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AF | PDBR | CY2014 | PD2014 00906
Original file (PD2014 00906.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1400906
BRANCH OF SERVICE: Army  BOARD DATE: 20140910
SEPARATION DATE: 20070121


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (88M/Truck Driver) medically separated for a chronic neck pain, chronic low back pain (LBP) and right shoulder pain (dominant) condition. The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty; however the CI could perform an alternate fitness test. She was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB). The neck pain, chronic LBP and right shoulder pain condition, characterized as “degenerative joint disease of the cervical spine, mild multilevel degenerative disk disease of the lumbar spine, right shoulder labral tear and tendinopathy,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. Five other conditions were submitted by the MEB (see chart below). The Informal PEB adjudicated “chronic neck pain, chronic low back pain and right shoulder pain” as unfitting, each rated 0% respectively. The remaining conditions were determined to be not unfitting and therefore not ratable. The CI made no appeals and was medically separated.


CI CONTENTION: “Please consider all conditions”


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 CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR. The rating for the unfitting neck pain, chronic LBP and right shoulder pain conditions are addressed below. The contended not unfitting conditions of depression not otherwise specified, mild hypertension, dyspepsia, headaches and ovarian cysts also meet the criteria prescribed in DoDI 6040.44 for Board purview. 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 20061220
 *VA – (8 Mos. Post Separation )
Condition
 Code Rating Condition Code Rating Exam
Neck Pain 5237 0% Degenerative Changes Cervical Spine 5242 10% 20070921*
Low Back Pain 5237 0% Lumbar Spine Degenerative Changes 5242 10% 20070921*
Right Shoulder Pain 5099-5003 0% R/Shoulder AC Joint Arthritis… 5010-5201 10% 20070921*
Mild Hypertension Meets Retention Stds Hypertension 7101 0%
Dyspepsia Meets Retention Stds No VA Entry
Headaches Meets Retention Stds No VA Entry
Ovarian Cysts Meets Retention Stds Hysterectomy s/p Thrombosed Ovarian Cyst 7617 50% 20070910*
Depressive Disorder Meets Retention Stds PTSD 9411 50% 20070910*
Other x 0 within Scope
Other x 4
Combined: 0%
 Combined: %
Derived from VA Rating Decision (VA RD ) dated 20071123 ( most proximate to date of separation [ DOS ] ). *C&P exams used for rating purposes not in evidence .

ANALYSIS SUMMARY:

Neck Pain Condition. The narrative summary (NARSUM) noted the CI, while playing touch football in August 2004, fell and injured her neck and back. The CI indicated her neck and LBP began almost immediately following the incident. She noted the neck pain radiated to her right upper extremity with numbness and tingling. The CI was initially diagnosed with cervical sprain and treated conservatively with unsustained improvement. She was later diagnosed with arthritis of the cervical spine. Magnetic resonance imaging (MRI) dated 29 June 2005, revealed multi-level degenerative disk disease (DDD) and significant disc bulging at C4-5 C5-6 and C6-7. In November 2005, the consult physical therapy (PT) clinic examination recorded “lower cervical motion within normal limit,” and an exaggerated tenderness to palpation of the cervical spine. A repeat MRI in March 2006 indicated no significant change from previous MRI.

The MEB orthopedic consult, dated 12 July 2006 and recorded range-of-motion (ROM) flexion to 30 degrees and extension to 15 degrees. The examiner noted the CI refused to continue with the ROM examination stating that it hurt too badly. The physician noted the CI refused multiple aspects of the exam stating it was too painful, and there was “over-reaction to multiple points of the exam out of proportion to stimuli.” Muscle strength was normal and sensation was intact to light touch. The examiner opined the CI met retention criteria for the cervical pain condition.

The NARSUM on 15 August 2006 noted the CI underwent an electromyogram (EMG) of the right upper extremity that demonstrated mild denervation potentials in the paraspinals with distal normal findings, possibly consistent with a right C5 radiculopathy and recommended clinical and radiological correlation. Physical examination recorded normal motor strength, decreased pinprick sensation in the right C-6 distribution with all other sensory modalities normal. The physician opined that there was no evidence to support the diagnosis of C5 radiculopathy based on lack of clinical findings. The examiner noted “over-reaction” to palpation of cervical and lumbar spine; however, did not record the presence of pain or tenderness. There was no report of spasms. There was no evidence of muscle atrophy, or loss of motor function. The ROM measurements for the MEB, recorded during PT visit in July 2006, revealed cervical flexion and extension of 10 degrees (15 degrees on first effort), both noted limited by pain. The physician referenced a neurosurgery consult that indicated the CI was not a surgical candidate since there was no surgical indication for the condition. The physician opined the CI met retention standards. The VA noted the Compensation and Pension (C&P) examination, recorded the diagnosis of degenerative changes, and noted the presence of cervical spine muscle spasm during the examination. The VARD also noted the absence of radicular findings and no recording of ROM (the CI refused testing).

