RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201064 SEPARATION DATE: 20020104 BOARD DATE: 20130221 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (54B2H/Chemical Operations Specialist), medically separated for chronic bilateral heel pain and chronic right shoulder pain with some overhead activity. He first noticed heel pain while playing basketball in 1996 with recurrent bilateral heel swelling in the area of the Achilles tendon and calves (posterior ankle). He had surgical excision of left calcaneal Haglund's prominence in December 1999 and of right calcaneal Haglund's in March 2000. He injured his shoulder in both 1994 and 1998 weight lifting and was confirmed to have a right rotator cuff tear, but deferred surgical repair at the time. Despite improvement post heel surgery he could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB). Impingement syndrome bilateral shoulders, tendinitis bilateral elbows and mechanical low back pain (LBP) conditions, identified in the rating chart below, were also forwarded by the MEB. The Physical Evaluation Board (PEB) adjudicated the bilateral heel and right shoulder pain as one unfitting condition, rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy. The remaining conditions were determined to be not unfitting and therefore not ratable. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “Upon my separation from the US Army I was only awarded a 10% disability. However, when I filed my claim for service related disabilities with VA I was awarded 60% service connected disability.” 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 will be reviewed in all cases. The mechanical LBP condition as inferred in the application for consideration meets the criteria prescribed in DoDI 6040.44 for Board purview; and, is addressed below, in addition to a review of the ratings for the unfitting conditions of chronic bilateral heel pain and right shoulder pain. The remaining conditions (left shoulder and bilateral elbow) rated by the VA at separation and inferred on the DD Form 294 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 20010911 VA* (5 Mos. Post-Separation) – All Effective Date 20020105 Condition Code Rating Condition Code Rating Exam Chronic Bilateral Heel Pain & Chronic Right Shoulder Pain 5099-5003 10% Left Achilles Tendon (Haglund’s Deformity) 5299-5271 20%** 20020620 Right Achilles Tendon (Haglund’s Deformity) 5299-5271 20%** 20020620 Residuals Right Rotator Cuff Tear, Major 5201 30%** 20020606 Impingement Syndrome, Bilateral Shoulders Not Unfitting No VA Entry for Left Shoulder 20020606 Tendinitis Bilateral Elbows Not Unfitting No VA Entry 20020606 Mechanical Low Back Pain Not Unfitting Muscle Strain of Lumbar Spine 5295 10% 20020606 No Additional MEB/PEB Entries 0% X 2 / Not Service-Connected x 5 20020606 Combined: 10% Combined: 60% *Derived from VA Rating Decision (VARD) dated 20020813 **No change to ratings in subsequent VARDs based on follow-on C&P exams ANALYSIS SUMMARY: The PEB combined the chronic bilateral heel, and right shoulder pain conditions under a single code analogous to 5003 (degenerative arthritis) and rated 10%, relying on the USAPDA pain policy for not applying separately rated VASRD codes. IAW VASRD §4.71a, the Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved. As elaborated below separate compensable ratings for chronic bilateral heel condition, and right shoulder condition are well supported by the evidence in this case. Having determined that separate ratings are warranted, however, the Board must also 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 therefore exercises the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. The Board’s threshold for countering Disability Evaluation System (DES) fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the same DoDI 6040.44 standards referenced above. In this case, the bilateral heel and right shoulder impairments were well supported as unfitting by evidence from the narrative summary (NARSUM) and service treatment record (STR). As to the judgment as to whether each condition was independently unfitting, the commander’s statement did not specifically identify the medical conditions and only implicated the inability to lift more than 40 pounds, however the permanent profile identified all the conditions and further designated them with an upper extremity (U3) and lower extremity (L3) code. The profile limited the CI from: firing a rifle; KP, mopping or mowing grass; additionally no marching, lifting more than 20 pounds; no unlimited walking, running, bicycling or swimming; and only exercise at own pace. Separating the impairment related to the heels from the right shoulder requires undue speculation; and, there is clinical evidence of significant functional impairment referable to the bilateral heels and the right shoulder. After deliberation, all members agreed that the preponderance of the evidence demonstrated that each of the chronic pain conditions (bilateral heel and right shoulder), in isolation, would have rendered the CI incapable of continued service within his MOS; and, accordingly each merits a separate disability rating. Bilateral