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AF | PDBR | CY2013 | PD-2013-01636
Original file (PD-2013-01636.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX             CASE: PD-2013-01636
BRANCH OF SERVICE: Army  BOARD DATE: 20150210
SEPARATION DATE: 20060509


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Carpentry/Masonry Specialist) medically separated for left shoulder, neck and bilateral feet conditions. The multiple 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 P3/U3/L3/S1 profile and referred for a Medical Evaluation Board (MEB). The left shoulder, neck and bilateral feet, characterized by the MEB as “left shoulder impingement syndrome,” “adhesive capsulitis of the left shoulder,” “cervical spondylolysis,” “cervical stenosis” and “bilateral plantar fasciitis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded eight other conditions, including posttraumatic stress disorder (PTSD) that was designated medically acceptable. The Informal PEB (IPEB) adjudicated “chronic pain, left (dominant) shoulder following surgery with adhesive capsulitis,” “chronic neck pain due to cervical stenosis/spondylolysis without significant neurologic abnormality” and “bilateral plantar fasciitis” as unfitting, rated 10%, 0% and 0% respectively, referencing application of the US Army Physical Disability Agency (USAPDA) pain policy for the left shoulder and likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) for the neck and plantar fasciitis conditions. The remaining conditions were determined to be not unfitting and not rated , including the PTSD condition . The CI non-concurred but waived a Formal hearing. The CI did not submit a rebuttal but did provide a health clinic note for consideration. The IPEB reviewed the CI’s new evidence and affirmed its original findings and recommendations. The case was reviewed by the USAPDA which also affirmed the PEB’s findings. The CI elected Reserve Retirement awaiting pay at age 60 in lieu of severance pay.


CI CONTENTION: “I received a letter concerning the wounded warrior act.”


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 (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.

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.


 RATING COMPARISON :

Service IPEB – Dated 20060315
 VA - (10 & 13 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Pain, Left Shoulder 5099-5003 10% Left Shoulder Rotator Cuff Tendinopathy 5201 10% 20060310
Chronic Neck Pain w/o Significant Neurologic Abnormality 5238 0% Cervical Spine Strain with Spondylosis 5237 10% 20060615
Bilateral Plantar Fasciitis 5388-5310 0% Bilateral Plantar Fasciitis 5099-5020 10% 20060310
PTSD Not Unfitting PTSD 9411 NSC* 20060622
Other x7 (Not in Scope)
 Other x 14
Combined: 10%
 Combined: 80%
Derived from VA Rating Decision (VA RD ) dated 200 60907 (most proximate to date of separation [ DOS ] )
* Service connection granted on VARD dated 20080723 , rated 10%, effective date released from active duty (REFRAD)


ANALYSIS SUMMARY:

Chronic Pain Left Shoulder Condition. The CI suffered an injury to his left shoulder while unloading duffle bags from a truck while deployed in April 2003. He was sent back state-side where a shoulder magnetic resonance imaging (MRI) was consistent with a superior labrum anterior and posterior (SLAP) tear and impingement syndrome. He responded to an injection of a numbing medication into the shoulder area. Despite continued non-operative treatment, his symptoms persisted and he underwent surgical repair of the SLAP lesion with sub-acromial decompression and distal clavicle resection in January 2004. Post-operatively, he reported improvement in his pain. The intensity decreased from moderate to slight and the frequency went from frequent to occasional. The CI developed a limited range-of-motion (ROM) in the left shoulder for which he was treated with aggressive physical therapy (PT) and steroid injections with only limited improvement. In August 2004, he underwent manipulation under anesthesia for adhesive capsulitis with an improvement in the left shoulder ROM. The narrative summary (NARSUM) prepared 18 months prior to separation noted that despite aggressive PT and medical treatment, he was not able to fulfill his duty as 51B even though his ROM had improved from the manipulation. At the VA Compensation and Pension (C&P) exam performed 9 months prior to separation, the CI reported he was in PT for a new finding on his MRI. He had a repeat MRI of his left shoulder on 27 June 2006, which revealed post-surgical changes associated with his left rotator cuff repair and an abnormal signal at the supraspinatus tendon which represented some degeneration or post-surgical change. The patient denied any incapacitating events associated with his left shoulder. As far as routine daily activities, the CI had difficulty and pain with overhead activities and at night when lying on left shoulder. The pertinent physical exam findings for the NARSUM and C&P exams and the goniometric 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.

