RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04932
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20080124

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Health Care Specialist, medically separated for “chronic thoracolumbar back pain” and “bilateral shoulder pain and subluxation,” rated 10% and 0%, respectively, with a combined disability rating of 10%. 

CI CONTENTION:  “These numbers were so low and did not reflect true conditions.  MRI’s were requested and denied. Now I have had surgery, breathing is horrible, Anxiety was not provided.  No mental health screening.”  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 - 20071210	VARD – 20080430	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracolumbar Back Pain	5299-5237	10%	Lumbosacral Strain	5237	0%	20080318	
Bilateral Shoulder Pain and Subluxation	5099-5003	0%	Tendinitis, Left Shoulder	5024-5203	10%	20080318	
			Tendinitis, Right Shoulder	5024-5203	10%	20080318	
Asthma 	Not Unfitting	Asthma	6602	10%	20080318	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Thoracolumbar Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back pain was first noticed during sit-up maneuvers during Initial Entry Training.  The 30 August 2007 orthopedic MEB examination noted complaints of years of back pain and stiffness.  Thoracolumbar spine motion was noted to be normal in all planes, but without numerical measurements.  The spine had a normal appearance.  Gait was normal.  During the 6 September 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported back pain with shooting pain that caused tingling in the left leg.  “Normal” was checked under the ‘Clinical Evaluation’ section for spine and other musculoskeletal.  

Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 19 October 2007, 3 months prior to separation, indicated forward flexion of 85 degrees (normal 90) and combined ROM of 220 degrees (normal 240), after repetition, and was associated with painful motion.  The 30 October 2007 MEB NARSUM examination, 3 months prior to separation, noted continued complaints of back pain.  The CI’s PE revealed tenderness about the thoracic and lumbar spine.  Her gait was normal.  She was able to bend forward from a seated position to remove her boots and stockings and replace them without evidence of pain.  

At the 18 March 2008 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported continued back pain.  Her PE was clinically detailed and completely normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition at 10%, analogously coded 5299-5237 (lumbar spine strain), citing tenderness and pain with limited motion.  The VA rated the back condition at 0%, coded 5237, based on the C&P examination 2 months after separation, citing forward flexion of 90 degrees and combined ROM greater than 235 degrees with no pain or objective evidence of functional loss.    

The panel extensively deliberated as to the rating impairment for the back condition while acknowledging the vacillating physical findings between 5 months pre-separation and 2 months post-separation.  Although the pre-separation and near separation physical examinations noted ROM parameters that would support a 10% impairment rating, the panel concluded that the examiner’s comment of the CI’s ability to “…bend forward from a seated position…” remained inconsistent with ROM measurements taken 11 days earlier.  Therefore, in conjunction with normal physical findings 2 months post-separation, all members agreed that the unfitting back condition would not support a positive impairment rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that the back condition be rated at 0% analogously coded as 5299-5237.  

Bilateral Shoulder Pain.  The PEB combined the right and left shoulder conditions under a single disability rating, coded analogously to 5003 and rated 0% with application of the US Army Physical Disability Agency pain policy.  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.  The panel noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  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.  

According to the STR and MEB NARSUM, the CI’s left shoulder condition reportedly began in 2004.  The CI noticed pain in her left shoulder after picking up her rucksack and then while doing push-ups she felt her shoulder popping in and out.  The right shoulder started to display some of the same characteristics as the left shoulder in 2006, but these symptoms were intermittent.  The initial clinic visit involving her shoulder was dated 3 October 2006 whereby she reported that for the previous 2 months her shoulder would slide backwards out of place and cause pain.  She denied shoulder trauma.  Only the left shoulder was examined and there was full ROM and no inferior or anterior laxity, but there was a level of posterior subluxation with post drawer testing.  