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition for ROM limited by pain, coded 5237, and assigned a rating of 0%. The VA rated the condition under code 5242, 10% for muscle spasm. Under the applicable spine rules, a rating of 10% requires cervical spine flexion of greater than 30 degrees but less than 40 degrees or a combined ROM of the cervical spine of 170 to 335 degrees or spasm severe enough to result in abnormal spinal contour. A 20% rating requires forward flexion of the cervical spine of 15 to 30 degrees, or combined ROM of not greater than 170 degrees or spasm severe enough to cause scoliosis, lordosis or kyphosis. A rating of 30% requires forward flexion of the cervical spine of 15 degrees or less. The Board considered the evidence for the 20% and 30% rating. The Board noted the ROM recorded 4 weeks prior to the NARSUM with flexion of the cervical spine to 15, 10, and 10 degrees and the notation that the entire ROM measurements were limited by CI’s report of pain. The orthopedic MEB consult examination performed the same day of the NARSUM ROM by PT, recorded flexion of 30 degrees. The orthopedic physician noted the CI “over-reacted” out of proportion to stimuli, the neurologist noted that the CI exhibited some “over-reaction disproportionate to stimuli; the NARSUM examiner recorded the CI demonstrated” over-reaction disproportionate to palpation. The CI reportedly refused the ROM examination at the VA. Board members agreed there was reasonable doubt as to the credibility of the ROM documented due to the above evidence. The Board concluded that the consistent recording of painful motion and radiographic evidence of DDD supported a 10% rating for painful motion. There was no evidence of ratable peripheral nerve impairment in this case, since no motor weakness was present and sensory symptoms had no functional implication. There was no evidence of incapacitating episodes for a higher rating under 5243. Given the record in evidence the Board determined there were no other applicable VA Schedule for Rating Disabilities (VASRD) codes for consideration. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% coded 5237, IAW VASRD §4.59 for the neck pain condition.

Low Back Pain Condition. The NARSUM noted the CI’s LBP was the result of the injury that caused her neck pain. The CI reported her pain radiated initially to her right knee but had moved to the right foot. Radiographic imaging of the thoracolumbar spine in March 2006 noted mild degenerative joint disease. The NARSUM noted that an MRI of the lumbar spine revealed a herniated disc (not among records). An MRI of the lumbar spine dated 2 June 2006 recorded no significant abnormality. An EMG and nerve conduction studies of the right leg were unremarkable. The CI was prescribed home exercises for back strengthening and both narcotic and non-narcotic medications for pain. She also used a transcutaneous electrical nerve stimulation (TENS) unit for neck and back pain.

At the MEB orthopedic consult exam dated 12 July 2006, approximately 6 months prior to separation, the CI reported her LBP was localized to her lumbar region and did not radiate to the lower extremities. She noted that she was evaluated by a chiropractor but refused treatment, and that she had tried multiple medications including narcotics; however, pain persisted. The physical exam noted normal gait, muscle strength, reflexes, and sensory examinations. There was tenderness to palpation from the lower thoracic spine distally. The CI could heel and toe walk; however, she refused to participate in the ROM testing. The physician opined the LBP condition met retention standards. The neurosurgery consult on 25 July 2006, 2 weeks following the orthopedic MEB, noted the CI reported sharp pain in the lumbar region that radiated down through her buttocks, posterior thigh and posterior calf. On examination she had a normal gait, could squat and rise without significant difficulty, and was able to accomplish 90 degrees straight leg raise test without pain. The surgeon noted the CI “exhibited some over-reaction disproportionate to palpation in the lumbar region.” The physician stated the MRI of the lumbar spine was without any structural pathology. The examiner indicated from a neurosurgical perspective the CI failed to meet retention criteria for both cervical and lumbar conditions; however, noted surgery was not recommended for either condition.

The NARSUM examination dated 15 August 2006 noted a normal gait and straight leg raise test to 90 degrees without pain. The recorded ROM taken from the PT examination dated 12 July 2006 indicated forward flexion of 20, 25, 25 and extension of 20 degrees; all measurements were limited by pain. The examiner noted a lumbar MRI was performed on 6 July that demonstrated multilevel small disk bulges without stenosis. The physician diagnosed mechanical LBP and opined the LBP condition met retention standards. The 23 November 2007 VARD noted the CI underwent the C&P examination and was diagnosed with mild degenerative changes of the lumbar spine without radiculopathy. The exam was positive for lumbar muscle spasm and the CI refused to participate in ROM testing.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 0% coded 5237 with the notation that the condition was not accompanied by neurologic abnormality, spasm, or deformity, and noted the absence of tenderness to palpation and the presence of a normal gait. The VA rated the condition at 10%, under the 5242 code for the presence of muscle spasm in the absence of abnormal gait or abnormal spinal contour. A higher rating of 20% under either code requires spasms producing abnormal gait, or abnormal curvature of the spine, or forward flexion not greater than 60 degrees. The Board noted reduced flexion on the NARSUM, and refusal to participate in ROM testing at the orthopedic and VA examinations. The Board noted the ROM recorded at the NARSUM noted pain limited testing. The Board determined there was reasonable doubt as to the credibility of the ROM documented at the NARSUM, since there were no other clinical findings consistent with the recorded ROM. The CI had normal gait in all available examinations, could heel and toe walk, could squat and rise without difficulty, had no recorded spasms prior to the C&P exam, and examiners note a pattern of “over-reaction” to aspects of the examinations. The neurosurgeon stated there was no structural pathology in the lumbar spine. The Board agreed that the record sufficiently documented tenderness to palpation of lumbar spine, at times recorded as “over-reaction,” however, the preponderance of evidence did support a compensable rating under code 5237, IAW VASRD §4.59. After deliberation, the Board concluded the record in evidence supported the minimal compensable rating for the chronic low back pain coded 5237. Thereupon, 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 LBP condition.

