RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2011-00094
BRANCH OF SERVICE:  Army	BOARD DATE:  20140925
SEPARATION DATE:  20050906

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (63B20/H8 Wheeled Vehicle Mechanic) medically separated for chronic left (non-dominant) shoulder pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The CI was permitted to take the aerobic portion of the Army alternate physical fitness test.  He was issued a permanent P3/U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic left shoulder pain condition, characterized as “left shoulder dislocation and labral tear with arthritis due to trauma” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (see rating comparison chart below).  The Informal PEB adjudicated “chronic left (non-dominant) shoulder pain” as unfitting, rated at 10%, citing the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I should have been medically retired and placed on the TDRL with at least 40% rating from my PEB and I also believe I should have been placed on the PDRL after re-evaluation that would have been around one to two years after separation.  Please note that I was granted 30% for migraines which I contend would cause unfitness in doing my job as a 63W it was listed but not rated on the PEB and was rated by DVA at 30%.” 

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 rating for the unfitting chronic left (non-dominant) shoulder pain condition is addressed below.  The contended lumbar spine, shin splints, and migraine conditions, which were determined to be not unfitting by the PEB, are likewise addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 20050805	VA - (1 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left (Non-Dominant) Shoulder Pain	5099-5003	10%	Dislocation of Left Shoulder with Avulsion Injury (tear and fracture) to the Glenoid Labrum	5203	10%	20051011	
			Neck Spasms due to Left Shoulder	5237	0%	20051011	
Lumbar Spine Pain with Spondylolithesis	Not Unfitting	DDD, Lumbosacral Spine w/ Spondylosis and Spondylolisthesis	5239-5242	10%	20051011	
Shin Splints	Not Unfitting	Right Shin Splint	5020	0%	20051011	
		Left Shin Splint	5020	0%	20051011	
Migraines	Not Unfitting	Migraine Headache	8100	30%	20051011	
Other x 0 (Not in Scope)	Other x 3 (Not in Scope)	20051011	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20051212 (most proximate to date of separation)   

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the gravity of his unfitting condition and the level of disability rating he received upon separation.  The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code).

Left Shoulder Condition.  The CI is right hand/arm dominant.  In 2002, he injured his left shoulder (reportedly, dislocation) while working on a vehicle.  Apparently, he did not receive medical treatment and the dislocation was self-reduced back in place.  The service treatment record (STR) contained clinical encounter source documents beginning in February 2004 with the CI complaining of left shoulder pain and persistent feelings of instability.  He reported frequent recurrences of left shoulder dislocations.  He never had to have it reduced under general anesthesia.  He was treated with medications and followed in physical therapy (PT).  X-rays taken in November 2004 indicated abnormal signal intensity (x-ray beam and body tissue interaction) suggesting an inflammatory condition or areas of chronic micro-trauma in and around a joint.  A magnetic resonance image (MRI) (December 2004) revealed a glenoid fracture and labrum tear (shoulder bone and ligament) in the left shoulder.  Despite aggressive PT, his pain and feelings of persistent instability continued.  An orthopedic evaluation performed on 22 February 2005 (6 months prior to separation) noted the “[CI’s]…main complaint is pain with motion and not instability.”  The examination revealed painful and limited range-of-motion (ROM) and the provider listed “no generalized laxity.”  Surgery was not recommended.  His treatment remained medications and PT throughout the MEB process.

At the MEB narrative summary (2 months prior to separation), the CI reported a sharp, non-radiating left shoulder pain aggravated with overhead use or lifting.  The physical examination (PE) revealed limited ROM and minimally decreased motor strength in the left arm.  There was no comment in regards to painful motion, instability, guarding, crepitus, or abnormal neurovascular findings.  His shoulder pain rating was described as “intermittent” for frequency and “slight” for severity.  His diagnosis was left shoulder dislocation and labral tear.  

The commander’s statement included the CI’s duty limitations and noted the inability to perform his required MOS duties.  His permanent profile implicated the shoulder condition as well as three unrelated conditions.

