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AF | PDBR | CY2012 | PD 2012 01931
Original file (PD 2012 01931.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2012-01931
BRANCH OF SERVICE: Army  BOARD DATE: 20140423
SEPARATION DATE: 20030208


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (91B1O/Medic) medically separated for chronic arthralgias. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Three conditions were forwarded to the Physical Evaluation Board (PEB) as not meeting medical standards IAW AR 40-501: polyarthralgias, bilateral lower extremity stress fractures and a rotator cuff sprain of the right shoulder. In addition the MEB identified and forwarded four other conditions (per rating chart below) judged to be medically acceptable. The Informal PEB combined the arthralgia and stress fracture diagnoses as a single unfitting condition, rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy. The right shoulder and remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.


CI CONTENTION: The CI elaborated no specific contention in her application.


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified, but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting chronic arthralgias, involving hips, ankles, hands and neck conditions is addressed below. The right shoulder, migraine, anemia, hypertension, bladder and hernia conditions which were adjudicated by the service as not unfitting were not requested and thus are not within the DoDI 6040.44 defined purview of the Board. These, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20021119
 VA - (8.5 Mo. Pre – 7.9 Yrs. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Arthralgias of Hips, Ankles, Hands and Neck with Bilateral Lower Extremity Stress Reaction 5099-5003 10% Multiple Sclerosis with Loss of Use of Right Foot 8018-5167 40% 20101103
Stress Periostitis, R Lower Leg 5022-5262 0% 20101103
Stress Periostitis, L Lower Leg 5022-5262 0% 20101103
Other x 6 (Not in Scope)
 Other x 6 20020528
Combined: 10%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 20130117


ANALYSIS SUMMARY: The original VARD was not available in evidence before the Board and could not be located after appropriate inquiries. Further attempt at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case and, it was judged by the members that the missing evidence would not materially alter the Board’s recommendations. The Board notes that the source exams for several of the VA ratings noted above were performed 7+ years after the date of separation (DOS) and, thus are not significantly probative to recommendations premised on disability at DOS. Therefore the evidence and the pre-separation VA Compensation and Pension (C&P) examination referenced above were assigned determinant probative value with respect to the Board’s recommendations.

The Board notes that the CI was diagnosed with multiple sclerosis (MS) in May 2010 (~7 years post-separation); with a VA examiner opinion that “more likely than not” the conditions identified in service were early manifestations of MS. The VA provided MS-linked ratings retro-effective to DOS based on this opinion. It must nevertheless be affirmed that the scope of the Board recommendations does not extend to conditions which were not diagnosed in service, even though symptoms and disability may have been present which were later attributed to such diagnoses; since such undiagnosed conditions cannot be correlated with a fitness determination requisite for service rating. The Board will thus evaluate the disability associated with the in-scope conditions, irrespective of service diagnosis; make fitness distinctions based on functional impact at DOS and, provide rating recommendations for unfitting conditions based on VASRD criteria with application of the most favorable and justifiable code.

