Jason Perry
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What the Army Physical Disability Agency does to Soldiers with back or neck injuries is one of the most clearly erroneous actions in the Army PDES. AR 635-40, B-29e., states "...Ratings for loss of joint motion can only be awarded where a mechanical basis for limited motion is found. Muscle contractures and arthritic degeneration of bone are examples of a mechanical limitation of motion. Contrariwise, joint pain resulting in loss of motion does not constitute a mechanical basis for restricted motion." The APDA then states in Issue and Guidance #1 that "...AR 635-40, paragraph B-29e allows rating of limitation of motion only when that limitation is the result of a mechanical limitation (loss of joint integrity; muscle loss; contracture; malunion). Limitation resulting solely from pain is not ratable. If a case involving “some” limitation is rated under DC 5003 at 10% per joint (versus 0%) based on pain alone, the intent of AR 635-40 is violated." Taken together, the result is that a Soldier who has any limitation of motion based on pain loses out on any rating for back or cervical spine conditions based on range of motion. The Soldier may have a joint fusion, may have hardware implanted, and or may be barely able to bend at all. The range of motion limitation can even be documented by the treating physician. However, if there is evidence of painful motion, the Board will discard the range of motion limitation. I have even seen cases where the orthopedic specialist will state in the Soldiers medical notes that "limitation of range of motion is due to mechanical factors." Even so, the PEB, following the direction of the APDA, will not rate the loss of range of motion. What is usually left is either a finding that the Soldier has tenderness on palpitation or muscle spasms (which warrants a 10% rating) or spasms resulting in an abnormal gait (which warrants a 20% rating).
The Army is interpreting the VASRD in such a way that flies in the face of established case law issued by the United States Court of Appeals for Veterans Claims. I think that if a Soldier has a clearly documented limitation of range of motion of the spine and challenges this policy in Federal Court there is a high likelihood for success. In the mean time, though, the Soldier should be prepared for the application by the APDA of the current policy. That means no more than a 20% rating. For reasons that I will discuss in another post, Soldiers should not concur with the Boards findings if they fall into the situation described above and do not receive at least a 30% rating.
The Army is interpreting the VASRD in such a way that flies in the face of established case law issued by the United States Court of Appeals for Veterans Claims. I think that if a Soldier has a clearly documented limitation of range of motion of the spine and challenges this policy in Federal Court there is a high likelihood for success. In the mean time, though, the Soldier should be prepared for the application by the APDA of the current policy. That means no more than a 20% rating. For reasons that I will discuss in another post, Soldiers should not concur with the Boards findings if they fall into the situation described above and do not receive at least a 30% rating.