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AF | PDBR | CY2013 | PD-2013-01414
Original file (PD-2013-01414.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01414
BRANCH OF SERVICE: ARMY          BOARD DATE: 20150710
SEPARATION DATE: 20040924


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active E-6 (Utility Equipment Repairer) medically separated for right shoulder pain, right knee pain, and neck pain. The 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 U3L3 profile and referred for a Medical Evaluation Board (MEB). The conditions, characterized as “right shoulder, acromioclavicular, joint degenerative arthritis,” “right shoulder type II superior labral tear,” “right knee degenerative arthritis,” and “C6-C7 level spondylosis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) combined the right shoulder (consolidating the related MEB submissions) and right knee diagnoses as a single unfitting condition, rated 10% IAW the US Army Physical Disability Agency (USAPDA) pain policy. The IPEB also adjudicated his neck condition as unfitting and rated it at 10% IAW AR 635-40. The CI appealed to the Formal PEB (FPEB), which affirmed the IPEB findings and ratings. The CI was medically separated.


CI CONTENTION: He was not evaluated for his post-traumatic stress syndrome (PTSD), asthma, or carpal tunnel conditions. His complete submission is at Exhibit A.


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 conditions 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/Naval 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 (delete if spelled out above) (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 :

Service FPEB – Dated 20040603
 VA - (6 Months Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Pain, Right Shoulder and Right Knee 5099-5003 10% … Right Shoulder … Arthritis 5099-5010 10% 20040323
… Right Knee … Arthritis 5099-5010 10% 20040323
Chronic … Neck Pain 5299-5237 10% Cervical Intervertebral Disc Disease … 5243 20% 20040323
Cervical Radiculopathy … 8699-8616 10% 20040323
Other x 0 (Not In Scope)
 Other x 8
Combined: 20%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 41109 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The PEB combined two potentially separate conditions (right shoulder and right knee) under a single disability rating, coded analogously to 5003 (degenerative arthritis). Although VASRD §4.71a permits combined ratings of two or more joints under 5003 (under certain conditions), it also allows separate ratings for separately compensable joints. IAW DoDI 6040.44, the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for Service rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB. To that end, the evidence for the shoulder and knee conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Right Shoulder. The service treatment record (STR) detailed that the CI had right shoulder pain for several years that increased in 2000 associated with lifting an air conditioner. He did not respond to conservative treatment and in April 2002 (29 months prior to separation) underwent surgery (acromioclavicular [AC] joint resection and Type II superior labral [SLAP] repair). He improved but had some persistent pain. X-rays showed some bony regrowth in the area of the previous AC joint resection. This was treated with injections with transient relief; he was offered follow-up surgery but declined. Nerve studies (electromyelogram and nerve conduction studies) of the right arm on 18 December 2001 were normal. The DD Form 2808, Report of Medical Examination, accomplished on 22 October 2003 (11 months prior to separation), reported decreased ROM and strength of the right shoulder. At the narrative summary (NARSUM) examination on 22 December 2003 (10 months prior to separation), there was normal muscle strength and a positive Spurling’s test (maneuver to assess for nerve root pain, a.k.a. “radicular pain”). On range-of-motion (ROM) testing he had forward elevation (flexion) of 180 degrees (normal), internal rotation at the level of L2 vertebral vertebra (normal to T5), and external rotation of 45 degrees (normal 90), with no mention of painful motion. At a Primary Care appointment on 21 January 2004, the CI had “shoulder pain [with] [decreased] ROM.” The physical profile on 26 January 2004 listed the right shoulder as a medical condition of interest, and recommended a lifting restriction up to 15 pounds. In a memorandum to the PEB, the CI’s commander stated that the CI could not perform the duties of a normal soldier because of his right shoulder arthritis (among other conditions), and that he was not able to use his right arm. ROM measurements by physical therapy evaluation on 20 February 2004 (7 months prior to separation) were forward flexion 135 degrees (normal 180), abduction 95 degrees (normal 180), external rotation 80 degrees (normal 90), and internal rotation 40 degrees (normal 90 per PDBR and 70 per examiner); all movements were limited by pain.

The VA Compensation and Pension (C&P) exam was performed on 23 March 2004, 6 months prior to separation. The CI reported constant pain and swelling; he was unable to lift heavy loads but the condition did not cause incapacitation. On examination there was anterior tenderness but a negative impingement test. The ROM was flexion and abduction 180 degrees (normal), and external rotation 90 degrees (normal). The ROM was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination.

