RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX		CASE: PD-2017-06119 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20060501

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Military Policeman, medically separated for “chronic back pain” and “chronic pain, right (dominant) elbow and shoulder,” rated 10% each, with a disability rating of 20%.

CI CONTENTION:  Review 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 - 20060308	VARD - 20060811	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5241	10%	Anterior Lumbar Interbody Fusion	5243-5241	10%	20051216	
Chronic Pain, Right Elbow and Shoulder	5099-5003	10%	Right Shoulder Strain	5099-5024	10%	20051216	
			Epicondylitis, Right Elbow	5099-5024	0%	20051216	
Hypertension	Not Unfitting	Hypertension	7101	0%	20051216	
Hearing Loss	Not Unfitting	Hearing Loss	6100	NSC	20051207	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 50%	

ANALYSIS SUMMARY:

Chronic Back Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent spinal fusion at L5-S1 in June 2005. During the 19 October 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, physical examination showed decreased range of motion (ROM) of the lumbar spine.     Straight

leg raise testing, to elicit radicular symptoms, was positive. The MEB NARSUM examination, the same day, noted improved but continued back pain with some functional limitations. Physical examination showed normal gait, lower extremity strength and reflexes, and the CI could heel and toe walk, but there was tenderness.  The ROM study showed flexion of 40 degrees  (normal
90) and combined ROM of 170 degrees (normal 240).

At the 16 December 2005 VA Compensation and Pension (C&P) examination, 5 months before separation, the CI reported constant low back pain that radiated to the hips, and at the time of pain he required bed rest. He also reported incapacitating episodes two times per month for 50 days, and two lost workdays in the past year due to the back condition Physical examination showed normal gait and posture, and no radiating pain on movement. There was tenderness, but no muscle spasm, and SLR testing was negative bilaterally. The thoracolumbar ROM study showed flexion of 75 degrees and combined ROM of 175 degrees with pain at the end-range of motion. The examiner indicated that joint function was additionally limited by pain, fatigue, weakness, lack of endurance and pain, but the additional loss of motion could not be determined without resorting to speculation. Lumbar spine X-rays showed degenerative arthritis and post- operative changes

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, coded 5241 (spinal fusion) citing painful limitation of motion with tenderness. The VA also rated the back condition 10%, dual coded 5243-5241 (intervertebral disc syndrome (IVDS) and spinal fusion), 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) or for combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the pre-separation VA examination, the most proximate examination to separation. 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 IVDS with incapacitating episodes which would provide for a higher rating under that formula. Although the CI reported periods of incapacitation at the VA examination, there was no corroborating evidence in the record of an incapacitating episode requiring physician prescribed bed rest, and convalescence from back surgery may not be considered a period of incapacitation. 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.

Chronic Pain, Right Elbow and Shoulder. The PEB combined the right elbow and right shoulder conditions under a single disability rating, coded analogously to 5003 and rated 10% IAW the US Army Physical Disability Agency (USAPDA) 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. The evidence for the right shoulder and right elbow conditions is presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Right Shoulder. According to the STR and MEB NARSUM, the right-handed CI’s right shoulder condition began in 2003 after falling while playing football. An MRI indicated degenerative changes of the rotator cuff (supraspinatus tendon), but surgery was not recommended. The MEB examination showed slightly decreased internal rotation. At the C&P examination, the CI reported right shoulder pain and decreased ROM, but the pain did not cause incapacitation and had not resulted in any lost work time. The examiner noted there was no functional impairment resulting from the shoulder condition. Physical examination showed the right shoulder appearance was normal. Shoulder ROM was flexion of 150 (normal 180) and abduction of 150 degrees (normal 180) with pain at end-range of motion. The right shoulder function was additionally limited by pain, fatigue, weakness, lack of endurance, but the additional loss of motion could not be determined without resorting to speculation.  X-rays were normal.

The 3 January 2006 MEB NARSUM addendum, 4 months prior to separation, noted complaints of decreased ROM of the right shoulder. Physical examination showed no tenderness. Right shoulder ROM testing showed flexion of 150 degrees and abduction of 130 degrees. The examiner determined the CI fell below retention standards due to the right shoulder condition. Although the right shoulder was profiled with physical limitations of no lifting (more than 15 pounds), rucking, upper body weight training, sit-ups or push-ups, the commander’s statement only implicated the back condition as impairing duty performance.

