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AF | PDBR | CY2012 | PD2012 01338
Original file (PD2012 01338.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201338
BRANCH OF SERVICE: army  BOARD DATE: 20130403
SEPARATION DATE: 20011122


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantry) medically separated for right shoulder dislocations as well as neck and upper back pain. At an orthopedic consult in 1995 the CI reported numerous dislocations of his shoulder since age 17. That condition was exacerbated when the CI dislocated his shoulder riding in an armored personnel carrier (APC), after which he complained of daily dislocations. In 1999, the CI underwent shoulder stability surgery. Post-operatively, the CI felt continued weakness and instability in his right shoulder. Regarding the neck and upper back pain, the CI entered military service in 1992 with a congenital fusion of C6-C7 noted during the entrance exam. Neck and upper back pain were treated with conservative measures (anti-inflammatory medication and physical therapy) to no avail. These conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards. He was therefore issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB). The shoulder, neck and upper back condition(s), characterized as “chronic neck and upper back,” “partial fusion abnormality C6/C7,” and “right shoulder subluxation status-post open Bankart reconstruction” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “history of recurrent shoulder dislocations…” and “chronic neck and upper back pain…” as unfitting and rated 20% and 0%, respectively. The CI made no appeals and was medically separated with that 20% combined disability rating.


CI CONTENTION: “Continued Right Shoulder Pain and Chronic Back and Neck Pain. My left eye is highly sensitive to sunlight and wind do to the cornea scar and cannot be corrected by glasses and causes constant discomfort but I did not get an increase in rating from the VA. The injury was service connected and is covered medically during periods of active inflammation. My problem is that it's irritated and inflame every day due the scaring and sensitivity caused by everyday life. In high wind situations I lose complete use of my eye and can only make out shadows. My right shoulder was the injury I was separated for and still hinders my daily life due to limited range of motion, sensitivity and chronic pain.”


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 ratings for the unfitting right shoulder, neck, and upper back conditions are addressed below. The contended eye condition is not in the purview of the board. Any conditions not requested in this application or otherwise outside the Board’s defined scope of review remain eligible for consideration by the respected Service Board for Correction of Military Records.



RATING COMPARISON:

Service PEB – Dated 20011101
 VA - (15 Mos. Post-Separation
Condition
 Code Rating Condition Code Rating Exam
History of Recurrent Shoulder Dislocations…
 5299-5202 20% Right Shoulder Separation 5201 20% 20030307
Chronic Neck and Upper Back Pain…
 5299-5295 0% DDD and Arthritis C-Spine* 5293-5290 10% 20030307
Not Unfitting No VA Entry
No Additional MEB/PEB Entries
 Other x 4 20030307
Combined: 20%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 30402 ( most proximate to date of separation [ DOS ] ) with DRO .
* Original VARD Klippel-Feil Cervical Fused Vertabra coded 5290 NSC was changed by 20031216 DRO decision (combined 30%) effective 20011123 as charted above.


ANALYSIS SUMMARY: The Board acknowledges the CI’s contention of a worsening left eye condition, but notes that the scope of its recommendation does not extend to conditions which were not considered by the PEB. The Board is subject to the same laws for Service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Right Shoulder Condition. The CI had a history of a hyperextension injury to the right shoulder with multiple episodes of dislocations (spontaneously self-reduced) since age seventeen. Shortly after enlistment, the CI had two separate right shoulder injuries. He developed acute onset of right shoulder pain while throwing a hand grenade and pulled his right shoulder in an APC motor vehicle accident in 1994. Despite aggressive physical therapy (PT) and continued limited duty, the CI repeatedly complained of frequent right shoulder dislocations with spontaneous self-reductions. Magnetic resonance imaging (MRI) revealed an anterior tear of the right labrum and a partial tear of the rotator cuff or tendonitis. In October 1999, the CI’s torn labrum was surgically repaired. The service treatment record (STR) revealed limited post-operative PT. The CI continued to report right shoulder pain and feelings of spontaneous dislocations (not evidenced on X-ray) which became incompatible with the physical demands of his MOS. The shoulder exams and goniometric range-of-motion (ROM) in evidence which the Board weighed in arriving at its recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Shoulder ROM
(Degrees)
 MEB ~7 Mo. Pre-Sep
DD 2808 ~8 Mo. Pre-Sep		 MEB Addendum ~2 Mo. Pre-Sep VA C&P ~ 15 Mo. Post-Sep
Flexion (180)
 120 1 10 95
Abduction (180)
 80
90
70
Comments
 N eg ative DeLuca “slippage of G-H joint” + painful motion ; strength 4-5/5
§4.71a Rating
 20 % 20% 20 %

