RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201319 SEPARATION DATE: 20031115 BOARD DATE: 20130219 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (71L/Postal clerk) medically separated for left shoulder and thoracic back pain. He was treated, but did not improve adequately to fully perform his military duties or meet physical fitness standards. He was issued a permanent profile and underwent a Medical Evaluation Board (MEB). The MEB found two conditions (left shoulder pain & thoracic back pain) medically unacceptable, and referred him to a Physical Evaluation Board (PEB). No other conditions were listed on DA Form 3947. The PEB combined his two problems into a single unfitting condition, and assigned a disability rating of 0%. The CI made no appeals, and was medically separated with 0% disability. CI’s CONTENTION: The CI has written a lengthy contention. It begins on DD Form 294, and is continued on two pages which are attached to his application. All of the comments in his entire written contention, were reviewed and considered by the Board. SCOPE OF REVIEW: The Board’s scope of review as defined in DoDI 6040.44, 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 unfitting pain conditions (left shoulder and thoracic back pain) meet the criteria prescribed in DoDI 6040.44, and are accordingly addressed below. No other conditions are within the Board’s purview. Any condition outside the Board’s defined scope of review may be eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Army PEB – dated 20031007 VA – All Effective 20031116 Condition Code Rating Condition Code Rating Exam Left Shoulder and Thoracic Back Pain 5099-5003 0% Left Shoulder Pain 5201-5010 10% STR Thoracic Back Pain 5242 10% STR .No Additional MEB/PEB Entries. 0% X 1 / Not Service Connected x 4 STR Combined: 0% Combined: 20% ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his conditions continue to burden him, and the significant impact they have had on his quality of life. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the military Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate the CI for future severity or potential complications of conditions. That role and authority is granted to the Department of Veterans Affairs (DVA). The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation. Compensation can only be granted for the degree of severity present at separation. The DVA, however, is empowered to re-evaluate a CI’s conditions for the purpose of adjusting the disability rating should the degree of impairment change. The Army PEB combined left shoulder pain and thoracic back pain into a single unfitting condition, coded 5099-5003 and rated at 0%. This approach by the PEB not uncommonly reflects its judgment that the constellation of symptoms was unfitting, and there was no need for separate fitness adjudications for each condition. In contrast, the VA unbundled the two conditions, and rated each one at 10%. The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings. When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition, standing alone, would not cause the member to be referred into the DES or be found unfit because of physical disability. After due deliberation, the Board agreed that the evidence supports a conclusion that each of the painful conditions, separately, would have rendered the CI unable to perform his required military duties. Accordingly, the Board recommends a separate disability rating for each condition. Left Shoulder Pain . In 1996, prior to joining the Army, the CI injured his left shoulder in a motor vehicle accident (MVA). Three years later he felt a tear in his left shoulder while doing push-ups. Surgical repair was twice recommended for the left shoulder but the CI declined both times. He was treated non-operatively with physical therapy (PT) and pain medications. In spite of treatment, his shoulder pain persisted and an MEB was initiated. His MEB clinical evaluation was on 13 August 2003. At that exam, the left shoulder had full range-of-motion (ROM) but shoulder motion was painful above 90 degrees. Muscle strength in both upper extremities was normal. As noted above, the CI was medically separated from the Army in November 2003. He filed a claim with the VA but he failed to appear for his examination. There was one ROM evaluation in evidence, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Left Shoulder ROM MEB ~3 mos. Pre-Sep (20030813) Flexion (180° is normal) 180° Abduction (180° is normal) 180° Comments Painful above 90 degrees §4.71a Rating 10%* *10% based on VASRD §4.40 (Functional loss), §4.45 (The joints), and §4.59 (Painful motion) The Board carefully reviewed all evidentiary information available. Using clinical data in the treatment record, the CI’s left shoulder was essentially non-compensable based on the Veterans’ Administration Schedule for Rating Disabilities (VASRD) §4.71a codes for loss of shoulder/arm motion (5200 and 5201). However; IAW VASRD §4.40, §4.45, and §4.59, a 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint. The Board tried to find a path to a higher rating for the left shoulder, but there was not sufficient evidence to justify a rating higher than 10%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left shoulder pain condition. It is appropriately coded 5299-5203 and meets criteria for the 10% rating level. Thoracic Back Pain. The CI started having back pain in 1998. Many different treatment options were tried including medication, PT, and manipulation. In spite of treatment, his back pain persisted. At the August 2003 MEB exam, the examiner detected a slight round back deformity of the thoracic spine and increased lumbar lordosis. There was tenderness to percussion in the midline at multiple thoracic levels, and rotation caused some pain in those areas. On forward flexion, the tips of fingers came to within 5 cm (i.e. 2 inches) of the floor. Spine X-rays showed minimal wedging in the T6-T10 vertebrae with early degenerative changes, and osteophytic lipping noted from T7-T9. There was some disk space narrowing, but no gross abnormality. The Board examined all the evidence, and directs attention to its rating recommendation based on the evidence above. Forward flexion was not measured in degrees. However, the Board concluded that since his fingers came to within 5 cm of the floor, forward thoracolumbar flexion was probably in the range of 80-85 degrees but not greater than 85 degrees. Internal rotation was painful. The examiner noted a round back deformity and increased lordosis, but this abnormal curvature was not due to muscle spasm or guarding. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the thoracic back pain condition. It is appropriately coded 5242 and meets criteria for the 10% rating; IAW VASRD §4.40, §4.45, §4.59, and §4.71a. 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. In the matter of the left shoulder pain condition, the Board unanimously recommends a disability separation rating of 10%, coded 5299-5203 IAW VASRD §4.40, §4.45, §4.59, and §4.71a. In the matter of the thoracic back pain condition, the Board unanimously recommends a disability separation rating of 10%, coded 5242 IAW VASRD §4.40, §4.45, §4.59, and §4.71a. 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, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Left shoulder pain 5299-5203 10% Thoracic back pain 5242 10% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120702, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxx, AR20130005367 (PD201201319) 1. 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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation. This decision is final. 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. 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 xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)