The panel first considered if the right shoulder condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The right shoulder was profiled and determined to fail retention standards. The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled shoulder condition was reasonably considered separately unfitting. The panel then considered its rating recommendation for the unfitting right shoulder condition at the time of separation.

The panel directed attention to its rating recommendation based on the above evidence. The VA rated the right shoulder condition 10%, analogously coded 5099-5024 (tenosynovitis), based on the C&P examination, citing, painful motion with consideration of Deluca (functional loss). 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 for painful motion with functional loss supporting a 10% rating based on §4.59, §4.40 and §4.45. 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 (impairment of the clavicle or scapula).

Right Elbow. According to the STR and MEB NARSUM, the right-handed CI’s right elbow condition began insidiously in November 2004. X-rays showed a small spur at the posterior olecranon, but were otherwise unremarkable. The CI was diagnosed and treated for lateral epicondylitis. Surgery was not recommended. The MEB examination noted right elbow pain since January 2005. The CI was diagnosed with cubital tunnel syndrome and lateral epicondylitis. The MEB NARSUM examination, the same day, noted complaints of right elbow pain. Physical examination showed tenderness of the lateral elbow. The ROM study showed elbow flexion of 135 degrees (normal 145) and extension was 0 degrees (normal) with forearm supination of 65 degrees and pronation of 70 degrees. The examiner indicated the right elbow condition impaired the CI’s duty performance and fell below retention standards. Electrodiagnostic studies of the right upper extremity performed on 28 October 2005 were normal.

At the C&P examination, the CI reported constant pain and decreased strength of the right arm. The CI denied any incapacitation or lost work time due to the elbow pain. He used an arm brace

and was in occupational therapy. Physical examination showed a normal appearing elbow. The right elbow ROM study showed flexion of 145 degrees, extension of 0 degrees, supination of 85 degrees and pronation of 80 degrees. The joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Although the right elbow was profiled with physical limitations of no lifting (more than 15 pounds), rucking, upper body weight training, sit-ups or push-ups, the commander’s statement only implicated the back condition as impairing duty performance.

The panel first considered if the right elbow condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The right elbow was profiled and determined to fail retention standards. The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled elbow condition was reasonably considered separately unfitting. The panel then considered its rating recommendation for the unfitting elbow condition at the time of separation.

The panel directed attention to its rating recommendation based on the above evidence. The VA rated the elbow condition 0%, analogously coded 5099-5024 (tenosynovitis), based on the C&P examination, citing no evidence of painful or limited motion. There was no evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45). There likewise was no limitation of motion which attained a 10% rating under the diagnostic codes for limitation of elbow motion (5206, 5207, 5208) or forearm motion (5213). The panel considered other VASRD elbow and forearm codes, but all were less applicable. No additional functional limitation was evidenced by the examinations. Therefore the panel concluded there was not sufficient evidence to support a rating higher than 0% under any applicable VASRD code.

The panel noted that after unbundling the right shoulder and elbow conditions the panel’s rating recommendation was the same combined 10% rating as that of the PEB. Since there is no rating benefit to the CI, no change to the PEB’s combined rating is recommended. The panel noted that the PEB’s reliance on the USAPDA pain policy was not detrimental to arriving at the highest rating and therefore no change to the PEB’s coding choice is recommended. 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 combined adjudication for the right shoulder and elbow condition.

Contended PEB Conditions: Hypertension and Hearing Loss. The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting. Neither of the conditions were profiled, implicated in the commander’s statement or judged to fail retention standards. There was no performance-based evidence from the record that any of the 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 either of the contended conditions, so no additional disability ratings are recommended.

BOARD FINDINGS: In the matter of the chronic back pain condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the chronic pain, right (dominant) elbow and shoulder condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication. In the matter of the contended hypertension and hearing loss conditions, the panel majority 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.

PD-2017-06119

XXXXXXXXXXXXXX

Dear XXXXXXXXXXXX

	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.

PD-2017-06119