The narrative summary (NARSUM) performed 7 months prior to separation; the CI reported feelings of subluxation (dislocation) with certain movements and also a loss of ROM of the right shoulder. The MEB physical exam , as well as an addendum of the MEB 5 months later, reported g lobal limited ROM of the right shoulder as describe above. Strength, sensation and reflexes were normal. The DD Form 2808 examination conducted approximately 3 weeks prior to the MEB specifically identifies slippage of the glenohum er al joint. At the VA Compensation and Pension (C&P) exam performed 15 months after separation, the CI reported “ daily right shoulder pain with alternating pain intensity but the front of the joint is always sore. ” He reported the inability to l ie on his stomach with his arm above his head or the ability to extend his right arm up or throw things anymore. Additionally, he reported the ability to use his right arm and hand without limitation when it is held in the adducted position close to his body. The examination revealed limite d and painful ROM.

The Board directs attention to its rating recommendation based on the above evidence. Both the Service and VA rated the right shoulder at 20% using different codes. The VA utilized 5201 (arm; limitation of motion) and cited, “The benefit is given to you in this case in assigning the 20 percent based on the fact your limited range of motion was more than shoulder level.” The Service utilized analogous code 5299-5202 (humerus; impairment) and cited glenohumeral joint slippage finding identified on the DD Form 2808 exam form (with guarding of movement only at shoulder level) [of note, the source C&P exam noted active abduction to 70 degrees]. Having shoulder abduction ROM at or below 90 degrees clearly meets criteria of 20% minimum rating under code 5201. The 30% level is not met by achieving movement above halfway between side and shoulder level. The Board considered the Service code of 5202 at 20% or 30% under the closely identified recurrent dislocation of a scapulohumeral joint as being most closely related to the identified slippage of the glenohumeral joint. There was no evidence of guarding of all arm movements and thus not meeting the 30% criteria. The 20% minimum criterion was met having infrequent episodes and avoidance of certain arm movements. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right shoulder condition.

Chronic Neck and Upper Back Pain. The CI’s entrance physical provided a history of an asymptomatic congenital cervical fusion anomaly of C6 and C7 for which the examiner stated, “no problems” with the congenital condition. In 1995, the CI developed upper back and lower neck (cervicothoracic junction) pain with occasional radicular symptoms into his back and upper extremities. Radiographic exams revealed “C6-C7 partial fusion, consistent with known Klippel-Feil congenital anomaly as well as a mild C5-C6 disc bulge, producing mild central canal stenosis of doubtful clinical significance.” The PEB analogized the chronic neck pain and upper back pain diagnoses under a single code of 5299-5295 (lumbosacral strain) under the 2002 spinal rules that were in effect at the CI’s date of separation. For the reader’s convenience, the 2002 rating codes under discussion (prior to September 2002) in this case are excerpted below.

