RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200977 SEPARATION DATE: 20011025 BOARD DATE: 20120306 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC / E-3 (88M/Truck driver), medically separated for chronic neck, shoulder and back pain, posttraumatic. The chronic neck, shoulder, and back pain condition began when he suffered neck, shoulder, and back pain after an accident in which a trailer hit his HUMVEE in Germany in July of 2000 (and preceded by a 1998 shoulder injury). Despite prescriptions, physical therapy, trigger point injections at the back of his neck and his shoulders and profiling, his symptoms continued. In addition, the CI continued to experience pain from a fractured ankle/fibula in 1996 (falling on a trampoline) and in both knees. These conditions could not be adequately rehabilitated with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3 profile, and referred for a Medical Evaluation Board (MEB). Degenerative joint disease (DJD), both knees and old fracture left ankle conditions, identified in the rating chart below, were also forwarded by the MEB. The Physical Evaluation Board (PEB) adjudicated the chronic neck, shoulder, and back pain, posttraumatic condition as unfitting, rated 20%, with the cited application of the US Army Physical Disability Agency (USAPDA) pain policy. The remaining conditions were determined to be not unfitting. The CI made no appeals, and was medically separated with a 20% disability rating. CI CONTENTION: “having more pain & anxiety along with Depression.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions, specifically the chronic neck, shoulder, and back pain condition, will be reviewed in all cases. The conditions, DJD, both knees and old fracture, left ankle, as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview and, are addressed below. The depression and anxiety disorder conditions are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20010718 VA (4 ½ Mos. Post-Separation) – All Effective Date 20011026 Condition Code Rating Condition Code Rating Exam Chronic neck, shoulder and back pain, posttraumatic 5099-5003 20% Residuals, lumbar spine injury 5295 0% 20020307 Residuals, injury to right shoulder status post arthroscopic rotator cuff repair 5201 0% 20020307 Residuals, left shoulder injury with single episode of dislocation 5201 0% 20020307 Residuals, cervical spine injury 5290 0% 20020307 Degenerative joint disease, both knees Not Unfitting Residuals, left knee injury 5257 0% 20020307 Status post-operative arthroscopic medial meniscectomy, right knee 5257 0% 20020307 Old fracture left ankle conditions Not Unfitting Residuals, fracture, left ankle status post-operative open reduction 5271 10% 20020307 .No Additional MEB/PEB Entries. 0% X 1 / Not Service-Connected x 1 / 1 Deferred 20020307 Combined: 20% Combined: 10% ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board also acknowledges the CI's contention suggesting that ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service-connected by the VA). The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. Combined Chronic Neck, Shoulder, And Back Pain Condition. In July 2000, a trailer rear ended the CI’s HUMVEE. The narrative summary (NARSUM) examiner completed the MEB exam and documented the CI had suffered a concussion as well as simultaneous neck, right shoulder and back pain for which he was hospitalized for 2 days. The service treatment record (STR) and the line of duty lack corroborating evidence of hospitalization or the suffering of a concussion. The CI was subsequently treated for chronic pain of the neck, right shoulder, and back, inclusive of myofascial pain, of these areas with multiple modalities. The pain persisted after a year of conservative treatment and he was issued a permanent profile and referred to a MEB. The permanent profile identified chronic neck and shoulder pain as a P3, rather than a U3, and documented the following limitations; no overhead arm movements, no flutter kicks, no running, no jumping, no marching, no sit-ups, no push-ups, or crunches allowed. He was authorized to lift up to 10 pounds, walk, bicycle, and swim at own pace and distance. The commander’s statement documented the profile restrictions would prevent him from wearing his helmet, load bearing equipment (LBE), and firing his assigned weapon. The commander further documented that he was not driving any motor vehicle, that he sat around in the tool room just doing miscellaneous work and that he was quite limited in his physical activities because of the pain. At the MEB exam, 5 months prior to separation, the CI reported pain and stiffness in the shoulders, neck and back which was constant and moderate, affected his sleep at night, and both hands and legs would go numb often. For relief he took narcotic based pain medication two to three times a day and a non-steroidal anti-inflammatory medication once a day. The MEB physical exam demonstrated pain with ankle dorsiflexion otherwise no mention of painful motion of the neck, right shoulder or low back. The Cervical spine (C-spine) range-of-motion (ROM) was within normal limits. The right shoulder demonstrated non compensable limited ROM of flexion and abduction and the low back flexion ROM lacked 20cm from the ground while all other back ROMs were within normal limits. The C-spine magnetic resonance imaging (MRI) exam revealed no evidence of stenosis or nerve impingement and the right shoulder MRI was normal. There were no X-rays of the low back. At the VA Compensation and Pension (C&P) exam 4 months after separation, the CI reported that he had had arthroscopic rotator cuff repair of his right shoulder (no date in evidence) and that he had arthroscopic medial meniscectomy