Arthralgias - Subsuming Hips, Ankles, Hands, Neck, and Lower Extremity Conditions. The service treatment record (STR) contains sporadic entries back to November 1995 (within months of enlistment) with complaints of “atypical” leg pain, pain and paresthesias of the right upper extremity (RUE) and other non-specific symptoms involving various joints and all extremities. There is a history of repeated right ankle sprains from this same period, with surgical stabilization in 1996. The right ankle was identified as a distinct separate orthopedic condition throughout the STR and identified as such in the pre-separation VA C&P examination and the narrative summary (NARSUM). There is also an STR entry from January 2002 (13 months prior to separation) that the CI suffered a sprain injury of the left ankle. Bilateral ankle X-rays during the MEB period were normal (post-surgical findings on the right). Physical therapy (PT) notes from January 2000 document a complaint of neck pain (no injury) that was initially associated with RUE radiation, numbness, tingling and grip weakness; which had recently progressed to the left upper extremity (LUE). The CI reported difficulty opening jars and doors and objective diminished grip strength on the right was recorded by the examiner. There was no improvement with PT and ancillary evaluation ensued. Magnetic resonance imaging (MRI) of the cervical spine and bilateral brachial plexus (nerve bundle to the arms) were normal, as was bilateral electromyelography (EMG, measuring nerve conduction) of the upper extremities. Neurologic consultation yielded no specific diagnosis. In March 2001 (~2 years prior to separation) the CI continued to report RUE pain and hand weakness (“dropping heavy objects”), now with a report of right shoulder pain of one and a half years duration. The examination noted decreased right shoulder range-of-motion (ROM) and some RUE weakness with decreased lateral sensation. The PT diagnosis was right shoulder impingement. In February 2002 (a year prior to separation) the CI presented to the emergency room with a complaint of neck and left arm pain, with the examiner noting normal strength of the LUE but diminished strength of the RUE. A follow-up STR entry noted cervical tenderness to palpation and mildly reduced left sided ROM, but no subsequent distinct cervical spine diagnosis or formal ROM evaluation is in evidence. There was an emergency room visit from April 2002 (10 months prior to separation) for a complaint of neck pain radiating to the right side of the face (rated 8/10).

Earlier, in October 2001 (16 months prior to separation), the applicant had been referred to orthopedics for low back and pelvic pain, which was associated with right lower extremity pain, subjective weakness and numbness/tingling. The examiner noted an antalgic gait and objective weakness of the right hip and both big toes; although, an EMG was normal. Bilateral hip/pelvis X-rays showed insignificant mild degenerative findings and an MRI of the lumbar spine was normal. Subsequent STR entries documented normal gait. A bone scan from January 2002 reported some increased uptake in the knees and bilateral tibias suggestive of stress changes (periosteal reaction, possible shin splints), but no other abnormalities. An orthopedic entry in March 2002 noted that the bone scan was negative for stress fracture of the pelvis, hip, or sacroiliac joints and, indicated that the CI had improved with stretching exercises. A follow-up visit in May 2002 (9 months prior to separation) noted a continued complaint of lower extremity weakness, resolution of the toe weakness by exam, a sensory deficit of the right foot, and a diagnostic impression of “sacroillitis with radicular symptoms.”

There is a rheumatology consult (undated, but the referral note was 7 months prior to separation) which documented some trigger points but, normal gait, normal ROM and normal strength of all extremities, except for decreased right grip strength (4/5). The impression was “numerous neuromuscular complaints that do not neatly fit a single diagnosis … elements of fibromyalgia.” A rheumatology follow-up visit (also undated) elaborated an additional complaint of headache (HA) not typical of the CI’s migraines (migraine HA, separate MEB submission) with continued pain in the “neck, elbows, knees … hips, hands, and feet;” it recommended tapering of current narcotics with continued PT and conservative measures and, the rheumatologist recorded a diagnostic impression at this time of “chronic pain – musculoskeletal, diffuse, etiology unknown.” Subsequent entries referenced the possibility of fibromyalgia, but there was no confirmed diagnosis prior to separation. The last note in the STR on 30 July 2002 indicated that the CI reported wrist, hand and ankle pain rated 8/10 and she was provided narcotic pain medication. One note in the STR documented 24 hours quarters for back and hip pain 14 months prior to separation, but there was no documentation of incapacitating episodes (physician-directed bed rest) in the twelve months prior to separation.

