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AF | PDBR | CY2013 | PD-2013-02740

Original file (PD-2013-02740.rtf) Auto-classification: Approved

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX CASE: PD-2013-02740
BRANCH OF SERVICE: Army BOARD DATE: 20150408

SEPARATION DATE: 20060623

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Automated Logistical Specialist) medically separated for bilateral shoulder pain and neck pain. The bilateral shoulder and neck conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty but was authorized to perform an alternate physical fitness test. He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB). The “bilateral shoulder pain,” “neck pain” and “carpal tunnel syndrome (right wrist),” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The Informal PEB adjudicated “chronic bilateral shoulder pain” and “chronic neck pain, without neurologic abnormality” as unfitting, rated 10% and 10%, c iting application of the US Army Physical Disability Agency (USAPDA) pain policy for the shoulder condition and with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) for the neck condition. The IPEB adjudicated the carpal tunnel syndrome condition as not unfitting. The CI made no appeals and was medically separated .

CI CONTENTION: “I want all MEB/PEBB conditions be reviewed and to be consider for being unfit for duty and rated. I believe that the difference between the rate received by the Army and the rate received by VA is inaccurate. Army rate was 20%, VA first rate was 60% then it was increased to 80% and the latest rate finally was increased to 90%, and Individual Unemployability was granted from August 13, 2011.” Additionally, the CI provided detailed information on the current VA conditions and applicable ratings contained in block 12 of his DD Form 294.

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.

RATING COMPARISON :

IPEB – Dated 20060426	VA* - (1 Mo. Pre-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Bilateral Shoulder Pain	5099-5003	10%	Right Shoulder Degenerative Joint Disease, with Residual Scar	5201-5003	10%	20060523
			Left Shoulder Degenerative Joint Disease	5201-5003	10%	20060523
Chronic Neck Pain, Without Neurologic Abnormality	5299-5237	10%	Degenerative Disc Disease of the Cervical Spine	5242	20%	20060523
Carpal Tunnel Syndrome (Right Wrist)	Not Unfitting	Right Wrist Carpal Tunnel, with Residual Scar	8515	10%	20060523
Other x 0 (Not In Scope)	Other x 6
RATING: 20%	RATING: 50%

* Derived from VA Rating Decision (VA RD ) dated 200 60717 (most proximate to date of separation [ DOS ] ) .

ANALYSIS SUMMARY: The PEB combined the left and right shoulder pain conditions under a single disability rating, coded analogously to 5003. Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. The Board must follow suit (IAW DoDI 6040.44) 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 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. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.

Bilateral Shoulder Pain Condition. The right-handed CI developed right shoulder pain in approximately 2003, not associated with an injury. Persistent symptoms led to arthroscopic and open surgery in October 2004. Post-operatively there was improvement in motion but persistence of pain. Soon after right shoulder surgery, the CI presented with complaints of non-traumatic left shoulder pain for a year. Despite extensive treatment with medication, physical therapy, injections and restricted activity, his bilateral shoulder pain was not sufficiently relieved. The left shoulder pain was not associated with a surgical indication. Radiographic imaging showed degenerative changes in each shoulder. Review of the service treatment record found no history or complaints of shoulder dislocations. An orthopedic follow-up exam on 17 October 2005 (8 months prior to separation) noted painful motion of both shoulders. Active range-of-motion (ROM) was considered “normal” although measurements were not provided.

At the MEB physical exam on 20 January 2006 (5 months prior to separation) the CI reported bilateral shoulder pain. The MEB physical exam noted bilateral shoulder tenderness, painful motion, and motion limited by pain. At the narrative summary (NARSUM) evaluation on 10 February 2006 the CI complained of constant bilateral shoulder pain exacerbated by lifting, repetitive use and overhead activity. Physical exam showed no evidence of shoulder instability.

At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI reported pain in both shoulders. Left shoulder pain was caused by pushing, pulling and overhead activity. Examination showed no painful motion of either shoulder. The exam was silent regarding tenderness of the right shoulder, but there was no tenderness of the left shoulder. Repetitive motion resulted in no additional limitation of motion of the 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.

Shoulder ROM (Degrees)	MEB ~ 4 Mo s . Pre-Sep	VA C&P 1 Mo. P re -Sep
	Left	Right	Left	Right
Flexion (180 Normal)	160	160	160	150
Abduction (180)	--	--	120	11 0 **
Comments	+Painful motion, crepitus
§4.71a Rating	10% *	10% *	10%*	10%*

*Conceding §4.40 (functional loss) or §4.59 (painful motion)
**120 degrees prior to repetitive motion

The Board directed attention to its recommendations, the Board considered if each shoulder condition met the Board’s threshold for separate rating (as elaborated above). However, the option of not recommending separate disability ratings, but rating both shoulders together at 10% coded 5003 (degenerative arthritis) was also deliberated. In this case a bilateral shoulder condition was determined to fail retention standards and was profiled. Member consensus was that each shoulder should be conceded as separately unfitting, and that coding and rating features were logically identical.

