right (Dominant) Shoulder.  According to the STR and MEB NARSUM, the right-handed CI’s right shoulder condition began in February 2007 while climbing out of a foxhole.  The CI heard a “pop” in his shoulder with subsequent inability to lift his right arm.  Shoulder X-rays showed no abnormalities.  He did well until July 2008 when he fell off his couch at home and re-injured his right shoulder.  Shoulder X-rays revealed degenerative changes of the shoulder joint and a permanent profile was issued.

The MEB examination revealed decreased ROM.  Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 23 September 2008 showed flexion of 156 degrees (normal 180) and abduction of 152 degrees (normal 180).  The therapist noted pain with lifting the arm or reaching.  During the MEB NARSUM examination the CI complained of difficulty with weight on the right shoulder or with carrying loads of any sort using the right arm.  Physical examination showed tenderness of the acromioclavicular area.  Raising the arm laterally elicited pain.  Pain was also noted with holding the arm in an abducted position against force.  At the VA C&P examination the CI reported right shoulder pain.  Physical examination showed full ROM with pain produced at end of internal rotation.  There was no muscle spasm or atrophy.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition 10%, coded 5003 (degenerative arthritis) citing limitation of motion of a single major joint.  The VA also rated the right shoulder condition 10%, dual coded 5201-5010 (arm limitation of motion due to traumatic arthritis, based on the C&P examination, citing painful or limited motion of a major joint.  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 insufficient 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).  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 right shoulder condition.  

Contended PEB Conditions:  Herniated Intervertebral Disc-Cervical, Cervical Spondylosis, Gastroesophageal Reflux and Hallux Rigidus Right.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  Although the neck condition (herniated intervertebral cervical disc and cervical spondylosis) was profiled and judged to fail retention standards, the CI did not seek treatment for neck pain after he returned from deployment.  The NARSUM examiner noted the neck condition “was not a significant concern for him” and the commander’s statement did not implicate the neck condition as impairing the CI’s successful duty performance.  The panel concluded there was not a preponderance of evidence to support recommending the neck condition as a separately unfitting condition at separation.  In regards to the gastroesophageal reflux and hallux rigidus, the panel noted that neither condition was profiled, implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that any 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 any of the contended conditions, so no additional disability ratings are recommended. 

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71, the panel recommends no change in the PEB adjudication.  In the matter of the right shoulder condition and IAW VASRD §4.71, the panel recommends no change in the PEB adjudication.  In the matter of the neck condition, hallux rigidus and gastroesophageal reflux, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170310, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20190009380,  

Dear XXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.