The Board directed attention to its recommendations based on the above evidence, first considering if the right shoulder condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting as established above. Members agreed that the functional limitations in evidence, the profile restrictions, and commander’s memorandum supported a conclusion that the condition was integral to the CI’s inability to perform his MOS; and, accordingly, a separate rating was recommended.

The VA rated the shoulder condition analogously under code 5010 (arthritis, due to trauma) at 10%, citing painful or limited motion of a major joint. Although the VA C&P exam reported normal ROM without painful motion, other exams reported either decreased ROM or painful motion (or both). The profile and commander’s memorandum both indicated significant functional loss. Board members agreed that the record supported a 10% rating under code 5003 or 5010 based on decreased ROM and/or painful motion (§4.59), and functional loss (§4.40). A higher rating under other shoulder codes was not supported by compensable ROM, ankylosis, dislocation, nonunion, or malunion. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% under analogous code 5010 for the shoulder condition.

Right Knee. The STR detailed that the CI injured his right knee in 1993 (11 years prior to separation), which led to extensive surgery: anterior cruciate ligament (ACL) reconstruction and medial and lateral meniscal debridement. In February 1994, he underwent manipulation under anesthesia and endoscopic debridement of the knee for postoperative stiffness, and subsequently did well without symptomatic instability. In February 2003 (11 years after his second surgery and 19 months prior to separation) he had onset of knee pain which worsened until the date of his NARSUM. The DD Form 2808, Report of Medical Examination, accomplished on 22 October 2003 (11 months prior to separation), reported decreased ROM, decreased strength, and crepitus of the right knee. At the NARSUM examination on 22 December 2003 (10 months prior to separation), the right knee had a well-healed surgical incision, neurologic and vascular status were normal, and the ROM was 1 to 135 degrees (normal 0 to 140). There was a 1 to 2+ Lachman examination (mild to moderate instability of the anterior cruciate ligament, or ACL) with a firm end point, the pivot shift test (for anterolateral rotational instability) was negative, and McMurray test (for torn meniscus) was negative. The medial and lateral collateral ligaments were stable. The examiner stated, “No residual instability.” At a Primary Care examination on 21 January 2004 (9 months prior to separation), the CI had knee pain with flexion. The physical profile on 26 January 2004 listed the right knee as a medical condition of interest, prohibited marching and running, and limited walking to “own pace and distance.” On 9 February 2004 the CI’s commander stated that he could not perform the duties of a normal soldier because of his right knee arthritis (among other conditions), his limited lifting ability, and his inability to wear protective gear. A physical therapy evaluation on 20 February 2004 (7 months prior to separation) reported active knee flexion to be 105 (normal 140), passive flexion 135, and extension minus 5 (normal 0).

At the VA C&P exam on 23 March 2004 (6 months prior separation), the CI reported constant pain and swelling of the knee, which did not cause incapacitation. Current treatment was non-steroidal anti-inflammatory drugs (NSAIDs) and his functional impairment was “inability to climb stairs.” Examination revealed “tenderness and surgical scar … [sic]” and gait was normal. The ROM was 0 to 140 degrees (normal) and was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination. Drawer test (for ACL laxity) and McMurray test were within normal limits. An X-ray of the knee on 11 May 2004 showed arthritic changes of all compartments of the knee with apparent intra-articular bony fragments. The CI was seen in orthopedic clinic on 22 July 2004 (two months prior to separation) and requested a statement that ascending and descending stairs caused knee pain. No exam was done, but the provider stated that this was commensurate with his documented knee arthritis.

The Board directed attention to its recommendations based on the above evidence, first considering if the right knee condition was reasonably justified as separately unfitting as specified above. Members agreed that the functional limitations in evidence, the profile restrictions, and commander’s memorandum supported a conclusion that the condition was integral to the CI’s inability to perform his MOS; and, accordingly, a separate rating was recommended.

The VA rated the knee condition analogously under code 5010 (arthritis, due to trauma) at 10%, citing painful or limited motion of a major joint. The VA C&P exam documented normal ROM, and did not specifically mention painful motion, but other exams did document decreased ROM, and at least one clinical note described painful motion. The Board agreed that a 10% rating was supported under analogous code 5003 or 5010, based on decreased ROM and/or painful motion (§4.59) and functional loss (§4.40). There was not a pathway to a higher rating based on ankylosis, ROM, dislocated semilunar cartilage with episodes of pain and effusion, or impairment of the tibia and fibula. The Board considered whether a separate rating was warranted in view of the joint laxity documented in the NARSUM exam, but this finding was not supported by other examinations, and the record did not reference specific symptoms of subluxation or dislocation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% under analogous code 5010 for the right knee condition.