5290 Spine, limitation of motion of, cervical:
Severe........................................................ 30
Moderate....................................................20
Slight........................................................ 10
5291 Spine, limitation of motion of, dorsal:
Severe........................................................ 10
Moderate................................................... 10
Slight........................................................ 0
5292 Spine, limitation of motion of, lumbar:
Severe........................................................ 40
Moderate...................................................... 20
Slight........................................................ 10
5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief................... 60
Severe; recurring attacks, with intermittent relief........... 40
Moderate; recurring attacks............................................. 20
Mild................................................................................... 10
Postoperative, cured........................................................... 0
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 osteoarthritic 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 Board considered the PEB’s disability description indicated an unfitting “upper back” condition (thoracic “dorsal” spine) and a neck (cervical condition) that existed prior to service (EPTS). Although VASRD §4.71a permits combined ratings of two or more joints under certain circumstances, it allows separate ratings for separately compensable joints; and, IAW DoDI 6040.44, the Board must follow suit if the PEB combined adjudication is not compliant with the VASRD. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate fitness and rating determinations. If the Board judges that two separate ratings are warranted in this case, it must satisfy the requirement that each “unbundled” condition was reasonably unfitting. 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 PEB Disability Description was:

Chronic neck and upper back pain without any history of trauma/injury with entry physical report of congenital fusion of C6/7. Neurological examination concluded that the back pain was of musculoskeletal nature. The physical exam noted flexion to 6 inches from the floor with 20 degrees of extension. Back x-rays are reported as normal. The neck x-rays confirm the congenital fusion. Rated for the back. (The neck would be considered existed prior to service - EPTS. The two conditions are grouped under this code as they are grouped on the DA 3947 and the Narrative Summary – NARSUM treats them as one.)

The Board’s analysis and recommendations regarding the separate fitness issue and potential separate ratings for each condition entrained in the PEB’s combined rating approach is addressed below:

Chronic Neck Pain. The neck exams and goniometric ROMs in evidence which the Board weighed in arriving at its recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

“ “ “
Cervical ROM (Degrees)
 MEB ~ 7 Mo. Pre-Sep VA C&P ~15 Mo. Post-Sep
Flex
chin 2” from the chest” 34
Extension
30 40
R Lat Flexion
full” 35
L Lat Flexion
full” 40
R Rotation
60 65
L Rotation
60 63
Comment:
 + tender U/T-spine & L/C-spine Painful motion: flex “ sl limited ” ; ext “ moderately limited ”
§4.71a Rating
 10% 10%

The narrative summary (NARSUM) note s the CI ha d daily pain with radiation down his back and occasionally down to both hands with duration of 5 minutes. Symptoms were reported worse with sneezing and or rapid neck movements. He was unable to run, wear a ruck, Kevlar or load bearing equipment ( LBE ) for prolonged periods. Additionally, he ha d pain with firing weapons. The MEB physical exam reported midline palpatory tenderness to the upper thoracic and lower cervical spine. Strength, sensation and reflexes of the upper extremities were normal. ROMs and the exam are summarized above. The CI had a U3 profile listing neck and back pain, and the commander’s comments did not note any specific diagnosis, and stated the CI “has been injured in the course of his duties to such as extent that the only function he can accomplish is light indoor duties without pain, including physical training. ” The DD Form 2808 physical revealed tenderness with “C5-T2 limited forward movement of neck. ” Entry physical documented “C6-7 Fusion – Full recovery” and no pain or limited motion was recorded. At t he VA C&P exam , 15 months remote from separation the CI complained of chronic neck pain, episodic spasm and pain that “sometimes keeps him awake.” He was taking Tylenol and related he had some injections for the pain. The CI related a history of Klippel-Feil Syndrome and the examiner found no neck shortening, hairline changes or other fasciculate symptoms – “presents none of these criteria. ” Cervical ROMs were pain-limited as summarized above. The examiner ’s conclusion was “Post - traumatic mechanical neck pain with early degenerative changes and mildly bulging disc at C5-6, resulting in chronic painful neck muscle spasm, with persistent slight limitation of motion and function. ” The thoracic and lumbar spines were combined with noted normal non-painful ROMs and no final thoracic or lumbar diagnosis.