At the VA Compensation and Pension (C&P) examination (a month post-separation), the CI reported constant pain rating of 5 out of 10, with 10 being the highest pain level, to left shoulder made worse with overhead motion.  Additionally, he reported “…flares of pain at 10 out of 10 that appeared 1-2 times a month on a random basis and last a day and ease with medication.”  The PE was brief and revealed limited painful motion.  There was no comment regarding instability, guarding, crepitus, weakness, or abnormal neurovascular findings.  The diagnosis remained unchanged as described above in the, December 2004, MRI report.  His occupation was a mechanic helper; only held the position for 3 days at the time of the C&P examination.  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.

DOS 20050906
Left Shoulder ROM
(Degrees)	Ortho ~ 6 Mo. Pre-Sep
(20050222) 	MEB ~ 03 Mo. Pre-Sep
(20050629) 	VA C&P ~ 01 Mo. Post-Sep
(20051011) 	
Flexion (180 Normal)	170	90	90	
Abduction (180)	170	-		
Comments	Painful motion; No laxity 		painful motion	
§4.71a Rating	10%	20%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA chose different coding options for the shoulder pain condition, but this did not bear on the rating, consequently both ratings were consistent with §4.71a Schedule of Ratings, musculoskeletal system.  The PEB adjudicated the left shoulder at 10% coded 5099-5003, analogous to degenerative arthritis citing painful motion.  The VA rated the left shoulder at 10% coded 5203 (scapular impairment) citing “limited or painful motion.”  The ROM values reported by the MEB and VA examiner, performed 3 months before separation and a month after separation, are significantly worse than those reported by orthopedics dated 6 months prior to separation.  Such disparity could have very significant implications regarding the Board's rating recommendation.  The Board thus carefully deliberated its probative value assignment to these conflicting evaluations and carefully reviewed the file for corroborating evidence in the 12 months period prior to separation.  All Board members agreed that the greater probative value is placed upon the MEB and VA examination due to their consistent clinical findings and close time reference to the date of separation.  

Board members deliberated as to the worsening ROM parameters and agreed that a build-up of scar tissue was a plausible factor in this case given the timeframe for growth coupled with radiographic findings of abnormal signal intensity consistent with such pathology.  Therefore, members agreed that both the MEB and VA examination, being in close temporal proximity to separation coupled with plausible objective physiologic consistency, reflected a fairly accurate picture of the CI’s impairment.  The shoulder limited ROM at 90 degrees supports the minimum rating under code 5201 (arm; limitation of motion).  After due deliberation, considering the totality of evidence and mindful of VA Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the left shoulder condition under the code of 5201.  Consideration was also given to code 5202 (humerus, impairment) with frequent dislocations of the shoulder joint, but the maximum achievable rating for the non-dominant arm remains at the suggested 20% level.  There was no evidence of ratable peripheral nerve impairment, which could provide for additional or higher rating.  Additionally, there was no further clinical or radiological evidence of the left shoulder joint that suggested non-union of, or mal-union of the clavicle or scapula.  Hence, no alternative shoulder code is supported in justification of a rating higher than that found in the limited ROM criteria under 5201.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the lumbar spine condition, shin splint condition and migraine headache condition 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.  In this case, the radiology work-up revealed the presence of both degenerative disc disease (DDD) of the lumbosacral spine and bilateral shin splints in the lower extremities.  Although present radiographically, the DDD did not affect his functional ability noting full lumbar ROM without pain nor repetitive degradation on VA evaluation.  In case of the shin splints, the examiner’s statement of the CI’s ability to function in spite of symptom flare-ups indicated a mild overall condition.  The migraine headache condition was assessed as “…started during adolescence and have not changed over the years.”  There were no periods of incapacitation or any characteristic prostrating attacks associated with the headaches.  After due deliberation, Board members could not find specific evidence in the STR that documented significance interference by any of these three conditions, with performance of military duties, nor were any physical findings documented by the MEB and or VA examiners which would logically be associated with significant disability.  The Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and 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.  As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the left shoulder 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 20%, coded 5201 IAW VASRD §4.71a.  In the matter of the contended lumbar spine, shin splints, and migraine 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, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Left Shoulder Condition	5201	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			

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 XXXXXXXXXXXXXX, AR20150003253 (PD201100094)

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						

CF: 
(  ) DoD PDBR
(  ) DVA