Neck. The STR detailed that the CI had onset of neck pain in 1998 after a blow to the top of the head while riding in a military vehicle. His pain got worse over time despite courses of rest, rehabilitation, and NSAIDs. He developed intermittent paresthesias (numbness) of the right hand (ulnar nerve distribution) in October 2003 (11 months prior to separation). The DD Form 2808, Report of Medical Examination, accomplished on 22 October 2003, reported decreased ROM of the cervical spine. The CI complained of right arm numbness and tingling, but the neurologic exam was reported as “normal.” Magnetic resonance imaging in December 2003 showed degenerative disc disease at the C4 to C7 levels, significant foraminal narrowing at C6-7, and no definite disc protrusion or spinal stenosis. Nerve conduction studies and electromyelogram 2 days later demonstrated a chronic mild right C-8 radiculopathy with mild residual motor deficits. At a neurology appointment later in the month, the CI had normal gait and normal motor strength in all four extremities. Sensory examination was “intact and symmetrical in upper and lower extremities.” Cervical flexion and extension were moderately limited “with production of posterior neck pain present bilaterally.” At the NARSUM exam on 22 December 2003 (9 months prior to separation), the CI had “full flexion of the chin to the chest, full extension, lateral bending of 45 degrees [normal], and lateral rotation of 70 degrees [normal 80].” There was pain at the extremes of all motions. Spurling's test, to assess nerve root (radicular) pain, was positive. There was normal (5/5) motor strength and decreased sensation in the hypothenar aspect of the right hand (prominent part of the palm above the base of the little finger). At a Primary Care visit on 21 January 2004, the CI had normal strength of the upper and lower extremities, and intact sensation “throughout.” A physical therapy evaluation on 20 February 2004 (7 months prior to separation) reported cervical forward flexion to be 20 degrees and combined ROM to be 220 degrees.

At the VA C&P exam on 23 March 2004, 6 months prior to separation, the CI reported difficulty using the right hand, but the condition did not cause incapacitation. On examination there was paraspinal tenderness but “no evidence of radiating pain on movement with no evidence of muscle spasm.” Flexion was 30 degrees (normal 45) and combined ROM was 205 degrees (normal 340), which was additionally limited by pain. The upper extremities had normal motor function and decreased sensation along the C8 nerve root distribution (medial aspect of the hand and lower arm).

The Board directed attention to its rating recommendation based on the above evidence. The FPEB rated the condition at 10% under analogous code 5237 (cervical strain), citing limitation of cervical motion due to pain, and noting no neurologic abnormality. The VA rated the condition at 20% under code 5243 (intervertebral disc syndrome), based on the ROM from the C&P exam. The VA also rated cervical radiculopathy under analogous code 8616 (ulnar nerve neuritis) at 10%, citing incomplete, mild paralysis of finger and wrist movements. Although the NARSUM exam reported “full flexion of the chin to the chest,” all other exams reported decreased ROM of the neck. The physical therapy evaluation and C&P exams were both closer to the date of separation and both reported flexion of 30 degrees or less, which supported a rating of 20%. There was not a pathway to a higher rating based on ankylosis, ROM, or incapacitating episodes. Members considered whether additional rating could be recommended under a peripheral nerve code, as conferred by the VA, for the associated paralysis of finger and wrist movements at separation. Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating in spine cases. The Board’s threshold for such recommendations is preponderance of evidence, which exceeds the VASRD reasonable doubt standard for its rating recommendations but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. Although the CI had decreased sensation in an area of the right arm and hand, all examinations demonstrated normal strength. Board members agreed that the preponderance of evidence did not support a contention that this was unfitting for duty. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% under code 5243 for the neck 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 for rating the shoulder and knee conditions and AR 635-40 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 5099-5010 IAW VASRD §4.71a. In the matter of the right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5010 IAW VASRD §4.71a. In the matter of the neck condition, the Board unanimously recommends a disability rating of 20%, coded 5243 IAW VASRD §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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Cervical intervertebral disc disease with degenerative disc disease 5243 20%
Right shoulder reconstruction with residual degenerative arthritis 5099-5010 10%
Right knee surgery with residual degenerative arthritis 5099-5010 10%
COMBINED 40%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130916, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record





XXXXXXXXXXXXXXX
President
DoD 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, AR20150013346 (PD201301414)


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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