The Board directs attention to its recommendations based on the above evidence. The Board first considered whether the chronic neck pain condition remained separately unfitting, having been decoupled from the combined PEB adjudication. The Board acknowledged the asymptomatic congenital neck anomaly as identified on the CI’s entrance examination and understood the natural progression of the condition could result in limitations of neck and back range of motion as well as pain. A review of current literature (Genetics; US National Library of Medicine, 2011) cites, “Often the vertebral problems in this congenital syndrome do not cause health problems until aggravated by a spinal injury, such as a fall or car accident.” The Board discussed the probability of the CI’s congenital condition in and of itself being the natural etiology of his progressive pain symptomatology vice other causative external factors. All members agreed that in this case the development of chronic neck pain was more likely than not a result of permanent aggravation of the identified EPTS condition caused by the CI’s APC (M-113) vehicle accident in 1994. The CI’s injury was described as a “pulling” of his right shoulder and anatomically, the neck and upper thoracic muscles were likely involved as well. Additionally, the STR reveals the onset of neck and back complaints historically recorded as beginning at or near the time of the CI’s (APC) motor vehicle accident. Nearly half of his profile restrictions were active secondary to neck pathology and pain. After due deliberation, the Board agreed that the functional limitations in evidence from the chronic neck pain condition, would have reasonably rendered the CI incapable of continued service within his MOS; and, accordingly merits a separate rating is recommended. From an anatomical point of view, the 2002 VASRD coding related to the lumbosacral spine code 5295 (cited in PEB) is not a good alignment when the presenting subjective symptoms involved the cervicothoracic spine. The Board considered codes 5290 (limitation; cervical spine) and 5293 (Intervertebral disc syndrome) as more appropriate codes in lite of limited cervical ROMs and radiographically identified bulging C5-C6 disc. The Board deliberated if the CI’s overall disability picture of limited cervical ROM near the time of his separation met 10% (slight) or 20% (moderate) under code 5290, or rose to the 20% rating level under code 5293. All exams demonstrated limited cervical ROM. There was no evidence of limited cervical motion or painful motion on Service entry, and any EPTS deduction would be 0% or undeterminable (UND). Therefore, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends an unfitting chronic neck pain condition coded 5290 at 10% with no (0% undetermined) EPTS deduction.

Upper Back Pain. The Board first considered if the upper back (thoracic “dorsal” spine) condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. The CI’s entrance physical provided a history of a “fully recovered” back strain from a 1990 motor vehicle accident. Four years later, his upper back pain began shortly after another motor vehicle (APC) accident when he also injured his right shoulder. Additionally, June 1999, Neurology assessed, “Back pain of musculoskeletal in nature.” The CI was not placed on profile restrictions for mid-back symptoms alone; however, the NARSUM indicated tenderness with “C5-T2 limited forward movement of neck” indicated cervical and upper thoracic “dorsal” spine limitations. There were no thoracic-spine specific ROMs in evidence prior to separation.

The Board directs attention to its recommendations based on the above evidence. There was a paucity of STRs that specifically documented upper back pain as the sole complaint and or area of complete examination. Rather, the majority of STRs reflected upper back symptoms in conjunction with shoulder or neck pain and more often than not, the objective findings were consistent with muscle tenderness or associated spasms Members agreed that, based on the above evidence, there was a questionable basis for arguing that it was separately unfitting. The well-established principle for fitness determinations is that they are performance-based. The Board could not find sufficient evidence in the commander’s statement or elsewhere in the Service file that documented any significant interference of the upper back condition with the performance of duties at the time of separation. It should also be noted that there is insufficient evidence in support of a compensable rating for the thoracic “dorsal” spine even if were conceded as unfitting. After due deliberation, the members agreed that the evidence does not support a conclusion that the functional impairment from the upper back was reasonably integral to the CI’s inability to perform his MOS; and, accordingly cannot recommend a separate rating for it.


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. In the matter of the history of recurrent shoulder dislocation condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the Service-combined chronic neck and upper back pain condition, the Board unanimously recommends that it be rated for an unfitting chronic neck pain condition coded 5290 with a disability rating of 10% IAW 2002 VASRD §4.71a., and an upper back condition determined to be not independently unfitting and thereby not subject to the disability rating. 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
History of Recurrent Shoulder Dislocations
 5299-5202 20%
Chronic Neck Pain
 5290 10%
COMBINED
 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120715, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130009505 (PD201201338)

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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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