Heel Pain Condition. The MEB NARSUM notes the CI was referred for bilateral heel pain which interfered with his ability to fully perform military duties. The chronic bilateral heel pain was noticed after playing basketball in 1996. He complained of recurrent swelling of the distal Achilles tendons and distal calves after any strenuous activity such as jumping, running, or prolonged walking. Orthopedics evaluated and diagnosed bilateral Haglund’s prominence for which the CI opted for surgical excision, the left in December 1999 and right in March 2000. The postoperative course was without complications and he reported improvement of aching, but was unable to resume his activities due to bilateral heel/Achilles pain. He specifically noted the wearing of boots caused pain and swelling at approximately a quarter mile. Postoperative heel radiographs showed surgical changes, otherwise unremarkable. There were four range-of- motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Ankle ROM In degrees (Normal) Ortho~14 Mo. Pre-Sep MEB ~12 Mo. Pre-Sep VA C&P ~5 Mo. Post-Sep VA C&P ~2 Yrs. Post-Sep Left Right Left Right Left Right Left Right Dorsiflexion (20) Full Full Full Full < 5 < 5 20 15 Plantar Flexion (45) Full Full Full Full restricted restricted 30 25 Comment Tingling Tingling of scar; Tender Achilles; No redness; No edema; Normal toe and heel walk Pain with palpation along the incision lines Tender, walks with a limp, painful motion on the right not left §4.71a Rating 10% 10% 20% 20% 0% 10%* *Conceding painful motion §4.59 At an orthopedic consultation, the CI stated he suffered from pain with shoes on bilateral Achilles’ tendons, and painful heel on right that he was unable to run. Physical exam revealed tingling over the incision sites, no swelling, and full ROM of the ankles. The examiner diagnosed Achilles tendonitis status post (s/p) Haglund’s surgery. The MEB NARSUM physical exam noted demonstrated FROM bilaterally; a right 4 cm longitudinal well healed surgical scar posterolateral aspect of right heel and a 6cm of the left heel, the scars bilaterally demonstrated tingling locally with light tapping of scar and tenderness over the distal aspect of Achilles tendon yet no redness or edema. Post-operative heel radiographs revealed surgical changes, otherwise unremarkable. The examiner documented his present status as minimal improvement of his complaints after extensive conservative and surgical treatment for Achilles tendinitis and further that he was unable to run, jump, march, do pounding sports/exercises and walk a quarter mile in boots without pain or swelling. At the VA Compensation and Pension (C&P) exam approximately 5 months prior to separation, the CI reported pain and discomfort since surgery which was relieved with modifying his shoe wear with inserts, physical therapy (PT), a reduction in normal activity and further reported he did not take medications. Physical exam demonstrated; normal midtarsal movement yet the subtalar and ankle joints were restricted in dorsiflexion, plantar flexion, inversion, and eversion. Pain was noted along the scar line of each foot at the area of the retrocalcaneal bursa, and palpation of the Achilles tendon presented a ropy, contracted, overplay to the tendon itself. A general medical examination a few days prior identified a wide gait. The examiner opined the CI had a chronic disability, unable to ambulate without great discomfort, was symptomatic in the morning and in great discomfort by the end of the day. At a later C&P examination on 11 May 2004, 2 years after separation, the CI reported swelling two to three times per week which resulted in difficulty walking, daily pain right worse than left, and use of a cane, intermittently. He took over the counter nonsteroidal anti-inflammatory medication (Motrin) elevated his legs and iced for relief of these flare ups. He was employed as a hospital IT technician with no job restrictions that was mostly sedentary. He reported being unable to run, stand for more than 30 minutes, walk more than one mile, squat, or wear hard shoes or tube socks, or tolerate direct pressure to his Achilles tendons. Physical examination revealed extreme sensitivity over a 3 cm well healed surgical scar of the lateral surface of the right Achilles tendon, and the tendon itself was tender. The left ankle showed less tenderness over a 4 cm well healed surgical scar on the medial surface of the Achilles tendon, 5/5 motor strength. There was no diminution of either ankle upon ROM repetitions, negative Deluca observations. There was a limping gait identified. The Board directs attention to its rating recommendation based on the above evidence. It is obvious that there is a clear disparity between these examinations, with very significant implications regarding the Board's rating recommendation. The Board thus carefully deliberated its probative value assignment to these conflicting evaluations, and carefully reviewed the service file for corroborating evidence in the 12-month period prior to separation. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. If there is VA evidence after this interval, it does not mean that the VA information is disregarded, as it could be a valuable source for clinical information and opinions relevant to the Board’s evaluation. There is not a reasonable accounting for progressively impaired ROM in the fairly short interval between the MEB and VA examinations; furthermore the 24 month VA evaluation demonstrates ratable data that is more similar to the MEB exam than that of the 5 month VA exam. Therefore, based on all evidence and associated conclusions just elaborated, the Board is assigning proportionately more probative value to the MEB evaluation and to the evidence in the service treatment record proximate to the date of separation as the basis for the Board’s rating recommendations. This rating includes consideration of functional loss lAW VASRD §4.10 (functional impairment), §4.40 (functional loss), §4.45 (DeLuca), and §4.59 (painful motion). The Board first considered the PEB’s chosen analogous VASRD diagnostic code (DC) 5003 (arthritis, degenerative). The Board agreed there is no evidence of painful motion on the MEB exam to allow the minimum 10% for each joint IAW §4.59. However, the Board agreed the X-ray evidence alone in both feet meets the 10% criteria under this code for the criteria “With x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups.” The Board considered the evidence and does not find support for ankylosis or moderate limitation of motion of the ankle for a higher rating under either DC 5270 (ankylosis of ankle) or the 5271 (ankle, limitation of motion), the VA’s chosen code. The Board notes this disability is not specifically listed in the rating schedule; therefore, it should be rated analogous to a disability in which not only the functions affected, but also anatomical localization and symptoms, are closely related. Therefore, the Board considered DC 5276 (flat foot acquired) as a close analogous code for a moderate pain on manipulation and palpation of the Achilles tendon and pain with the use of the feet, bilateral or unilateral for a 10% rating; and that the condition did not approach the severe rating without marked deformities or consistent limitations on joint movement. Finally, the Board considered a scar rating IAW §4.118—Schedule of ratings–skin. By precedent, the Board does not recommend separation rating for scars unless their presence imposes a direct limitation on fitness. The Board agreed the evidence supports the ability to wear boots, albeit for quarter mile only and the MEB exam further supports a tingling non painful linear scar of the left and right heel. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board by a 2:1 vote, recommends a 10% rating for the bilateral heel pain condition. The single voter for dissent, recommended a 10% rating for both left and right heel pain conditions, but did not elect to submit a minority opinion. Chronic Right Shoulder Pain Condition. The MEB NARSUM noted that the CI injured his right shoulder when bench-pressing weights of about 300 pounds in May 1998. The shoulder gave way and became painful and he was treated conservatively with physical therapy. He continued to lift weights, but had pain on the anterior aspect of the right shoulder and his right arm felt weak. Orthopedic evaluation diagnosed right rotator cuff tear confirmed on magnetic resonance imaging (MRI) and surgical repair was offered. The CI opted to defer surgical repair pending MEB bilateral heel pain and lack of progressive symptoms since activities had been modified. There were four ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation as summarized in the chart below. Shoulder ROM In degrees (Normal) MEB ~12 Mo. Pre-Sep PT 11 Mo. Pre-Sep VA C&P ~5 Mo. Post-Sep VA C&P ~2 Yrs. Post-Sep Right Right Right Right Flexion (180) 175 135 95 75 Abduction (180) 90 136 110, 80 with repetition (Deluca) 65 Comments Weakness/atrophy Weakness No weakness No weakness, no Deluca, painful motion §4.71a Rating 20% 10% 30% for major vs.20% for minor 30% for major vs.20% for minor The MEB exam demonstrated tenderness of the acromioclavicular joint, positive provocative tests for rotator cuff pathology (Neer’s impingement sign and Speed test), decreased supraspinatus strength of 3/5 with slight atrophy of the supraspinatus and infraspinatus musculature and relief of pain somewhat with the relocation test. The provocative tests for bicep pathology were positive and the tests for shoulder instability were negative. The MRI of the right shoulder revealed degenerative changes at the acromioclavicular (AC) joint with subacromial space impingement, diminished space between the head of the humerus and the acromion due displacement of the humerus and findings compatible with supraspinatus rotator cuff tear, pathology of the infraspinatus and the biceps tendons. An electromyogram (EMG) revealed chronic neurogenic deficit relative to the muscles innervated by C7 and C8, right upper limb; furthermore, an MRI of the cervical spine was within normal limits. At the PT evaluation, the CI reported constant pain, was swimming and not weight lifting. The physical exam revealed some 4/5 shoulder weakness with pain, tenderness of the right AC joint and