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AF | PDBR | CY2012 | PD2012 01875
Original file (PD2012 01875.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1201875        
BRANCH OF SERVICE: Army  BOARD DATE: 20140116
SEPARATION DATE: 20061211


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (52D20/Power Generator Equipment Repairer) medically separated for chronic pain right (dominant) shoulder, status post(S/P)-surgery for slap injury and chronic back pain, S/P T1-T5 posterior fusion for T3 burst fracture, without neurologic deficit. The CI was thrown approximately 30 feet from a telephone pole secondary to an electrical shock while repairing a generator while deployed to Iraq in 2003. He sustained multiple injuries including his right shoulder, left knee, thoracic spine and a burn wounds to the left shoulder and right thigh. He had surgery to all these areas and continued to have right shoulder and spine pain that interfered with military duty performance. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded spinal fusion T1 - T5 with pain (slight/frequent) and right shoulder pain (moderate/frequent) as failing retention standards IAW AR 40-501. The MEB also forwarded reactive airway disease, left knee pain and S/P electric shock burn conditions to the Physical Evaluation Board (PEB) as medically acceptable. The informal PEB adjudicated chronic pain right (dominant) shoulder, S/P-surgery, and chronic back pain, S/P T1-T5 posterior fusion for T3 burst fracture without neurologic deficit and range-of-motion (ROM) limited by pain, both as unfitting rated at 10% and 0% respectively, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy and the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting and not rated. The CI appealed to the Formal PEB (FPEB), which affirmed the PEB finding and rating with respect to the back pain, but raised the rating for the right shoulder condition to 20% with further application of the USAPDA Pain policy. The CI was medically separated with a combined 20% disability rating.


CI CONTENTION: “The rating should be reviewed and changed due to me being given twenty percent for moderate/frequent shoulder pain and zero percent for slight/frequent back pain. My shoulder was my right and caused issues due to me being right hand dominant, and was worsened by doing repetitive motions which were a part of normal daily functions. The back condition was more severe than originally stated due to the loss in range of motion resulting from the spinal fusion surgery. There is evidence of loosening of the hardware inserted during the fusion surgery, and my VA doctor has sent me for X rays, MRl, and even a consult by the neurosurgeon. I was also experiencing numbness in my right arm when wearing any load bearing equipment on my shoulders wile [sic] in the military, and this continues to this day. Another major overlooked issue was the lack of investigating my PTSD issues, even though I had been seen at the mental health clinics at every duty assignment I had after the incident. . The last area which was not addressed was the lack of attention paid to the traumatic brain injury. I sustained from a fall of over twenty-five feet, and impacting on my head and right shoulder. This condition also has left me with migraines and an occasional dizzyness [sic] that I continue to experience to this day. Also asthma was another condition which was never reviewed even though they are shown throughout my medical records from my first duty station and I am still taking medications for this today.” The CI also attached a one page statement to his application which was reviewed by the Board and considered in its recommendations.


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 pain and back pain conditions are addressed below. The requested asthma condition, which was determined to be not unfitting by the PEB, is also addressed below. The requested posttraumatic stress disorder (PTSD), traumatic brain injury and migraine headache conditions were not identified by the PEB and are not within the DoDI 6040.44 defined purview of the Board. The left knee pain and burn wound conditions were not contended. 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 respective Board for Correction of Military Records.


 RATING COMPARISON :

Service FPEB (Admin Corrected) – Dated 20061027
 VA - (Exam ~ 3 Mos. Pre -Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Rt Shoulder Pain S/P SLAP Surgery 5099-5003 20% S/P t Shoulder Surgery & Clavicle Fracture w/Residuals 5201 20% 20060926
Chronic Back Pain S/P T1-T5 Fusion for T3 Burst Fracture 5241 0% S/P T1-T5 Spinal Fusion 5235-5241 20% 20060926
Reactive Airway Disease Not Unfitting Asthma* 6602 30%* 20060926
Left Knee Pain Not Unfitting S/P Lt Knee ACL Reconstruction w/
Degenerative Joint Disease		 5010-5003 10% 20060926
S/P Electric Shock Burn “Not A Diagnosis” Left Thigh Burn Scar Secondary To Electrocution 7804 10% 20060926
No Additional MEB/PEB Entries
 Other x 2 20060926
Combined: 20%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 70309 (most proximate to date of separation [ DOS ] ).
* VARD 20120719, rating effective 20110722.


ANALYSIS SUMMARY:

Right Shoulder Condition. A magnetic resonance imaging (MRI) of the right shoulder obtained 29 May 2003 after the trauma incident in Iraq revealed a mid-shaft fracture of the clavicle, but no injury to the shoulder joint. This clavicle fracture required no specific treatment and subsequently healed and the shoulder was treated conservatively. At a clinic visit on 21 December 2004, the CI reported right shoulder pain. Exam revealed full ROM and normal strength of the shoulder with pain, felt secondary to “shoulder impingement.” X-rays of the shoulder 6 May 2005 were normal. On 10 December 2005, the CI underwent arthroscopic evaluation of the shoulder for continued pain. A minimal tear of the rotator cuff with mild nerve impingement was found and debrided. A post op electromyogram study of the shoulder 13 December 2005 revealed no evidence of further nerve impingement. At a clinic follow-up on 20 January 2006 the CI reported minimal shoulder pain. On orthopedic evaluation on 11 July 2006 revealed ROM of the shoulder was noted as “full” with normal strength. Routine X-rays at this time remained normal. At the MEB/narrative summary (NARSUM) evaluation on 8 August 2006, 4 months prior to separation, the CI reported his shoulder was “stronger since surgery,” but pain was present with overhead movements and running. On physical exam, ROM of the shoulder revealed flexion reduced to 120 degrees and abduction to 105 degrees with painful motion (normal for both: 180 degrees). At the VA Compensation and Pension (C&P) exam performed 3 months prior to separation, the CI reported shoulder pain elicited by activity but relieved by rest and medication. He noted that he could function at the time of pain with medication and that the condition did not cause incapacitation. On examination, flexion and abduction were 90 degrees with pain. Motion of the shoulder was not additionally limited by fatigue, weakness or incoordination. The Board directs attention to its rating recommendation based on the above evidence. The PEB originally rated the shoulder condition 10%, increased to 20% by the FPEB using the Army pain policy, coded 5003. The VA rated the condition 20% code 5201 (limitation of motion), citing reduced flexion and abduction of 90 degrees. Under this code, a rating of 20% for the dominant arm requires a reduction of flexion or abduction to 90 degrees. A higher rating of 30% requires a reduction to 45 degrees. ROMs greater than 90 degrees are non-compensable. The Board noted the reduced ROM for the right shoulder on the C&P exam compared to prior proximate exams but found no evidence in the record to explain this decrease. The Board unanimously agreed the preponderance of evidence in the record supported a ROM for both flexion and abduction of greater than 90 degrees and could recommend a rating no higher than 0% under code 5201, IAW §4.32. The Board unanimously agreed the shoulder condition rose to the level of 10% IAW §4.59, painful motion. 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 shoulder condition.

Back Pain Condition. The CI sustained a compression fracture of the T3 vertebral body without neurologic injury which was stabilized, after medically evacuated to Germany, with a back brace. After transfer to CONUS and MRI and computed tomography scans of the area revealed the fracture to be complex and unstable and the CI underwent spinal fusion of vertebral bodies T1 through T5 with rods, screws and autologous bone grafts. This surgery successfully stabilized the condition which healed without instability or neurologic defect but with resultant pain on spinal motion. At the MEB/NARSUM evaluation on 8 August 2006, 4 months prior to separation, the CI reported mid back pain with lifting and movement. The MEB physical exam noted flexion of 77 degrees, limited by pain (normal: 90 degrees) with normal motor and sensory examinations. At the VA C&P exam on 26 September 2006, 3 months prior to separation, the CI reported mid-back pain with physical activity requiring narcotic medication for control. He stated that the condition did not cause incapacitation. On physical exam, posture, gait and curvature of the spine were normal. Forward flexion of the low back from the “attention” position was reduced to 45 degrees (normal 90 degrees) with associated low back pain and low back muscle spasm. Motor and sensory exams were normal. The Board noted a physical therapy evaluation for the PEB, dated 17 October 2006, 2 months prior to separation, where active flexion of the back was reported at 40 degrees without further reduction with repetitions.

The Board directs attention to its rating recommendation based on the above evidence. The Board unanimously agreed the back condition was compensable for reduced ROM IAW §4.71a in effect at the time of separation. A 10% rating requires a reduction of flexion to 85 to 60 degrees; a 20% rating, flexion reduction to 60 to 30 degrees and a 40% rating, flexion reduction to 30 degrees or less. The Board by a vote of 2:1 agreed that the predominance of evidence in the record supports a 20% rating for the back condition at the time of separation under code 5241 (spinal fusion). There was no evidence or ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication. There was no evidence of incapacitating episodes for a higher rating under code 5243 (incapacitating episodes). The Board found no other applicable VASRD codes for consideration. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 20% for the back condition.

Contended Asthma Condition. The Board’s main charge is to assess the fairness of the PEB’s determination that reactive airway disease (asthma) was not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The record noted several emergency department visits for shortness of breath with documentation of both wheezing and normal breath sounds. A presumptive diagnosis of asthma was made and the CI empirically treated with oral steroids and bronchodilators. At a clinic visit on 2 May 2006, 7 months prior to separation, the CI noted he was feeling “much better on medication.” Chest examinations were normal on both MEB and C&P exams. The asthma condition was not noted on any profiles, was not implicated in the commander’s statement and was not judged to fail retention standards. It was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that this condition, with treatment, interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the asthma condition and no additional disability rating is recommended.


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 right shoulder condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the right shoulder condition, the Board unanimously recommends a disability rating of 10% coded 5093-5003 IAW VASRD §4.71a and § 4.59. In the matter of the back condition, the Board, by a vote of 2:1, recommends a disability rating of 20% coded 5241 IAW VASRD §4.71a. The single voter for dissent (who recommended 10%) elected not to submit a minority opinion. In the matter of the contended asthma condition, the Board unanimously recommends no change from the PEB determination as not unfitting. 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; 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
Right Shoulder Pain 5009-5003 10%
Chronic Back Pain 5241 20%
COMBINED
 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121029, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review




SFMR-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, AR20140006519 (PD201201875)

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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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