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AF | PDBR | CY2013 | PD-2013-01327
Original file (PD-2013-01327.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01327
BRANCH OF SERVICE: Army  BOARD DATE: 20150505
SEPARATION DATE: 20040213


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Motor Transport Operator) medically separated for right shoulder and neck pain. These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB). The “right shoulder pain with decreased range of motion, strength, and pinprick sensation” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB, but the PEB derived neck pain from the record. The Informal PEB adjudicated right shoulder and neck pain together as unfitting rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: “The condition was ignored until I was medically discharged. The Veterans Administration has this disability rated at 70% currently I am rated a total of 80% through VA but am receiving individual unemployability due to this disability and one other directly relating to this disability. I also receive Social Security disability for the same disabilitys [sic].”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any condition outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


 RATING COMPARISON :

IPEB – Dated 20031230
 VA* - (~6 Years Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Pain, Right Shoulder… 5099-5003 10% Right (Major) Shoulder Tendinopathy… 5299-8513 70% 20091119
Chronic Pain, Neck… No VA Placement
Other x 0 (Not In Scope)
 Other x 2
RATING: 10%
 RATING: 70%
* Derived from VA Rating Decision (VA RD ) dated 20 100113 (most proximate to date of separation ( DOS ) )


ANALYSIS SUMMARY. The PEB adjudicated the right shoulder and neck pain as a single unfitting condition rated as 5099-5003 (analogous to arthritis) at 10%. The PEB relied on the USAPDA pain policy for not applying separately compensable VASRD codes. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD rating guidelines. 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. 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. Additionally, the Board notes there is minimal evidence in record and both the shoulder and neck conditions are addressed together in the introduction to avoid clerical redundancy, followed by individual history and examination findings, the unbundling discussion, and if appropriate, individual ratings.

Right Shoulder and Neck Conditions. The MEB NARSUM examination dated 11 December 2003 was based on two exams: the DD Form 2808, Report of Medical Examination, dated 30 October 2003, which is in the record of evidence and an evaluation dated 6 November 2003, which is not in the record.

The MEB narrative summary (NARSUM) noted during physical training in December 2001 the CI was jumping to catch a ball [football], but had his legs taken out from under him and landed on the ground on the side of his head and dominant right shoulder. The CI was given non-steroidal anti-inflammatory medication, placed on profile, and sent to PT. There was no significant improvement and over the next year the CI was seen several times and treated conservatively. In December 2002 after a fainting spell, neck X-rays were performed and read as normal. The CI was referred to a pain clinic for treatment of shoulder and neck pain and was treated there for several months. Imaging studies noted by the MEB NARSUM and DD Form 2808 included normal right shoulder X-rays 20 December 2001 and 22 January 2003; cervical X-rays 3 December 2002 noted disc narrowing at C5-C6 and MRI 14 December 2002 were normal. Additionally an MRI of the right shoulder 13 March 2003, noted supraspinatus tendinopathy, a partial rotator cuff tear, and degenerative changes of the shoulder and acromioclavicular joints. The CI was treated with multiple medications for pain relief, nerve blocks, shoulder injection, and cervical epidurals without lasting benefit. The CI had right shoulder arthroscopy in August 2003 and the shoulder was reportedly normal.

Right Shoulder Condition. On the DD Form 2807, Report of Medical History, dated 30 October 2003 the CI reported pain in the shoulder with tingling and sometimes numbness. He reported he could not “make full motions” with his right arm and had difficulty sleeping. At the MEB NARSUM examination, 2 months before separation, the CI reported throbbing, stabbing, midline cervical pain that radiated to the top of the right shoulder with occasional right hand numbness. The CI reported he was unable to do push-ups and he could not hold a salute for a prolonged period of time due to extreme shoulder pain. The examination noted painful shoulder range of motion (ROM). The dominant right upper extremity (RUE) strength was decreased compared to the left, graded as 4/5 and there was decreased sensation of the right hand with normal RUE reflexes. Goniometric ROM of the shoulder was flexion of 80 degrees (normal 180) and abduction of 75 degrees (normal 180). The DD Form 2808 examiner, 4 months prior to separation, noted that the CI was unable to push against resistance with the right elbow due to pain and the right forearm and grip strength were noted to be decreased, with “good triceps” and “pretty good biceps.” RUE reflexes were reported as biceps 3/5 and triceps 5/5. There was bilateral scapular tenderness and tenderness of the thoracic muscles. The examiner noted decreased sensation over the top and palm aspects of the thumb side of the hand and the top of the hand near the little finger.

