RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXX	CASE: PD-2017-03949
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20070722

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “lumbar spondylosis,” “chronic neck pain,” and chronic pain, right shoulder,” rated 10%, 0% and 0%, respectively, with a combined  disability rating of 10%.

CI CONTENTION: Request review of all conditions. 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 - 20070612	VARD - 20071210	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Lumbar Spondylosis	5299-5237	10%	Traumatic Arthritis, Thoracolumbar Spine	5242	20%	

20070915	
Chronic Neck Pain	5299-5237	0%	Herniated Discs, Cervical Spine	5242	20%		
Chronic Pain, Right Shoulder	5099-5003	0%	Traumatic Arthritis, Right Shoulder	5201	10%		
Post-Traumatic Stress Disorder (PTSD)	Not Unfitting	PTSD	9411	30%	20081117	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: 70%	

ANALYSIS SUMMARY:

Lumbar Spondylosis. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in January 2005 when he was serving as a Humvee turret gunner and his vehicle struck another vehicle while deployed to Iraq. An MRI in

June 2006 showed mild L4-5 and L5-S1 disc bulges. There was no surgical indication. Orthopedic physical examinations in February and March 2007 showed normal gait, stance and thoracolumbar range of motion (ROM). A physical therapy (PT) examination on 16 April 2007, 3 months prior to separation, recorded repetitive thoracolumbar flexion to 80 degrees (normal 90) and combined ROM of 220 (normal 240). At the 23 May 2007 MEB NARSUM, 2 months prior to separation, the CI reported low back pain (LBP). Physical examination revealed a normal gait and the ability to heel, toe, and tandem walk. There was low back tenderness and spasm without guarding. Straight leg raise testing for radiculopathy was negative. Low back ROM was “full” with painful motion.

At the 15 September 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported LBP that radiated to the bilateral hips. He reported it affected his ability to walk because he had difficulty standing up straight due to aggravation of pain. He denied incapacitating episodes. Physical examination revealed the CI walked slightly hunched over, there was tenderness of the mid-thoracic area, but muscle spasm was absent. Thoracolumbar spine flexion was 60 degrees and combined ROM was 165 degrees with painful motion. There was no ROM loss following repetitive use. Bilateral lower extremity motor function, deep tendon reflexes (DTR) and sensation were intact. Thoracic spine X-rays showed mild degenerative changes and lumbar spine X-rays were normal.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the low back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing localized tenderness. The VA rated the low back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing limitation of flexion. 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 PT examination. Alternatively, a 10% rating is supported by the tenderness noted during the MEB NARSUM examination. The panel concluded the VA ROM examination was an outlier as the preponderance of STR evidence did not support a 20% ROM rating. 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 evidence 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 there was insufficient cause to recommend a change in the PEB adjudication for the low back condition.

Chronic Neck Pain. According to the STR and MEB NARSUM, the CI’s neck condition began in January 2005 during the aforementioned motor vehicle accident (MVA). An MRI in June 2006 showed degenerative disc disease with a mild C5-6 bulging disk and small left C6-7 herniated disk, without central spinal canal or neuroforminal (area through which the spinal nerves exit) narrowing.  Electrodiagnostic  studies performed  on  31  July  2006 were  normal.  During the  25 April 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported neck pain with numbness and tingling in the right arm. Neck ROM was “grossly normal” with painful motion. Repeat cervical spine MRI on 10 May 2007 was not significantly changed from the prior MRI. A PT examination on 21 May 2007, 2 months prior to separation, recorded repetitive-cervical flexion to 45 degrees (normal) and combined ROM was 245 (normal 340) with painful motion. The MEB NARSUM physical examination 2 days later showed a normal gait. There was “full” cervical ROM, without cervical tenderness, muscle spasm, guarding, or abnormal spinal curvature.

At the C&P examination the CI reported neck pain, stiffness and popping sensation without any radiating pain. He reported difficulty extending his neck due to discomfort. He denied incapacitating episodes and reported he had not received any treatment for the neck condition. Physical examination revealed the CI kept his neck in a slightly flexed position.       There was no

cervical spinal tenderness or spasm. Cervical spine flexion was 20 degrees and combined ROM was 130 degrees with painful motion. Upper extremities motor function, DTR and sensation were normal.  Cervical spine X-rays were normal.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the neck condition 0%, analogously coded 5299-5237 (cervical strain), citing cervical ROM limited by pain without tenderness or spasm. The VA rated the neck condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing flexion limited to 20 degrees.

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 40 degrees) and combined ROM (greater than 170 degrees but not greater than 335 degrees), as reported on the PT examination. Alternatively, a 10% rating is supported by painful motion noted during the MEB DD Form 2808 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. The panel agreed the VA ROM examination was an outlier as the preponderance of STR evidence did not support a 20% rating based on ROM. 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 evidence 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 recommends a disability rating of 10% for the neck condition, coded 5299- 5237.

Chronic Pain, Right Shoulder. According to the STR and MEB NARSUM, the CI’s right shoulder condition began in January 2005 during the aforementioned MVA. The CI underwent right shoulder surgery with repair of a labral tear in November 2006. The orthopedic examination on 16 March 2007, 4 months prior to separation, recorded normal right shoulder ROM without painful motion or instability noted. A PT examination on 16 April 2007 noted repetitive-right shoulder flexion to 145 degrees (normal 180) and abduction was 110 degrees (normal 180) with painful motion. During the MEB NARSUM the CI reported right shoulder pain. Physical examination showed no right shoulder tenderness. The right arm strength was 5/5 and sensation was grossly normal. The examiner noted there was shoulder ROM which was “restriction due to pain.”

At the C&P examination, the CI reported constant right shoulder pain and stiffness with extreme limited mobility and weakness, and the inability to perform overhead activities. Physical examination revealed right shoulder flexion to 140 degrees and abduction was 100 degrees with painful motion. The CI was not able to externally or internally rotate the shoulder due to significant end of range pain. There was no additional ROM loss following repetitive use. Impingement testing was negative, and stability and strength testing were limited due to pain. Right shoulder X-rays showed mild degenerative changes of the glenohumeral joint and the acromioclavicular joint.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right shoulder condition 10%, analogously coded 5099-5003 (degenerative arthritis), citing the US Army Physical Disability Agency pain policy. The VA rated the right shoulder condition 10%, coded 5201 (arm, limitation of motion), based on the C&P examination, citing painful motion due to arthritis and surgery. The panel agreed that the VASRD §4.71a threshold for rating ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the STR and VA ROM examinations demonstrated motion above this level.       However, there was satisfactory evidence of painful motion (VASRD
§4.59), as recorded on all examinations proximate to separation to support a 10% rating. There was no fibrous union or nonunion of the humerus (5202), or clavicle or scapula impairment

(5203) 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 shoulder condition, coded 5099-5003.

Contended PEB Condition: PTSD. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The contended PTSD condition was not profiled or implicated in the commander’s statement, and did not fail retention standards. There was no performance-based evidence from the record that the condition 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 the contended PTSD condition, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the lumbar spondylosis condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the neck condition, the panel recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a. In the matter of the right shoulder condition, the panel recommends a disability rating of 10%, coded 5299- 5201 IAW VASRD §4.71a. In the matter of the contended PTSD condition, 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	
Lumbar Spondylosis	5299-5237	10%	
Chronic Neck Pain	5299-5237	10%	
Chronic Pain, Right Shoulder	5099-5003	10%	
	COMBINED	30%	

AR20190010065, XXXXXXXXXXXXXXXXXXX. 

Dear XXXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent 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 permanent 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), XXXXXXXXXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.