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AF | PDBR | CY2013 | PD 2013 00877
Original file (PD 2013 00877.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-00877
BRANCH OF SERVICE: Army  BOARD DATE: 20120711
SEPARATION DATE: 20070117


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SGT/E-5 (11B/Infantry) medically separated for a chronic back pain and chronic pain left knee and a left shoulder condition. Symptoms did not improve adequately with conservative measures to meet the physical requirements of his Military Occupational Specialty, although he could perform an alternate physical fitness test. He was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB). The orthopedic conditions characterized as “chronic low back pain, chronic left knee pain and chronic left shoulder pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “chronic back pain as unfitting rated 10% and chronic left knee and left shoulder condition as a single unfitting condition rated 10%, IAW US Army Physical Disability Agency (USAPDA) pain policy. The CI did not agree with the findings and appealed to the Formal PEB. He submitted a rebuttal which was reviewed by the United States Army PEB (USAPEB). The USAPEB affirmed the PEB findings and ratings and the CI withdrew his non-concurrence and was medically separated with a 20% combined disability rating.


CI CONTENTION: “The CI elaborated no specific contention in his 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 back, left knee and left shoulder conditions are addressed below and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20061205
 VA - (3 Mos. Post-Separation
Condition
 Code Rating Condition Code Rating Exam
Chronic Back Pain 5299-5237 10% DDD Lumbar Spine 5242 10% 20070403
Chronic Left knee and Left Shoulder Pain 5099-5003 10% Patellofemoral Pain Syndrome, Left Knee 5099-5010 10% 20070403
History of Rotator Cuff Tear Left Shoulder 5201 Not Service Connected
Other MEB/PEB Entries x0 (in Scope)
 Other x 2 20070403
Combined: 20%
 Combined: 40%
Derived from VA Rating Decision (VA RD ) dated 20070924 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation and, to review those fitness determinations within its scope consistent with performance-based criteria in evidence at separation. The Board noted that the PEB bundled the unfitting left knee and shoulder conditions and will unbundle these conditions for fitness determinations and rating considerations.

Chronic Back Condition. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

DOS 200 70117
Thoracolumbar ROM
(Degrees)		 NARSUM ~ 2 Mo. Pre-Sep
(20061120)
VA C&P ~ 3 Mo. Post-Sep
(20070403)
Flexion (90 Normal) 7 0 w/pain 70
Extension (30) 20 w/pain 10
Combined (240) 208 200
Comment 0 incapacitating episodes 0 incapacitating episodes
§4.71a Rating 10% 10%
invalid font number 31502
The CI described sustaining a lower back injury from a roadside bomb explosion while deployed June 2005. A magnetic resonance image (MRI) of the lower back demonstrated a disc bulge at vertebral bone level L5-S1 that moved the spinal cord sac on the left to the side and mild facet joint hypertrophy. An electrical nerve conduction study of the lower back on 30 June 2006 was normal showing no peripheral nerve injury. On 20 November 2006, 2 months prior to separation, the narrative summary (NARSUM) examiner recorded the goniometric measured ROM of the back as noted in the table above and mild paraspinous muscle tenderness and spasm. The VA Compensation and Pension (C&P) completed on 3 April 2007, 3 months after separation describes the CI’s gait and posture as normal and recorded the spine ROM noted on the table above. The service treatment record was silent as to any episodes of incapacitating episodes due to LBP.

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated a rating of 10% for chronic back pain, without neurologic or electro-diagnostic abnormality, finding thoracolumbar ROM limited by pain with localized tenderness, using codes 5299-5237 (spine) rated alternatively as lumbosacral strain. The VARD, using code 5242 (degenerative arthritis of the spine), found the CI had degenerative disc disease of the lumbar spine with a mild disc bulge and adjudicated a rating of 10%. The Board considered and agreed the evidence in the record supported a rating for limited ROM of 10% under either code 5243 lumbosacral strain or 5242 (degenerative arthritis with flexion greater than 60 degrees but less than 85 degrees or combined ROM of greater than 120 degrees but less than 335 degrees), with or without symptoms such as pain (whether or not it radiates) noting that the NARSUM identified muscle spasm on examination but no adverse effect on gait or posture. The Board then considered a rating considering code 5003 (degenerative arthritis) IAW §4.59 and determined the back condition would not rise in rating above 10%. The Board next considered a rating under code 5243 (incapacitating episodes/intervertebral disc syndrome). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed and treated by a physician. The record documents no incapacitation under this definition in the 12-month period prior to the MEB examination. The Board agreed that no rating could be recommended under this code. The Board considered a rating IAW §4.123 (neuritis, peripheral nerve) and agreed there was no evidence for ratable peripheral nerve impairment in this case, since no motor weakness was present, nerve conduction studies were negative and sensory symptoms had no functional implication. The Board found no other appropriate codes for consideration. After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus was that a disability rating of 10% for the lower back condition was appropriately recommended in this case. The Board now undertook an evaluation of the bundled shoulder and knee conditions.