anterior shoulder and no instability. At the C&P exam, 5 months after separation, the CI reported occasional numbness in the right shoulder, neck and down to the hand. He further reported he wrote with his left hand. He was unable to lift overhead; had lack of endurance when using the arm; was able to lift, but not repetitively; and took over the counter nonsteroidal anti- inflammatory medication (Ibuprofen) for pain relief. The C&P exam revealed crepitus, 5/5 motor strength and positive Deluca observations with decreased ROM to 95 abduction, 80 degrees with repetition. The 24 months post-separation VA exam corroborated the limited abduction seen in MEB and VA 5 months exam. The Board directs attention to its rating recommendation based on the above evidence. The evidence supports he uses the left hand with which to write and therefore the Board agreed the right shoulder is considered the minor/non-dominant hand for its rating recommendations. It is reiterated as above the Board is assigning proportionately more probative value to the MEB evaluation and the information in the service record proximal to the date of separation as a basis for the Board’s rating recommendations. The PEB and VA chose different coding options for the condition which had significant implications on the rating for the Board to consider. As stated above the PEB bundled all conditions as a single unfitting condition and assigned 10% rating with an analogous code to 5003. The Board agreed the X-ray evidence and painful motion of the right shoulder meets the minimum allowable 10% rating and there is no evidence of incapacitation episodes to support a 20% higher rating under this code. The VA assigned a 30% major rating coded 5201 (arm, limitation of motion of) for limitation of motion midway between side and shoulder level which is consistent with the ROM criteria however is not consistent with the dominance handedness evidence. The Board considered the VA’s chosen code 5201 and agreed the PT ROM exam achieves the 10% rating and the MEB ROM exam achieve the 20% rating. The Board considered the other ratable data to include diminished strength, the X-ray evidence which is consistent for other shoulder pathology outside of rotator cuff to include; AC joint, humerus displacement and bicep tendon pathology. The Board agreed with the severity of the right shoulder’s pathology, the documented functional impairments and the VA ROM exams, which were similar to the MEB exam. Therefore, the Board concluded the right shoulder functional disability meets the 20% rating IAW VASRD §4.7 (higher of the two evaluations). The Board also considered the 5304 code (Group IV muscles which includes the rotator cuff muscles) and agreed the evidence clearly supports a moderate 10% rating for pain; however, when considering the other ratable data and functional impairments this condition approaches a moderate severe 20% rating. There is no evidence of ankylosis or deformity. The shoulder had normal stability with no recurrent dislocations; therefore, the evidence does not support a higher rating under 5200 nor 5202. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic right shoulder pain condition. Contended PEB Conditions. The remaining contested condition, not addressed above, adjudicated as not unfitting by the PEB is mechanical LBP. The Board’s first charge with respect to this condition 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. This condition was not profiled; it was not implicated in the commander’s statement; and, was not judged to fail retention standards. It was reviewed by the action officer and considered by the Board. There was no indication from the record that this condition 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 this remaining contended PEB condition and, therefore, no additional disability rating 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. As discussed above, PEB reliance on the USAPDA pain policy for rating chronic bilateral heel pain and chronic right shoulder pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic bilateral heel pain condition, the Board recommends a disability rating of 10%, coded 5003-5276 IAW VASRD §4.71a. In the matter of the chronic right shoulder pain condition, the Board unanimously recommends a disability rating of 20%, coded 5201 for minor IAW VASRD §4.71a. In the matter of the mechanical LBP condition, the Board unanimously recommends no change from the PEB determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Chronic Bilateral Heel Pain 5003-5276 10% Chronic Right Shoulder Pain 5201 20% COMBINED 30% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120621, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXXXX, 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 XXXXXXXXXXXXXX, AR20130004077 (PD201201064) 1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum: a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay. b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay. c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay. d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl XXXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)