RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200529 SEPARATION DATE: 20031016 BOARD DATE: 20130207 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (31U/Signal Support Systems Specialist), medically separated for chronic low back pain (LBP) and a chronic pain condition bundled as a right shoulder and left ankle condition. He did respond adequately to conservative treatment for the right shoulder, however did not respond adequately to conservative treatment for the low back or surgical treatment for the left ankle and was unable to meet the physical requirements of his Military Occupational Specialty (MOS); worldwide deployment standards or physical fitness standards. He was issued a permanent L3 profile for the low back and left ankle condition and was referred for a MEB. Degenerative joint disease (DJD) left ankle, right shoulder impingement and low back pain were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions appeared on the MEB’s submission. The PEB adjudicated the low back condition as unfitting rated 10% and the right shoulder and left ankle condition as unfitting, bundled them and rated, 0% with application of the Department of Defense Instruction (DoDI) 1332.39 US Army Physical Disability Agency (USAPDA) pain policy, respectively. The CI made no appeals, and was medically separated with a 10% disability rating. CI CONTENTION: “I was discharged from the Army on 10/16/2003 with a rating of 10%. After my discharge the VA scheduled an evaluation appt. sometime in early 2004 that I missed, cause of a mixup with my address. Once I realized I missed the appt. I immediately rescheduled and opened a new claim on 5/12/2004. The VA evaluation, based only on my Army medical records, raised my rating to 40% effective 10/17/2003 and to 50% effective 5/12/2004. The VA disability rating letter is attached. I respectfully request that the PDBR consider this in my request for a review under the Wounded warrior Act.” 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. 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 PEB – Dated 20030814 VA (1 Mo. Pre-Separation) – All Effective Date 20031017 Condition Code Rating Condition Code Rating Exam Chronic Low Back Pain 5299-5295 10% Mechanical Low Back Pain 5237 10% 20030912 Chronic Pain Right Shoulder and Left Ankle 5299-5003 0% Degenerative Joint Disease Status Post Arthroscopy, Left Ankle 5271 10% 20030912 Tendonitis and Bursitis, Right (Dominant) Shoulder 5304 10% 20030912 .No Additional MEB/PEB Entries. 0% X 5 20030912 Combined: 10% Combined: 30% ANALYSIS SUMMARY: The Board notes the current VA ratings listed by the CI for all of his service-connected conditions, but must emphasize that its recommendations are premised on severity at the time of separation. The VA ratings which it considers in that regard are those rendered most proximate to separation. The Disability Evaluation System 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. Low Back, Left Ankle and Right Shoulder Conditions. The CI received surgical treatment for DJD of the left ankle in 1999 which resulted in a P2 profile and was thus referred to reclass as a light wheeled mechanic (63B). While in training he reported a history of low back and right shoulder pain. He received physical therapy and nonsteroidal medications with some improvement in his right shoulder. The permanent profile reflected the low back and left ankle conditions with the following limitations, alternate physical training test (walk, bike and sit-ups), lift up to 30 pounds, able to perform all functional activities. The commander’s statement corroborated only the back condition as functionally impairing his ability to perform duties of a 63B. The commander further specified this was due to the lifting profile restriction with the inability to move his personal effects around the battlefield as well as precluding him from performing critical field duties. The commander concluded the CI’s back problem did not prevent him from performing in his current MOS as a communications instructor and his profile did not detract from the company’s mission. However, he was incapable of performing the duties of a 63B. At the MEB exam, the CI reported LBP and mid right shoulder pain with over the shoulder motion and pushups and reported the pain was occasional and slight. After conservative care his shoulder was much better yet his back pain continued. The MEB physical exam demonstrated normal appearance of the low back, right shoulder and left ankle with no tenderness. The low back was absent for neurologic signs and demonstrated decreased lumbar lordosis with no reversal of lumbar rhythm. The left ankle had a well healed small lateral arthroscopy scar and no neurovascular signs. X-rays revealed a normal right shoulder, degenerative changes of L3 and L4 vertebral bodies, and mild DJD of the left ankle. Magnetic resonance imaging (MRI) a month after the MEB exam revealed a normal lumbar spine and mild tendinosis of the supraspinatus tendon with bursitis of the right shoulder. At the VA Compensation and Pension (C&P) exam prior to separation, the CI reported taking Tylenol as needed for his back, right shoulder and left ankle pain, reported flare-ups of no specific amount for the back, right shoulder and ankle that limited his lifting, the back pain was more irritating but he could still do things, he could no longer run and wore an ankle brace if his activity included prolonged standing or walking. The C&P exam demonstrated no new additional findings outside the ratable ROM data in the charts below. X-rays were normal of the low back and right shoulder and revealed bone like densities of the left ankle. There were two range-of- motion (ROM) evaluations in evidence for the low back and left ankle, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the charts below. Thoracolumbar ROM (Degrees) Narsum ~4 Mo. Pre-Sep VA C&P ~1 Mo. Pre-Sep Flexion (90 Normal) Within 2 inches to floor w/discomfort 85 Ext (0-30) 20 Full R Lat Flex (0-30) To knees Full L Lat Flex 0-30) To knees Full R Rotation (0-30) -- 30 L Rotation (0-30) -- 30 Combined (240°) -- 235 Comment No spasm Painful motion, no spasm, normal posture §4.71a Rating 10%* 10% *Conceding §4.59 painful motion Left Ankle ROM (Degrees) Narsum~4 Mo. Pre-Sep VA C&P ~1Mo. Pre-Sep Dorsiflexion (0-20) 15 Full Plantar Flexion (0-45) 45 Full/Painful motion Comment §4.71a Rating 10% 10%* *Conceding §4.59 painful motion The Board directs attention to its rating recommendation based on the above evidence. The PEB combined right shoulder and left ankle pain as a single unfitting condition coded analogously to 5003 and rated 0%. The PEB relied on DoDI 1332.39 and the USAPDA pain policy for not applying separately compensable Veterans Affairs Schedule for Rating Disabilities (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. Thus the Board must exercise 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 first considered if left ankle, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above. All members agreed that left ankle, as an isolated condition, would have rendered the CI incapable of continued service within his MOS and accordingly merit a separate service rating. The Board next considered whether right shoulder remains separately unfitting, having de-coupled it from a combined PEB adjudication. In analyzing the intrinsic impairment for appropriately coding and rating of the right shoulder condition, the Board is left with a questionable basis for arguing that right shoulder was indeed independently unfitting. The MEB was initiated for chronic LBP and at this time sought treatment for right shoulder pain, subsequently reported much improvement of the right shoulder pain with conservative treatment and further reported that the low back was the more irritating condition. Furthermore, the right shoulder condition is not profiled nor mentioned in the commander’s statement. After due deliberation, the Board agreed that evidence does not support a conclusion that right shoulder, as an isolated condition, would have rendered the CI incapable of continued service within his MOS and accordingly cannot recommend a separate service rating for it. The Board directs attention to its rating recommendation based on the above evidence for the low back condition. The PEB’s chosen code for the low back is analogous to 5295 from the 2002 VASRD coding and rating standards for the spine, which were in effect at the time of separation. These standards were modified on 23 September 2002 to add incapacitating episodes (5293, Intervertebral disc syndrome), and then changed to the current §4.71a rating standards on 26 September 2003 which is what the VA relied upon for their chosen code 5237 (lumbosacral strain). The 2002 standards for rating based on ROM impairment were subject to the rater’s opinion regarding degree of severity, whereas the current standards specify rating thresholds in degrees of ROM impairment. For the reader’s convenience, the 2002 rating codes under discussion in this case are excerpted below. The two potentially applicable codes from the 2002 VASRD are excerpted below: 5292 Spine, limitation of motion of, lumbar: Severe ………………………………………………………..……….………….... 40 Moderate …………………………………….……………….…….…………...…. 20 Slight ………………………………………………………..…………………..….10 5295 Lumbosacral strain: Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion …………………..…... 40 With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing' position ……………...…………..…...….….. 20 With characteristic pain on motion ………………………………..……...…….…. 10 With slight subjective symptoms only ……………………...………………...……. 0 The PEB’s DA 199 reflected application of DoDI 1332.39 (E2.A1.1.20.2) and AR 635.40 (B-39) for rating, but its 10% determination was consistent with §4.71a standards. While the MEB exam does not have an accurate ROM measurement the descriptor revealed impairment sufficient for 10% rating which is also supported by the VA flexion ROM impairment. The Board considered the PEB’s rating under the 5295 code of the 2002 VASRD. The 20% rating for 5295 required muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. The CI’s condition clearly did not meet that threshold even at the post separation VA examination. There is no evidence of documentation of incapacitating episodes which would provide for additional or higher rating. The Board next directs attention to its rating recommendation based on the above evidence for the left ankle condition. The PEB’s DA 199 reflected application of the USAPDA pain policy for rating and its 0% determination for the left ankle is inconsistent with §4.71a standards. The left ankle has a noncompensable loss of motion in the MEB exam and positive X-ray findings which warrant at least the minimum 10% rating for X-ray evidence and pain limited motion. In consideration of VASRD §4.7 Higher of two evaluations, the Board agreed X-ray evidence, the MEB ROM and VA ROM with painful motion is more consistent with the moderate criteria for the VA’s chosen codes for the left ankle. There is no viable approach to a higher rating for the left ankle which is countenanced by the VASRD. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board recommends a disability rating of 10% each for the low back and left ankle conditions and further agreed that the preponderance of the evidence with regard to the functional impairment of right shoulder does not favor its recommendation as an additionally unfitting condition for separation rating. 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 DoDI 1332.39 (E2.A1.1.20.2), AR 635.40 (B-39) and the USAPDA pain policy for rating the low back, the single unfitting pain condition bundled as right shoulder and left ankle was operant in this case and the conditions were adjudicated independently of that policy by the Board. In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the left ankle condition, the Board unanimously recommends a disability rating of 10%, coded 5271-5003 IAW VASRD §4.71a. In the matter of right shoulder condition, as combined in the PEB adjudication, the Board unanimously agrees that it could not be satisfactorily established as independently unfitting; and, therefore, is not ratable for service disability. 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 Chronic Low Back Pain 5299-5295 10% Chronic Pain Left Ankle 5271-5003 10% Chronic Pain Right Shoulder Not unfitting COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120606, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, AR20130006217 (PD201200529) 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 xxxxxxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)