The VA Compensation and Pension (C&P) exam performed 6 years after separation was too remote from the date of separation to have probative value in the Board’s recommendations for disability rating at the time of separation. However, it is summarized here briefly because it supports the objective findings in the limited Service evidence available at the time of separation. The VA C&P examination noted the CI was right hand dominant and he reported constant shoulder pain with weakness and occasional swelling, decreased sensation of the right hand consistent with that noted at the MEB NARSUM exam, and numbness and pain of the right scapula and shoulder. The C&P exam noted weakness of the RUE, normal reflexes and decreased sensation of the neck, chest, upper back, shoulder and top of the hand over the long and ring fingers. Shoulder ROM was flexion of 90 degrees with pain and abduction of 70 degrees with pain. No additional loss of ROM was noted with repetition.

Neck Condition. At the MEB NARSUM examination, 2 months prior to separation, the CI reported neck pain radiating to the RUE with occasional numbness of his hand. The examination noted RUE exam as noted above and the DD Form 2808 exam, 4 months prior to separation, noted cervical ROM of flexion of 40 degrees (normal 45), extension of 15 degrees (normal 45) and left and right rotation of 40 degrees (normal 80). The examiner also noted the CI had 2 year history of neck and shoulder pain with decreased RUE strength and sensation, and decreased shoulder ROM. On the DD Form 2807, the CI reported neck pain since his fall in December 2002 (fainting) that caused headaches and difficulty sleeping. The examiner made additional notes on the DD Form 2807 and indicated the CI reported his neck muscles got tight and gave him a headache twice per week that did not cause him to miss work. Electrodiagnostic studies (EMG) April 2003 were read as “essentially normal”, with a finding that was nonspecific, but that can be seen in spinal arthritis or early radiculopathy.

The VA Compensation and Pension (C&P) exam request 16 October 2009 indicated the CI was claiming a right shoulder, arm and hand conditions. The VA C&P exam 19 November 2009 did not address the neck condition.

The Board first reviewed to see if the shoulder and neck pain was a single condition or represented two conditions which could each be reasonably justified as separately unfitting from the PEB’s combined adjudication. The commander’s statement noted that the CI’s neck and shoulder problems limited his duty performance and the permanent profile listed “right shoulder pain/cervical pain.” However, the evidence in record at the time of separation, as well as the remote VA C&P, does not provide any evidence that there was a discretely identifiable neck condition that caused disability that did not overlap with the disability due to the shoulder injury. The CI reported neck muscle tightness caused pain and headaches and on the DD Form 2808 exam, scapular pain and spasm of right upper back muscles were noted and attributed to the shoulder condition. These muscles and soft tissue are in close anatomical proximity with some some upper back muscles spanning the upper back, shoulder, and the neck. The Board consensus was that the medical evidence in this case supported an injury at the level of the shoulder which resulted in shoulder and neck pain, muscle spasm, and RUE weakness and sensory disturbances. The Board concluded that the neck pain could not be separated from the shoulder condition and rated as a separate condition IAW VARSD §4.14 (avoidance of pyramiding) which says “the evaluation of the same disability under various diagnoses is to be avoided” and “…the evaluation of the same manifestation under different diagnoses are to be avoided.” Therefore, the Board consensus was that the right shoulder pain and cervical pain could not be unbundled and the CI’s disability at the time of separation was appropriately considered as a single unfitting condition.