Right Shoulder Condition. The NARSUM noted the CI slipped and fell on her weapon, hit a rock and injured her right shoulder, 2 weeks after the initial neck and back injury. The condition was diagnosed as right shoulder sprain and treated conservatively without significant pain relief. She later reported sensations of coldness and numbness with decreased strength of her entire right upper extremity. A TENS unit was prescribed but offered no relief. Radiographs of the right shoulder dated 17 May 2006 were unremarkable. On 19 July 2006, the CI underwent right shoulder MR arthrogram, that demonstrated mid posterior labrum tear, tear of the infraspinatus tendon, and tendinopathy of the subscapular and supraspinatus tendons. There was no indication that surgery was recommended. At the orthopedic consult to the MEB examination, the physician stated there was “over-reaction” with passive ROM of the right shoulder; the CI could forward flex to 90 degrees, and there was no evidence of nerve impingement or pathology suggestive of rotator cuff tear. Muscle strength and sensation was intact in the bilateral upper extremities. The examiner noted the condition did not meet retention standards. The NARSUM shoulder examination findings reflected the orthopedic findings, but also noted ROM from PT MEB that recorded flexion of 20 degrees limited by pain. The VARD recorded the CI refused to perform ROM testing at the C&P examination; however, noted the diagnosis of right acromioclavicular joint arthritis with questionable tear of the right supraspinatus muscle. The most definitive finding was right shoulder pain.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the right shoulder condition 0%, coded analogously 5099-5003(degenerative arthritis) and noted loss of ROM was pain-limited, rated as DJD without significant loss of joint motion. The VA coded the condition 5010-5201 (for painful motion), and assigned a 10% rating. A 10% rating under the 5003 code requires demonstration of limitation of motion or satisfactory evidence of painful motion. In this case, painful motion was described in both MEB exams referenced above and at the VA C&P exam. The orthopedic MEB recorded right shoulder flexion at 90 degrees (180); the MEB NARSUM referenced both the 90 degree from the orthopedic exam and the 20 degrees from the PT MEB. The Board noted the critical discrepancy in the above referenced examinations, both performed on the same day and, the CI’s refusal to perform ROM testing during the VA examination. All Board members agreed there was reasonable doubt as to the credibility of the ROM documented in all ROM testing. Therefore, all Board members agreed, there was insufficient evidence to support a rating based on limited ROM. The Board agreed that the record sufficiently documented pain in the right shoulder, and the preponderance of evidence did support a compensable rating under code 5003. After deliberation, the Board concluded the record in evidence supported the minimal compensable rating for right shoulder pain coded 5099-5003, IAW VASRD §4.59. 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 right shoulder pain condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the mild hypertension, dyspepsia, headaches, depressive disorder and ovarian cysts were not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The Board noted there were a total of two mental health treatment entries recorded in evidence prior to separation. Psychiatry entry dated 30 May 2006, recorded the diagnosis of depression related to reported symptoms of depressed mood, irritability and anger, low energy, lack of motivation, anhedonia, intrusive thoughts, difficulty with concentration and social isolation. The CI noted her depression had improved and she was unable to perform her job due to severe neck, back, shoulder, and foot pain. The MEB psychiatry addendum, approximately 6 months prior to separation, noted the CI’s symptoms had significantly improved; her concentration was good, appetite normal, sleep issues had responded well to medication and her mood was stated as generally good. The mental status examination was fully unremarkable, and the Global Assessment of Functioning was 70 (mild). There was no evidence of visits to the emergency room for mental health issues, no report of suicidal or homicidal ideations, no psychiatric hospitalizations violence or legal issues. The conditions of depression, hypertension, dyspepsia, headaches and ovarian cysts were not profiled or implicated in the commander’s statement and were not judged to fail retention standards. All were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any of the above noted conditions 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 conditions and so no additional disability ratings are 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.59. In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.59. In the matter of the right shoulder pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.59. In the matter of the contended mild hypertension, dyspepsia, headaches, ovarian cysts and depressive disorder conditions, the Board unanimously recommends no change from the PEB determinations 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 recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Neck Pain 5237 10%
Chronic Low Back Pain 5237 10%
Right Shoulder Pain 5099-5003 10%
COMBINED
 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 2013, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                 
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX , AR20140015975 (PD201400906)


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 30% 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 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 30% 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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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