of the right knee in January 2002. He took a narcotic based pain medication for relief of pain. He reported no new additional history. The C&P physical exam specifically for the neck, right shoulder and back demonstrated a normal curvature of C-spine, functional limitation in ROM due to pain of the C-spine with forward flexion of 50 degrees (45, normal), backward extension 50 degrees (45, normal), lateral flexion 35 degrees bilaterally (45, normal), and rotation 45 degrees bilaterally (80, normal), for a combined limited ROM of 250 degrees (340 degrees normal). X-ray revealed the vertebral heights, disc spaces and intervertebral foramina were unremarkable; some straightening of the cervical lordosis and alignment of the cervical spine was normal. The right shoulder exam demonstrated tenderness on palpation, arthroscopic marks were healed, and functional limitation in ROM due to pain with flexion of 150 degrees (180 Normal) and abduction of 160 degrees (180 Normal). X-rays revealed a normal exam. The low back exam demonstrated a normal curvature, gait, and neurologic findings of the lower extremities. There was functional limitation in ROM due to pain with 85 degrees of flexion (90 Normal). X-rays of the lumbar spine revealed vertebral heights, disc spaces, pedicles, and sacroiliac joints were unremarkable. The Board directs attention to its rating recommendation based on the above evidence. The PEB combined the chronic neck, right shoulder, and back pain as a single unfitting condition coded analogously to 5003 and rated 20%. The PEB relied on the USAPDA pain policy for not applying separately compensable VASRD codes. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting, and that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting. The Board notes the VA applied separate non compensable codes for each condition, a post separation exam which supports a worsening right shoulder condition that required surgery and that each condition demonstrated painful motion. The MEB exam prior to separation did not support painful motion nor any specific objective findings for separate pathologies of any of the conditions to include X-ray evidence for degenerative arthritis. The Board further notes the post separation X-ray evidence is also absent for degenerative arthritis for any of the conditions. Furthermore, the evidence supports the pain pathology originates from the MVA which likely resulted in a myofascial pain constellation of symptoms which is reflected as such as a P3 profile. Therefore, based on all evidence and associated conclusions just elaborated, the Board agreed with the PEB’s judgment that the constellation of conditions were unfitting and there is not a preponderance of evidence that each condition itself is separately unfitting. The PEB assigned the maximum 20% rating authorized by the USAPDA pain policy. The Board considered rating the pain disorder analogous to 5025 (fibromyalgia) and notes the 5025 code specifies “widespread pain means pain in both the left and right sides of the body that is above and below the waist…” While the subjective evidence supports this definition, the objective evidence does not. Furthermore even with consideration of the subjective evidence, the evidence meets the 10% criterion “that require continuous medication” and does not meet the 20% criterion; “that are episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time.” While this analogous coding approach best captures the specific clinical pathology of pain as the predominant symptom it does not confer a rating benefit, therefore no code change is recommended. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the combined chronic neck, shoulder, and back pain condition. Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were degenerative joint disease, knees and old fracture, left ankle. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. In March 1996 the CI fractured his left ankle which required bone grafting surgery for a nonunion in September 1996. He was casted for 3 months and thereafter received physical therapy. In November 1996 he was seen by orthopedic and had good ankle ROM and the X-rays revealed no displacement of the hardware or fracture. Since that date the STR was absent for future exams for the left ankle fracture condition. The CI complained of chronic knee pain at the time of the MEB. The evidence supported blunt right knee trauma from a fall off a horse. The knee was treated conservatively with temporary profiling and physical therapy. After 5 months, August 2000, the evidence was silent for right knee treatment. These conditions were forwarded by the MEB however, none of these conditions were profiled; nor implicated in the commander’s statement. All were reviewed by the action officer and considered by the Board. There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the any of the contended conditions and, therefore, no additional disability ratings can be recommended. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. As discussed above, PEB reliance on the USAPDA pain policy for rating combined chronic neck, shoulder, and back pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the combined chronic neck, shoulder, and back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended degenerative joint disease, knees, and old fracture, left ankle conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Chronic neck, shoulder and back pain, posttraumatic 5099-5003 20% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120625, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXX, AR20130006081 (PD201200977) I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl XXXXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)