Chronic Pain Left Knee. The Board first undertook consideration of whether the chronic left knee pain condition was unfitting. The NARSUM listed the knee pain condition as one of the conditions rendering the CI unable to meet his mission requirements and unfit for retention. The knee condition was listed in the final permanent profile. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that the record reasonably supported the left knee condition to be unfitting upon unbundling from the shoulder condition.

The CI injured his left knee when a roadside bomb struck his vehicle while on patrol. An MRI of the left knee requested for locking and pain was completed on 1 June 2006 and described a small lump in back of the kneecap probably due to a childhood condition; otherwise the imaging study was normal. The MEB physical examination completed on 25 September 2006 recorded knee pain with heel or toe walk and inability to squat due to knee pain. The knee was found to be stable and no other deficits were noted. The NARSUM recorded flexion to 85 degrees (normal 140), with patellar grind and mild swelling. The VA C&P noted a normal gait, full range of knee motion without pain and the knee was found to be stable.

The Board directs attention to its rating recommendation based on the above evidence. The Informal PEB (IPEB) bundled the left knee condition with the upper extremity condition and adjudicated a rating of 10% citing ROM limited by slight/constant pain using code 5099-5003. The VARD adjudicated patellofemoral pain syndrome of the left knee using code 5099-5010 (arthritis due to trauma). The Board noted the differences in evaluations of the knee in the C&P and the NARSUM. The Board noted that the range of flexion found in the C&P examination would not reach criteria for a rating and the degrees of flexion described in the NARSUM would allow the Board to adjudicate no more than a 0% rating using code 5260 (limitation of knee motion). The Board alternatively considered code 5003 degenerative arthritis and agreed that the criteria for pain on motion was met and reached the threshold for a rating of 10%. The Board further noted that using code 5010 (arthritis due to trauma), would reach the criteria for a rating no higher than the 10% found using code 5003 (motion limited by pain) and found no advantage to changing the code adjudicated by the IPEB. The Board noted there was no basis for considering code 5257 (knee instability) or code 5257 (dislocated semilunar cartilage) absent evidence of either finding. 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 left knee pain condition.

Chronic Left Shoulder Pain. The Board first undertook consideration of whether the chronic left shoulder pain condition was unfitting. The medical retention battalion executive officer did include the left shoulder in his comments. The NARSUM described the left shoulder pain condition as one of the conditions rendering the CI unable to meet his mission requirements and unfit for retention. The condition was listed in the final permanent profile. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that the record reasonably supported the left shoulder condition to be unfitting upon unbundling from the knee condition.

The right hand dominant CI injured his left shoulder during unit training. An MRI, performed in June 2006 noted moderately advanced changes of the acromio-clavicular joint. He was treated conservatively without surgery. The physical therapy examination on 26 June 2006 recorded shoulder flexion 90 and abduction 80. The MEB examination noted pain with motion of the shoulder, decreased strength of 4/5, describing no instability of the shoulder and recorded flexion of 110 degrees and abduction to 110 degrees. The NARSUM dictated in November 2006, based on an examination performed on 6 October 2006, (not found in the record) described the following ROM for the left shoulder: forward flexion 0-85 degrees (180 normal), abduction 0-85 degrees (180 normal), external rotation 45 degrees (90 normal) and internal rotation 55 degrees (90 normal). The C&P examination recorded the following ROM: forward flexion 90 degrees, abduction 90 degrees, external rotation 90 degrees and internal rotation 90 degrees. The C&P examiner reported pain with motion and fatigue with repetition but was silent as to stability.

The Board directs attention to its rating recommendation based on the above evidence. The IPEB bundled the left shoulder condition with the lower extremity condition and adjudicated a single rating of 10% citing ROM limited by slight/constant pain using code 5099-5003. The VA adjudicated that the shoulder condition was not service-connected. The Board noted that there was no ankylosis of the shoulder joint to justify consideration of scapulohumeral ankylosis using code 5200 in consideration of instability. Considering an adjudication using code 5201, (limitation of motion), the Board noted the differences in evaluations of the ROM evaluations noted in the MEB, the NARSUM and the C&P examinations. The Board held that the NARSUM and C&P examinations as supported by the evidence of the service treatment record held greater probative value than a single conflicting MEB examination. The Board ruled that the inability to flex the arm above shoulder level supported a rating of 20% with application of code 5201 IAW §4.71a. The Board alternatively considered using code 5203, impairment of the clavicle, and determined there would be no additional benefit to the CI as the criteria for no more than a rating of 10% could be recommended without loose movement. The Board found no other appropriate codes for consideration. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the left shoulder pain 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 DoDI 1332.39 for rating the back, left knee and left shoulder conditions were operant in this case and the conditions were adjudicated independently of that policy by the Board. In the matter of the chronic back condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a. In the matter of the chronic pain left knee condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.59. In the matter of the chronic left shoulder pain condition, the Board unanimously recommends a disability rating of 20%, coded 5201, IAW §4.71a. 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
Chronic Back Pain 5299-5237 10%
Chronic Pain Left Knee 5099-5003 10%
Chronic Left Shoulder Pain 5021 20%
COMBINED 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130617, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20140019651 (PD201300877)


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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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