At the 30 August 2007 orthopedic MEB examination, 6 months prior to separation, the CI endorsed bilateral shoulder pain and the ability to voluntarily dislocate the left shoulder.  She denied any history of trauma to either shoulder.  On PE there was multidirectional instability of the shoulders.  There was no edema, erythema or surrounding muscle atrophy.  “Motion of the shoulders was normal.”  X-rays of both shoulders was reported as being “normal.”  

At the 19 October 2007 MEB PT ROM examination, 3 months prior to separation, the left shoulder ROM following repetitive movement showed forward flexion to 165 degrees (normal 180) and abduction to 170 degrees (normal 180).  The dominant right shoulder ROM following repetitive movement showed flexion to 165 degrees and abduction to 150 degrees.  Painful motion was documented.  At the 30 October 2007 MEB NARSUM examination, 3 months prior to separation, the CI complained of bilateral shoulder pain. The examiner noted that the CI was able to sublux both shoulders, but it was easier to demonstrate such findings on the left.  The examiner referred to the PT ROM examination above.  

At the 18 March 2008 VA Compensation and Pension (C&P) evaluation, 2 months after separation, the CI reported bilateral shoulder pain and instability.  Her PE did not reveal any local swelling, effusion, tenderness or laxity.  ROM measurements revealed full flexion and abduction without pain.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the right and left shoulder conditions and applied a single 0% rating (coded 5099-5003).  The VA rated the left and right shoulder conditions 10% each, both coded 5024-5203 (tenosynovitis-clavicle or scapula impairment), based upon the C&P examination, citing mild malunion of the supporting structures of each shoulder with no evidence of loss of motion or functional loss.
     
In this case, both shoulders were considered to fail retention standards, both were implicated by the NARSUM and the commander’s statement and both were profiled.  The panel concluded that there was not a preponderance of evidence in the STR which overcame the panel’s presumption that the bundled right and left shoulder conditions were reasonably considered separately unfitting.  The panel then considered its rating recommendation for each unfitting shoulder.

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) as demonstrated by PT prior to separation.  There was no malunion or recurrent dislocation of the humerus to justify a rating under the 5202 code and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under code 5203.  After due deliberation, and considering all of the evidence, the panel recommends a disability rating of 10% for the right shoulder condition and 10% for the left shoulder condition, both coded 5099-5003.

Contended PEB Condition:  Asthma.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was profiled, implicated in the commander’s statement and determined by the MEB to fail retention standards.  The CI required hospitalization in April 2007, 10 months prior to separation, for 5 days and was treated with oral corticosteroids, inhaled steroids as well as Singulair (oral indirect-acting bronchodilator) and albuterol (inhalational bronchodilator).  

On 16 August 2007, 5 months prior to separation, pulmonary function tests (PFTs) showed an FEV-1 of 110% of predicted and an FEV-1/FVC of 84%.  A methacholine challenge test was “strongly positive” indicating a diagnosis of asthma.  The CI reported taking Advair (inhaled anti-inflammatory).  A medication profile showed albuterol was filled on 16 November 2007 and Singulair and Advair in September 2007.

At an internal medicine clinic visit on 24 September 2007, 3 months prior to separation, the examiner noted the CI had moderately severe, persistent asthma, which was reasonably well controlled on standard treatment, “but inadvertent exposure to known triggers will no doubt bring about an attack that would require burst therapy with prednisone.”  At the 18 March 2008 VA C&P examination 2 months after separation, the CI reported taking Singular, Serevent (inhalational bronchodilator) and Flovent (inhalational anti-inflammatory).