The VA pre-separation C&P was dated 3 days earlier than the NARSUM, with both exams ~8 months pre-separation and prior to the rheumatology consultation. The history and physical findings were largely identical (judged likely that the NARSUM imported C&P content) with no unique evidence in one over the other and, accordingly, the two evaluations are presented together. The CI reported constant pain in her right posterior hip/sacroiliac area, ankles, hands and fingers, wrists and right elbow; and episodic pain in her neck. Both examiners recorded that she “rates her overall generalized arthralgias and pain as [4-8/10],” and both noted difficulty with sleep and daytime fatigue. The examiners recorded that the pain “worsened with walking or exercise and improves after rest;” and, noted that the pain interfered with daily activities related to housekeeping and yard work. The physical exams documented a normal gait, with the only noted tenderness being the sacroiliac joints. Normal (and identical) ROM measurements of the lumbar spine were recorded, with documentation of painful motion. The ROM annotation for the shoulders was “full” with painful motion on the right; for the wrists “full” with pain on sustained dorsiflexion bilaterally and, for bilateral elbows, hands, hips, knees, ankles and feet “full [ROM] without clinical findings.” The documented neurological findings were “muscle strength was 5/5 throughout … reflexes are +2 [normal] throughout.”

The NARSUM provided the diagnoses and AR 40-501 retention recommendations as elaborated in the Summary, concluding that the CI “has multiple disqualifying conditions”. The CI’s profile remained P1/U1/L3 from 2000 through to her permanent profile at separation. The medical condition was listed simply as “multiple joint pains;” but, the limitations included wearing a helmet, carrying a rifle, push-ups and lifting more than 20 pounds. It should be noted, however, that the C&P and NARSUM documented that the CI specifically avoided lifting over 20 pounds because of right shoulder pain. The commander’s performance statement referred only to her “disability” and noted the profile limitations to soldiering requirements, “all tasks related to daily military operations,” and the MOS-specific requirement for casualty transportation based on the weight limitation to lifting.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the unfitting chronic arthralgias condition (involving hips, ankles, hands and neck, with lower extremity stress reaction) 10% according to the USAPDA pain policy with a pain rating of slight/frequent noted. The original VARD is not in the records available, but the VARD on 17 January 2013 noted that the 40% rating formerly for fibromyalgia, with an effective date the day after separation, was continued at 40% as multiple sclerosis. Although the PEB’s combined approach complies with AR 635-40 (B.24 f.); the Board must apply separate codes and ratings in its recommendations, if compensable ratings for component conditions are achieved IAW the VASRD. 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 is reasonably justified as separately unfitting.

The Board first engaged in protracted deliberations regarding whether to unbundle the components of the combined PEB adjudication for disability rating or maintain them as a sole unfitting condition. Thus, the Board reviewed the record to see if there was reasonable evidence that any of the following conditions were unfitting in themselves: hips, ankles, hands, neck or bilateral LE stress reactions. The Board noted that the permanent profile listed the medical condition of “multiple joint pains”; the commander’s statement noted no specific condition, noting only that the CI’s “disability” and “physical impairments” limited duty performance. The MEB NARSUM and MEB listed three conditions as medically unacceptable: polyarthralgia, stress fracture of the bilateral lower extremities and chronic right rotator cuff sprain. It is further noted that the right shoulder condition was found not unfitting by the PEB, not specifically contended by the CI and thus not within the scope of the Board’s review. Following deliberations the Board consensus was that extracting discrete conditions from the individually listed components of the chronic arthralgias condition was overly speculative and arbitrary, and implied a diagnostic distinctness not supported by the medical evidence. The Board majority noted the fact that the original bundled condition as specified by the PEB overlapped symptoms with some probably clinically distinct conditions in the record, such as the post-surgical right ankle and the tibial stress reactions, but concluded that their disability effects could not be separated one from the other. The Board consensus was to maintain the combined adjudication, which was clinically attractive and consistent with the medical evidence. A dissenting voter (who favored unbundling all of the service combined joint and tibial conditions) expressed objections to the majority approach based on military Disability Evaluation System (DES) principles which are elaborated in the appended minority opinion.