Left Shoulder ROM (Degrees) MEB ~ 18 Mo. Pre-Sep VA C&P ~ 9 Mo. Pre-Sep
Flexion (180 Normal) 140 1 6 0
Abduction (180) 160 1 7 0
Comments : Left Hand Dominant No evidence of instability; Normal reflexes & sensation; “give-away” weakness left triceps otherwise normal strength; No mention of painful motion Pos. painful motion; Pos. impingement signs; Slightly decreased strength; No Deluca criteria
§4.71a Rating 0 % 10 %

The Board directed attention to its rating recommendation based on the above evidence. The PEB applied the analogous VASRD code 5099-5003 (degenerative arthritis) and rated it 10% citing the USAPDA pain policy. The VA applied code 5201 (limitation of arm motion) and rated it 10% citing, “…with objective evidence of painful motion, supports an evaluation of 10% disabling, as your range of motion does not support a compensable evaluation.” The Board notes that under code 5201 there is no 10% rating. The C&P exam is the only available for review by the Board within 12 months of separation and therefore is deemed to be the most probative document for its rating recommendation. That exam documents non-compensable ROM measurements with satisfactory evidence of painful motion IAW VASRD §4.59. The code 5003 assigned a 10% rating for non-compensable ROM measurements with painful motion. The Board considered other rating options to include rating for disability related to the clavicle; however, there was no appropriate coding/rating scheme that would result in a rating greater than 10%. 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 chronic pain left shoulder condition.

Chronic Neck Pain Condition. The CI initially developed neck pain while unloading duffle bags from a truck while deployed to Kuwait in April 2003. He was initially seen at his Troop Medical Clinic in theater and a neck disk herniation was suspected. The CI was sent back to the CONUS in May 2003 for further evaluation. Further evaluation with a cervical spine MRI revealed multiple levels of degenerative changes in the discs from C5 to C7. An electromyogram/nerve conduction study (EMG/NCS) was consistent with a left C5-C6 radiculopathy. Non-operative treatment was recommended and he received PT and a nerve root block procedure, which did not result in any symptom reduction. He was then referred to neurosurgery/orthopedic spine specialist further work-up and evaluation for consideration of surgical options. After extensive workup, it was determined by the neurosurgeon that the CI was not a candidate for surgical treatment of his neck pain. The NARSUM noted continued non-operative treatment of his neck pain between January and August 2004 with some improvement. This was confirmed by a repeat EMG/NCS study in August 2004 showing improvement of C5 radiculopathy. At the C&P exam performed 10 months prior to separation, the CI reported flare-ups of his neck every morning, but no incapacitating events were associated with his neck. He stated his neck pain went from 5/10 to a 7/10 with a flare-up and when he took his narcotic medication his pain went back down to a 5/10. He denied any weakness and that his neck pain radiated into his left shoulder.

The goniometric 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.

Cervical ROM (Degrees) MEB ~ 18 Mo. Pre-Sep PT Exam ~ 1 5 Mo. Pre-Sep VA C&P ~ 9 Mo. Pre-Sep
Flex (45 Normal) Without any bony tenderness and with full range of motion 25 45
Combined (340) 170 195
Comment Left triceps with “give-away” weakness otherwise normal strength left arm - Pos. tenderness to palpation; Pos. painful motion; Normal sensory; No Deluca criteria
§4.71a Rating 0% 2 0% 10%

The Board directed attention to its rating recommendation based on the above evidence. The PEB applied VASRD code 5238 (spinal stenosis) and rated it 0% citing “combined cervical range of motion of 340 degrees.” The VA applied code 5237, (lumbosacral or cervical strain) and rated it 10% citing both painful motion and “…forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degree…” The Board notes that no C&P exam contained compensable ROM measurements as suggested by the VARD document. The Board notes that the only exam within 12 months of separation was a C&P exam that documented non-compensable cervical ROM measurements with satisfactory evidence of painful motion IAW VASRD 4.59. Because of its completeness and proximity to separation, the Board assigned the highest probative value to that exam. The General Rating Formula for Diseases and Injuries of the Spine grants a 10% rating for “localized tenderness” as documented on the exam most proximate to separation. The Board considered whether an additional rating could be recommended under a peripheral nerve code, for the associated left C5-6 radiculopathy at separation. Firm Board precedence requires a functional impairment linked to fitness to support a recommendation for addition of a peripheral nerve rating to disability in spine cases. The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. The sensory component in this case has no functional implications and the motor impairment was either intermittent or relatively minor and cannot be linked to significant functional consequence. There is thus no evidence of a separately ratable functional impairment (with fitness implications) from the residual radiculopathy; and, the Board cannot support a recommendation for an additional disability rating on this basis. 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 chronic neck pain condition.