The Board next directed its attention to its coding and rating recommendations based on the above evidence. The PEB rated the “chronic pain, right shoulder and neck” condition 10%, and cited the USAPDA pain policy as noted above. The original VA Rating Decision dated 13 January 2010 was 6 years after the date of separation. At that time the VA provided a 70% rating for the right shoulder degenerative changes and included the RUE weakness and sensory findings, coded as 5299-8513 (analogous to incomplete paralysis of all radicular groups) for “severe” incomplete paralysis of the dominant arm IAW §4.124a (neurological conditions). The Board first considered coding the shoulder IAW §4.71a (musculoskeletal conditions). Members agreed that based on ROM evidence the condition met a 20% rating coded as 5201 for limited arm motion “at shoulder level,” by Board practice taken to be 90 degrees of shoulder flexion or abduction. The Board reviewed to see if a higher evaluation was achieved with any §4.71a code, but there was no evidence of ankylosis, or impairment of the humerus, clavicle or scapula to provide a higher rating. The Board also noted that if alternatively rated as a neck condition coded as 5242 (degenerative arthritis of the spine), the §4.71a rating based on the VASRD rules for rating the spine in effect on the date of separation would result in a 10% rating for neck flexion for 40 degrees. There was no value provided for right and left lateral flexion of the neck to determine the combined ROM of the neck, but if the greatest latitude is provided and those ROMs are assumed to be 0 degrees, coding as a neck condition provides a 20% rating and no higher. The EMG noted a nonspecific finding but there was no MRI evidence of a cervical radiculopathy or incapacitating episodes due to the neck condition to provide higher or additional rating.

The Board next considered rating IAW §4.124a and members agreed that the evidence provides support for this approach based upon mild weakness and objective sensory disturbances of the RUE that involved multiple upper extremity nerves noted during the DD Form 2808 and NARSUM exams. Although there was no evidence in the records before the Board that a diagnosis of nerve injury was conferred during the service, there was objective RUE neurological findings documented which was consistent with the mechanism of injury as described: landing forcefully on the right side of the head and shoulder, with the arm abducted. Based on the medical evidence the Board opined that the fall likely resulted in injury to the brachial plexus, a bundle of the cervical and upper thoracic nerves which travel from the neck to the arm. Therefore, the Board consensus was that coding IAW §4.124a was a valid approach to rating the CI’s disability due to this condition, which included pain and mild motor and sensory deficits. The Board next deliberated the best nerve code to rate the disability. There was evidence of involvement of more than a single nerve or radicular group based on reduced shoulder ROM, slightly reduced biceps strength and biceps reflex, and the weak grip and decreased sensation noted in the hand. Thus, the Board concluded that coding analogously as 8599-8513 (all radicular groups) was the most appropriate and considered the rating criteria of 8513, which are subjective with 20% for mild, 40% for moderate and 70% for severe incomplete paralysis. On the DD Form 2807, the CI reported pain and reduced ability to `make full motions’ with his arm and at the NARSUM exam he reported difficulty holding his arm at shoulder level for prolonged periods due to pain. Mild RUE weakness and limited areas of decreased sensation were noted in the hand at the DD Form 2808 exam. The CI did not report difficulty with gripping or dropping objects due to numbness or weakness. The Board consensus was that the evidence supports characterizing the disability due to the neck and shoulder condition at the time of separation as mild, meeting a 20% rating coded as 8599- 8513 for the dominant RUE. Therefore, the Board agreed that a 20% rating was achieved coded either as 5201 IAW §4.71a or as 8599-8513 IAW §4.124a, but the evidence did not support a higher evaluation with any coding approach. The Board chose to code as 8599-8513 because it encompassed the disability due all of the CI’s noted impairment due to the “chronic pain, right shoulder and neck” condition. After due deliberation, considering all of the evidence and mindful of VASRD 4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the shoulder and neck pain condition, coded 8599-8513.


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 shoulder and neck pain condition was operant in this case and the condition was adjudicated independently of that policy by this Board. In the matter of the shoulder and neck condition, the Board unanimously recommends a disability rating of 20%, coded 8599-8513 IAW VASRD §4.124a. 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, effective as of the date of his prior medical separation:

CONDITION VASRD CODE RATING
Chronic Right Shoulder and Neck Pain Condition 8599-8513 20%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130912, 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, AR20150011093 (PD201301327)


1. 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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation. This decision is final.

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.

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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