The Board next deliberated the appropriate coding for the chronic arthralgias condition. Noting the similarity of symptoms at separation to those of fibromyalgia (consider the rheumatology differential diagnosis, STR references and initial VA rating determination); members considered an analogous rating under code 5025 for fibromyalgia (acknowledging that this was not the diagnosis). Members carefully considered that 5025 rating criteria are dependent on overall symptom acuity and constancy and, that contributions from ineligible conditions (migraine, right shoulder) could not be factored into the Board’s rating recommendation for the condition. It is noted, however, that 5025 specifies “With widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesias, headache, irritable bowel symptoms, depression, anxiety, or Raynaud’s symptoms;” and, member consensus was that this provided sufficient latitude for analogously rating only the disability attendant to DES eligible conditions. Member consensus was, therefore, that the chronic arthralgias condition was best rated analogously under 5099-5025 and, that this meets the “fair and equitable” provisions under DoDI 6040.44.

Having agreed to an analogous 5025 coding approach, the Board turned to deliberation of the appropriate rating recommendation under those criteria. The 10% criterion under 5025 is for symptoms that “require continuous medication for control;” and, members agreed that the symptoms could not be reasonably considered to be under control at separation. The Board thus deliberated the remaining options of 20% for symptoms that are “episodic … but that are present more than one-third of the time;” or, 40% for symptoms that are “constant, or nearly so, and refractory to therapy.” The evidence demonstrates a waxing and waning course of symptoms, but does not provide any indication of periods when the CI could have been considered to be pain free; thus, “constant, or nearly so” is not an unreasonable characterization. There was discussion regarding the “and refractory” criterion for a 40% recommendation, since the symptoms were improved and under treatment at the time of the evaluations near separation. Member consensus was, however, that this improvement could not be conclusively linked to treatment; but, rather, more likely typified a cyclical course with a nadir at separation (confirmed by post-separation evidence, but reasonably concluded from the in-service course as well). After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board’s consensus recommendation is a disability rating of 40% for the chronic arthralgias condition under code 5099-5025.


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 and AR 635-40 for rating the chronic arthralgias condition was operant in this case, and the conditions were adjudicated independently of that guidance by the Board. In the matter of the chronic arthralgias condition, the Board by a 2:1 vote recommends a disability rating of 40%, coded 5099-5025 IAW VASRD §4.71a. The single voter for dissent (who recommended an unfitting hip condition, coded 8799-8720, rated 20% and an unfitting right hand condition, coded 8599-8515, rated 10%, combined rating 30%) submitted the appended minority opinion. 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 her prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Intractable Chronic Polyarthralgias 5099-5025 40%
COMBINED 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121128, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

MINORITY OPINION: As minority voter, I carefully considered the analogous 5025 coding and rating approach endorsed by the majority. Like the majority, I found it attractive and could concede that it is justifiable under the DoDI 6040.44 “fair and equitable” principle; but, unlike the majority, I believe that it unacceptably circumvents well established DES principles which indisputably attach to proceedings of this Board. The 5025 rating criteria, as elaborated in these proceedings, are dependent on overall symptom acuity and constancy and, the contribution from ineligible conditions (headache, right shoulder, post-operative pelvic pain) is significant and inextricable from a service rating derived from this approach. A 5025 rating also unavoidably subsumes impairment from collateral symptoms and conditions that could not be considered unfitting or within the Board’s scope. This would include depression, insomnia, fatigue and other constitutional symptoms which were evidenced in this case (some of which are not elaborated in these proceedings, but supported in the record). The superimposition of both Board scope constraints and DES fitness principles on the rating quagmire intrinsic to the analogous 5025 approach is self-evident. The majority rationale takes the position that discrete conditions could not derived from the overall clinical evidence without undue speculation; and, in the case of the distinctly “non-arthralgia” conditions (right ankle, tibial stress reactions), that the overlapping “disability effects could not be separated one from the other.” This position is challenged somewhat by a course of deliberations which, as a hypothetical exercise, pursued a full unbundling of the only disabilities which are eligible for Board rating and fitness recommendations in this case; e.g., cervical impairment, bilateral upper extremity impairment, and bilateral lower extremity impairment. During the course of this exercise there was no quarrel with the existence of discretely derivable ‘conditions’, which included agreement on appropriate analogous codes; and, there were only conflicting rating opinions, with consensus regarding separate fitness determinations. The majority approach also further makes the assumption that the impingement by ineligible conditions on the broad 5025 rating criteria encompassing acuity, constancy, and response to treatment of all pain and other symptoms could be in effect clinically subtracted from rating. The minority voter judges that such distinctions cannot be made with any acceptable degree of precision; and, thus cannot endorse the majority’s working assumption.