Bilateral Plantar Fasciitis. In September 2004, the CI first complained of bilateral heel pain that was worse in the mornings and with activity over the past year. Plain film X-rays of both feet were normal and he was referred to podiatry. The podiatrist diagnosed bilateral plantar fasciitis and requested orthotics. There was some pain relief with orthotic use and the CI underwent steroid injections of both feet in February 2005. After custom orthotics were requested and used, the evidence supports that the left heel improved while the right heel remained symptomatic. An EMG/NCS study was performed in August 2005 and did not revealed any foot nerve or muscle pathology. There was an incidental finding of a questionable lower leg neuropathy. Further follow evaluations documented that the CI’s left heel pain mostly resolved with treatment while his right heel pain persisted. The NARSUM noted that the right foot was more painful than the left and the intensity of pain was described as occasional and slight but the intensity would increase to frequent and moderate when activities of aggravation occurred. The physical exam revealed tender plantar fascia bilaterally (positive windlass test), no ankle over-pronation and normal strength, sensation and reflexes. At the C&P exam performed 13 months prior to separation, the CI reported 2 years of bilateral foot pain with prolonged wearing of boots and exercise. Medication and rest alleviated the pain and daily flair-ups lasted 6 hours and resulted in a pain level of 7/10. The physical exam revealed no foot tenderness to palpation, normal gait and normal ankle ROM. The Board noted that another C&P exam performed nine months prior to separation noted “some” tenderness to palpation of both feet.

The Board directed attention to its rating recommendation based on the above evidence. The PEB adjudicated the bilateral plantar fasciitis by applying code 5388-5310 (Group X muscle injury) and rated it 0% for “slight.” The Board presumed the “5388” code was a typographical error as there is no 5388 code, while the appropriate designation for an analogous code would be “5399” in this instance. The VA applied the analogous code 5099-5020 (synovitis) and rated it 10% for pain limited motion. The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each disability rating. Additionally, the PEB’s use of code 5310 is appropriate for rating plantar fasciitis; however, that code is not used for bilateral conditions. The evidence makes clear that the right foot was associated with more disability than the left one in this case. The disparity was such that the question is raised of whether the left foot was reasonably justified as separately unfitting. The evidence documents that the left foot responded to the custom orthotics and steroid injection treatments while the right foot remained symptomatic. After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the left foot was integral to the CI’s inability to perform his MOS and, accordingly cannot recommend a separate rating for it. The rating criteria for code 5310 are subjective in nature and are slight 0%, moderate 10%, moderately severe 20% and severe 30%. The PEB’s adjudication as “slight” was not unreasonable as the right foot pain was responding to continued treatment with “some easing of pain” according to the last podiatry note approximately 7 months prior to separation. Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 0% for the bilateral plantar fasciitis condition was appropriately recommended in this case. The Board concluded therefore that this condition could not be recommended for additional disability rating.

Contended PTSD Condition. The Board determined that no MH diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process. This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project. The PEB adjudged the PTSD condition as “not unfitting” after the MEB identified it as meeting medical retention standards. The well-established principle for fitness determinations is that they are performance-based and the Boards threshold for countering PEB not-unfit determinations requires a preponderance of evidence. Although the first document present for review involving MH care was dated 30 September 2004, the examiner indicated that he had received treatment for PTSD and that the treatment modality should be continued. The examiner diagnosed “Acute PTSD,” and assigned a Global Assessment of Functioning (GAF) of 61-70 (connoting mild symptoms).

There were only two additional service treatment record notes between 30 September 2004 and 23 March 2006 and no exam actually documented the DSM-IV criteria required for the diagnoses of PTSD. The mental status exams documented that his mood varied between normal and anxious with no change in his affect. There were never any speech changes, thought abnormalities or suicidal ideation. His GAF remained 60-70 (mild to moderate symptoms) during that period. Review of the initial C&P exam for PTSD dated 10 months prior to separation noted that criterion A had not been fully met. The VA did not grant service-connection based on that exam. The Board noted the CI served over 15 years after that motor vehicle accident without any indication of duty impairment related to an MH condition. No MH condition was ever profiled or implicated by the commander’s statement as causing duty impairment. There were no indications of duty impairment from the service treatment records and there were no PTSD-related hospitalizations. Board members agree that VASRD §4.129 is not applicable in this case. 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 PTSD contended condition and so 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 rating the chronic left shoulder pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the left shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. In the matter of the chronic neck condition, the Board unanimously recommends a disability rating of 10%, coded 5238 IAW VASRD §4.71a. In the matter of the bilateral plantar fasciitis condition and IAW VASRD §4.73, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended PTSD 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic Left Shoulder Pain 5099-5003 10%
Chronic Neck Pain 5238 10%
Right Plantar Fasciitis 5399-5310 0%
COMBINED 20%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130529, 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, AR20150009924 (PD201301636)


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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