The PEB assigned a rating under an analogous 5003 code (degenerative arthritis). The VA rated each shoulder at 10% under a combination code 5201-5003 (arm, limitation of motion of). The VASRD §4.71a threshold for compensable ROM impairment is “at shoulder level” (90 degrees from the side), but all ROM in evidence demonstrated motion above this level. However, although limitation of motion was non-compensable, Board members agreed that sufficient evidence of functional loss (§4.40) and painful motion (VASRD §4.59) was present to support a 10% rating in each shoulder. There was no history of shoulder dislocations or of humerus malunion to support any rating under code 5202 (humerus, other impairment of); or of dislocation or non-union with loose movement of the clavicle to warrant a rating under the 5203 code. 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 shoulder pain condition and 10% for the right shoulder pain condition, coded 5099-5003.

Neck Condition. The CI experienced onset of neck pain in approximately 2004 without prior injury or trauma. Radiographic imaging showed mild disc protrusion at C5-6. Chiropractic care failed to result in significant improvement in pain. There was no surgical indication. At the MEB exam the CI reported constant, sharp neck pain that radiated to the trapezius muscle. Exam showed pain-limited motion in all directions, and paraspinal muscle tenderness. The NARSUM evaluation noted a complaint of daily neck pain. Exam showed paraspinal muscle tenderness and “slightly reduced range of motion secondary to pain with neck rotation.”

At the VA C&P exam performed a month prior to separation, the CI reported paraspinal neck stiffness and pain when trying to sleep. Examination showed no spasm. Although “no pain on motion” was reported, the examiner also stated that “pain and spasm at the end of … range of motion” occurred. 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 PT ~2 Mo s . Pre-Sep	VA C&P 1 Mo. Pre-Sep
Flex (45 Normal)	25 (25 , 26 , 25)	30
Combined (340)	120	210
Comment	ROM limited by pain	+Tenderness
§4.71a Rating	20%	20%

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating analogously to 5237 (cervical strain) while the VA rated at 20% under the 5242 code (degenerative arthritis of the spine). Cervical flexion measurements reflected in both the MEB physical therapy and C&P examinations supported a 20% rating for forward flexion greater than 15 degrees but not greater than 30 degrees. A 20% rating was also warranted for combined ROM of 120 degrees noted on the MEB exam (i.e. combined ROM not greater than 170 degrees). The Board also considered rating intervertebral disc disease under the alternative formula for incapacitating episodes, but could not find sufficient evidence which would meet the minimal criteria under that formula. 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 chronic neck pain condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that right wrist carpal tunnel syndrome was not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. In October 2005 the CI had right carpal tunnel release surgery for definitive treatment of carpal tunnel syndrome, which was causing right wrist and hand tingling and pain. According to the NARSUM examiner, the surgery resulted in significant relief of symptoms. On the Report of Medical Assessment (DD Form 2697) the CI did not identify carpal tunnel syndrome as limiting his ability to work in his specialty. The carpal tunnel syndrome was not profiled or implicated in the commander’s statement and was not judged to fail retention standards. This condition was reviewed and considered by the Board. There was no performance based evidence from the record that right carpal tunnel syndrome significantly 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 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 for rating chronic bilateral shoulder pain was operant in this case and the condition was adjudicated independently of that policy by this Board. In the matter of the chronic bilateral shoulder pain condition, the Board by a majority vote recommends that it be rated for two separate unfitting conditions as follows: chronic left shoulder pain condition coded 5099-5003 and rated 10%; and chronic right shoulder pain condition coded 5099-5003 and rated 10%; both IAW VASRD §4.71a. In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5237 IAW VASRD §4.71a. In the matter of the contended carpal tunnel syndrome right wrist 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; 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:

CONDITION	VASRD CODE	RATING
Chronic Left Shoulder Pain	5099-5003	10%
Chronic Right Shoulder Pain	5099-5003	10%
Chronic Neck Pain	5299-5237	20%
COMBINED (w/ BLF)	40%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131223, 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 XXXXXXXXXXXXXXXXXXXX , AR20150012752 (PD201302740)

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                                                  XXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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