RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200626 SEPARATION DATE: 20020808 BOARD DATE: 20130315 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (11B30/Infantryman), medically separated for chronic pain of the mid and low back, status post (s/p) compression fracture; chronic right shoulder pain and bilateral ankle pain with instability. In 1995, after an airborne jump, he landed hard and experienced pain in the low back and mid back region and also in the right ankle and right shoulder. He was found to have a T12 vertebral fracture. He was treated conservatively with physical therapy (PT), medications, and duty restrictions. The CI returned to full duty, including active jump status, but developed recurrent symptoms about a year prior to separation. The CI did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB). The MEB referred the back, right shoulder and bilateral ankle conditions to the Physical Evaluation Board (PEB) as medically unacceptable; no other conditions were forwarded by the MEB. The PEB adjudicated the chronic pain, mid and low back, s/p compression fracture; chronic pain right shoulder; and, chronic pain bilateral ankles with instability as unfitting and rated them at 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated with a 10% disability rating. CI CONTENTION: “All issues including right shoulder, fracture vertebrate [sic], left and right ankle.” The Board noted an undated letter from the CI addressed “To whom it may concern” in which he reported that he suffered from depression and shame, tinnitus, sleep disturbance, knee pain, shin splints and plantar fasciitis. 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 back, right shoulder and bilateral ankles, as requested for consideration, meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below. 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 20020529 VA (2 Mos. Post-Separation) – All Effective Date 20020809 Condition Code Rating Condition Code Rating Exam Chronic Pain, …back…R shoulder …bil ankles 5099 5003 10% Right Shoulder Sprain 5299-5201 0% 20021015 Recurrent Ankle Sprains, Bil 5299-5271 0% 20021015 Status-Post Fracture of Spine … 5010-5292 0% 20021015 .No Additional MEB/PEB Entries. 0% x 4 20021015 Combined: 0% Combined: 10% for multiple, noncompensable disabilities The back, shoulder and both ankles were rated at 10% each, effective 20090730, based on post-separation treatment records. ANALYSIS SUMMARY: The PEB combined the back, right shoulder and bilateral ankle conditions as a single unfitting condition, coded analogously to 5003, degenerative arthritis, and rated it 0%. The PEB may have relied on AR 635.40 (B.24 f.) and/or 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 rather than 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. Review of the service treatment records shows that the CI was first seen for left ankle pain after sprain in November 1990, 6 months after accession. He was treated conservatively with return to full duty. In June 1991, he sprained his right ankle, but was again returned to full duty. He was seen several more times for his right ankle in 1995, 1996, and 2000. During this time, he apparently remained on jump status. In October 1995, he made a bad landing after a jump with injury to his back, right shoulder and right ankle. A bone scan a month later showed a fracture at T12 and mild post traumatic change of the right ankle with a stress reaction at the base of the first right metatarsal. The Board noted that the history for an X-ray of the left ankle on 13 April 2001 documented that the CI had left ankle pain since a parachute jump the previous night. Also, the record showed that on 15 June 2001, the CI scored a 265 (300 maximum) on a record physical fitness test, exceeding requirements for sit ups, pushups and the two mile run. Mid and Lower Back Pain, S/P Compression Fracture Condition. On 18 September 2001, 11 months prior to separation, the CI reported morning stiffness of his back while at a family practice appointment for his right shoulder. This was his first recorded evaluation for the back pain since 1995. He had full range-of-motion (ROM), negative provocative testing for radicular irritation and a normal neurological examination and gait. X-rays that day showed a compression fracture at T12 with 20% reduction in height; otherwise, these were unremarkable. He was again seen 2 weeks later with a continued normal examination. An examination in PT a month later was again normal. He was treated by PT without improvement in his pain. He was referred to orthopedics and seen 4 February 2002, 6 months prior to separation. The CI was noted to have a 10% compression fracture, seven degrees of scoliosis, tenderness to palpation over the thoracolumbar junction, painful extension , some flattening and spasm with right less than left side bend. At the MEB examination on 17 March 2002, just under 5 months prior to separation, the CI reported that the back pain had continued since the parachute accident in 1995. The MEB physical examination was silent regarding the back. The narrative summary (NARSUM) was dictated 29 March 2002, 4 months prior to separation. The CI reported chronic, but slight pain. On examination, there was no sensory or motor deficit or muscle atrophy. Reflexes were noted as 1-2+ without further specification. He was able to heel and toe walk. The ROM was slightly reduced in all planes with most reduction in flexion at 50 degrees. It was noted that he had a desk job without organized physical fitness training. The CI was issued an U3L3 profile on 23 April 2002 and was limited to lifting 40 pounds, marching four miles, and walking and running at his own pace and distance. The VA Compensation and Pension (C&P) examination was on 15 October 2002, 2 months after separation. The CI reported back pain rated at 7 out of 10 associated with weakness, stiffness, fatigability, and lack of endurance. He denied flare ups or the use of assistive devices. He worked as a school teacher. His only limitation in daily activity was the use of Motrin. The ROM exceeded normal values without pain. The back musculature was normal. There was no evidence of spasm, weakness, or tenderness. He could walk on both his heels and toes. Reflexes were normal and provocative testing for nerve root irritation was negative. X-rays showed disc space narrowing (location not defined) and degenerative changes in the T11-12 area. A second examination (by the same examiner) that day documented a normal gait. The Board first considered if the back pain condition was separately unfitting. It noted that the CI had injured his back in 1995, but had returned to jump status and had an excellent fitness test a year prior to separation. He had chronic pain, but the back, including ROM, was normal on most examinations including the C&P examination which was the most proximate to separation. There was no history of intervening trauma in the record to account for the increased symptoms the final year of active service. The Board noted that the CI had a U3L3 profile and that the MEB determined the back pain to be medically unacceptable, but that his profile permitted marching for four miles and lifting 40 pounds with unlimited walking and running at his own pace and distance. The commander noted that he was fully able to meet his duties in an office setting and had limited capacity to meet field duties for a limited time. The Board noted that while there was evidence which would argue for the condition being separately unfitting, that the condition would not rate at higher than a 0% disability rating, providing no advantage to the CI. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition. Right Shoulder Condition. There is no record of visits for the right shoulder after the 1995 parachute accident until the CI was seen in family practice on 19 September 2001, 11 months prior to separation. He reported increased pain for the past few months and was unable to throw a ball overhead. The examination was normal including ROM. An X-ray was negative, but a magnetic resonance imaging (MRI) exam on 25 October 2001 showed a mild increased signal of the rotator cuff which was not full thickness and thought to be consistent with early tendon degeneration. At a PT examination on 8 November 2001, the CI reported insidious onset of pain over the prior several years with an increase the past year. The ROM was full, but painful between 120 and 160 degrees. Strength was reduced at 4/5 for abduction at 30 degrees. The CI was treated with PT without subjective benefit. Rotator cuff testing was positive for pain, but there was no impingement. At the MEB examination on 17 March 2002, just under 5 months prior to separation, the CI reported that continued pain in the right shoulder. The examiner noted normal ROM and strength, but pain with abduction. The narrative summary (NARSUM) was dictated 29 March 2002, 4 months prior to separation. The CI reported pain with hyperextension and overhead throwing, but no limitation in ROM. The neurological examination was normal and no atrophy noted. There was slight pain with hyperextension and mild limitation with internal rotation compared to the left. X-rays were normal. The profile restricted the CI to lifting 40 pounds and no pushups although swimming was permitted. The C&P examination was on 15 October 2002, 2 months after separation. The right dominant CI reported pain rated 8 out of 10, stiffness, instability, fatigability and a loss of endurance. He subjectively assessed a 40% loss of function. The ROM was normal including internal rotation. No muscle atrophy was noted. The Board first considered if the right shoulder condition was separately unfitting. It noted that the CI had injured his shoulder in 1995, but had returned to jump status and had an excellent fitness test one year prior to separation including pushups. He had chronic pain, but the right shoulder, including ROM, was normal on most examinations including the C&P examination which was the most proximate to separation. There was no history of intervening trauma or a change in activity in the record to account for the increased symptoms the final year of active service. The Board noted that the CI had a U3L3 profile and that the MEB determined the shoulder pain to be medically unacceptable, but that his profile permitted marching for four miles and lifting 40 pounds with swimming permitted. The commander noted that he was fully able to meet his duties in an office setting and had limited capacity to meet field duties for a limited time. As noted in the discussion for the back, while there is evidence to support a separate unfitting determination, the shoulder condition would not achieve a disability rating higher than 0%, providing no advantage to the CI. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right shoulder condition. Bilateral Ankle Condition. On 13 April 2001, 16 months prior to separation, the CI presented with a complaint of left ankle pain since a parachute jump the previous night. The examination and X-rays were negative for fracture. That June, the CI had an excellent physical fitness test including the run. His next documented visit was in orthopedics on 24 January 2002, 7 months prior to separation, at an appointment requested by PT to evaluate his shoulder. He reported lateral instability and was found to have a pain and crepitance on an anterior drawer test and a positive talar tilt, tests for ligamentous stability. At the MEB examination on 17 March 2002, just under 5 months prior to separation, the CI reported that bilateral ankle pain since the parachute accident in 1995. The examiner noted bilateral pes planus (flat feet), but made no comment on the ankles. The narrative summary (NARSUM) was dictated 29 March 2002, 4 months prior to separation. The CI reported a history of multiple bilateral sprains. The profile restricted the CI to running and walking at his own distance and pace. On examination, there was no swelling and the ROM was normal and symmetric bilaterally. No muscle atrophy was observed. Heel and toe walk was normal. The C&P examination was on 15 October 2002, 2 months after separation. The CI endorsed fatigability, lack of endurance, stiffness, and pain, but denied instability or locking. He subjectively assessed a 40% loss of function, but did not use a brace or assistive device. The ROM was reduced in flexion. No muscle atrophy was noted. Heel and toe walk were normal as was the gait. X-rays were normal bilaterally. The Board first considered if either ankle condition was separately unfitting. It noted that the CI had injured his right ankle in 1995, but had returned to jump status and had an excellent fitness test one year prior to separation including the run. He had chronic pain, but both ankles, including ROM, were normal on most examinations. There was no history of intervening trauma or a change in activity in the record to account for the increased symptoms the final year of active service. The Board noted that the CI had a U3L3 profile and that the MEB determined the bilateral ankle pain to be medically unacceptable, but that his profile permitted marching for four miles and walking or running at his own pace and distance. The commander noted that he was fully able to meet his duties in an office setting and had limited capacity to meet field duties for a limited time. The Board determined that the preponderance of evidence does not support a finding that either ankle condition was separately unfitting. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral ankle condition. 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 the back, right shoulder, and bilateral ankle conditions was operant in this case; these were adjudicated independently of that policy by the Board. In the matter of the back, right shoulder and bilateral ankle conditions, the Board is prohibited from lowering the PEB rating; therefore, the board unanimously recommends no change in the PEB adjudication. 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 Pain, Mid and Low Back, Status-Post Compression Fracture, Right Shoulder (Pain) and Bilateral Ankles with Instability 5299-5003 10% RATING 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120604, 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 / xxxxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxxx, AR20130006866 (PD201200626) 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 xxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)