With regard to the minority recommendation(s) aligned with an unbundling approach, I will summarize the general condition identification and coding recommendations pursued during deliberations as referenced above. The Board’s prerogative for unbundling Service consolidated rating determinations is well established, as are its guidelines for doing so. If the Board judges that two or more separate ratings are warranted in such cases, it must satisfy the requirement that each ‘unbundled’ condition is reasonably justified as separately unfitting; analyzing each of the component conditions and providing separate fitness judgments and attendant rating recommendations when indicated. The individual minority conclusions and recommendations follow:

Cervical Condition. There is no distinct cervical pathology or measured ROM impairment in evidence. Although the profile was U1, the Kevlar proscription suggested cervical limitations. That was not enough, however, to satisfy a conclusion that the cervical condition was reasonably justified as separately unfitting.

Hand Condition. It may be argued that there was ‘generic’ bilateral upper extremity impairment reflected in the evidence (elbows and shoulders implicated as well), but the dominant impairment throughout the record was related to the right upper extremity; specifically, with the significant functional sequela of weak grasp. Although the profile was U1, the proscriptions for carrying a rifle, push-ups, and lifting imply upper extremity limitation. It is concluded therefore that the right hand weakness persisting through separation constituted a condition reasonably justified as separately unfitting; although, left upper extremity impairment or any other right upper extremity impairment cannot be so justified. A logical coding choice for appropriate rating of the right hand weakness is 8599-8515 (median nerve), and I recommend 10% for mild impairment (exam documented 4/5 grip strength).

Hip Condition. It is probable that there was no intrinsic hip joint pathology, but the hip pain was linked to the lumbar, pelvic, and sacroiliac complaints; and, it is reasonable to subsume any attendant disability to these linked complaints under this condition. The evidence indicates that the dominant pain and disability was on the right; and, although improving, the probative evaluations at separation (rheumatology consult, C&P/NARSUM) document significant persistent limitations justifying the permanent L3 profile. The right hip (and contiguous) impairment can thus be reasonably justified as separately unfitting; although, no left lower extremity impairment can be so justified. A logical coding choice for appropriate rating of the right hip condition (which must subsume the contiguous conditions and overall impairment) is 8799-8720 (sciatic nerve), and I recommend 20% for moderate impairment.

Ankle Condition(s). Although ankle arthralgias were mentioned in the NARSUM/C&P, they were not documented by the MEB rheumatologist; and, the separately distinct right ankle (trauma, post-surgical) condition was not clinically active by the time of MEB proceedings. It is judged therefore that no ankle impairment can be reasonably justified as separately unfitting.

Bilateral Tibial Stress Reactions. The clinical evidence suggests that this condition was likely related to resolving shin splints (ameliorated by the L3 profile), and there is no performance based evidence suggesting that this condition (separately or bilaterally) was distinctly problematic at separation. It should also be noted that any attendant disability would have been subsumed by the Board’s fitness decisions, coding, and rating approach as elaborated for the hips/contiguous conditions. It is judged therefore this condition(s) cannot be reasonably justified as separately unfitting.

In summary, the following minority recommendation is respectfully submitted for the Secretary’s consideration.

UNFITTING CONDITION VASRD CODE RATING
Arthralgia with Motor Impairment, Right Hand 8599-8515 10%
Arthralgia with Contiguous Pelvic/Sacroiliac Involvement, Right Hip 8799-8720 20%
COMBINED 30%

SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXX, AR20150000324 (PD201201931)
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 40% 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 40% 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 of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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