Panel members first deliberated if the asthma condition would support criteria as being a separate unfitting condition.  The panel majority concluded the preponderance of evidence showed the asthma condition, standing alone, was separately unfitting for continued military service (and thus eligible for a separate impairment rating) as evidenced by frequent visits to a medical provider, long-standing use of medications, and the level of exposure sensitivity to respiratory triggers as described by the internal medicine examiner.  A VASRD 30% impairment rating stipulates “FEV-1 of 56 to 70 percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.”  Panel members considered that the examinations in evidence reported a current prescription and use of daily bronchodilators. Inhaled anti-inflammatories were also prescribed.  The panel majority agreed that the VASRD §4.97 threshold for a 30% rating was reasonably satisfied in this case on the basis of inhalational anti-inflammatory and daily bronchodilator medication use.  A 60% rating was not justified in the absence of at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic corticosteroids.  After due deliberation, the panel majority agreed the preponderance of the evidence with regard to the functional impairment of the asthma condition favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 6602 and meets the VASRD §4.97 criteria for a 30% rating.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the panel recommends a disability rating of 0%, coded 5299-5237.  In the matter of the bilateral shoulder condition, the panel recommends that each joint be separately adjudicated as follows: an unfitting left shoulder condition, coded 5099-5003 and rated 10% and an unfitting right shoulder condition, coded 5099-5003 and rated 10%, both IAW VASRD §4.71a.  In the matter of the contended asthma condition, the panel majority agrees that it was unfitting and recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  

The panel majority 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 as of the date of the prior medical separation: 

CONDITION	VASRD CODE	PERMANENT RATING	
Thoracolumbar Back Pain	5299-5237	0%	
Right Shoulder Pain	5099-5003	10%	
Left Shoulder Pain	5099-5003	10%	
Asthma	6602	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170515, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

MINORITY OPINION:  The minority dissent with the majority recommendation regarding the asthma condition is based on the fitness evidence from the STR.  The most probative fitness evidence is the commander’s statement and the physical profile.  The asthma condition was named in each, but in the minority member’s opinion, it was not specifically implicated by either, and both were equivocal as discussed below.  

The commander in his statement listed the conditions verbatim from the profile (bilateral shoulder instability, asthma, lower and upper back), saying they prevented the CI from meeting her MOS lift requirements and doing physical training.  The asthma condition was listed but was not specifically implicated.  In fact, the PEB determined that the persistent back pain and profile had prevented training for the Army physical fitness (APFT), and shoulder pain had prevented lifting or carrying in her MOS.  Therefore it is reasonable to attribute those unfitting limitations to the unfitting bilateral shoulder instability, and lower and upper back pain.    

The commander also noted the CI could not meet physical fitness standards or perform her duties specific to her job due to her P3 profile, which seemed to implicate the asthma.  But in this statement the commander overlooked the U3 and L3 portions of the profile which were directly attributable to the shoulders and back conditions, and would have also clearly impacted her ability to meet physical fitness standards as the PEB mentioned above.  The minority member consequently placed less probative value on these statements.    

In the final physical profile there were no limitations specifically attributed to asthma over the other unfitting conditions.  She was unable to do the Army physical fitness test or alternate, but this could reasonably be attributed to the unfitting back and/or shoulder conditions.  The profile listed no restrictions on the wearing of the protective mask and all chemical defense equipment, and she was able to walk, bike or swim at own pace and distance as well as conduct lower body weight training.  The PEB specifically mentioned the CI’s asthma was well controlled since starting preventive medications, she was able to wear protective mask and pulmonary function tests were normalized on preventive medications.  

The minority member concedes that the asthma condition could have been unfitting, but the PDBR requires a preponderance of evidence to overturn the PEB’s not unfitting adjudication of the asthma condition.  The minority offers no dissent with the panel recommendations regarding the back and bilateral shoulder conditions; however the minority member did not find a preponderance of evidence to overturn the PEB’s adjudication that the asthma was not unfitting.  

Consistent with the DoDI 6040.44 standard of recommendations that are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that the CI’s discharge with severance pay be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Thoracolumbar Back Pain	5299-5237	0%	
Right Shoulder Pain	5099-5003	10%	
Left Shoulder Pain	5099-5003	10%	
Asthma	6602	Not Unfitting	
COMBINED	20%	

AR20180006734, 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), XXXXXXXXXXXXXXXXXX.

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