RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX 	BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1100209 	                              SEPARATION DATE:  20050714
BOARD DATE:  20120113

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (88M, Truck Driver), medically separated for chronic right shoulder pain.  The CI injured his right shoulder playing basketball in June 2003.  He was eventually diagnosed with a rotator cuff tear which did not respond to conservative treatment.  In October 2003, he underwent surgery (arthroscopic subacromial decompression and mini open rotator cuff repair).  The CI had good recovery initially, but then developed recurrent pain in the right shoulder due to failure of the rotator cuff repair.  In November 2004, the CI underwent a second surgery (arthroscopic repair of a superior labrum anterior-posterior tear, a distal one-third clavicle fracture and a middle deltoid avulsion).  Despite surgery and post-operative physical therapy, he did not respond adequately to treatment and was unable to perform within his Military Occupational Specialty (MOS) or deploy with his unit.  He was issued a permanent U3 profile and underwent a Medical Evaluation Board (MEB).  Right shoulder pain was forwarded to the Informal Physical Evaluation Board (IPEB) as medically unacceptable IAW AR 40-501.  No other conditions appeared on the MEB’s submission.  Other conditions included in the Disability Evaluation System (DES) packet will be discussed below.  The IPEB adjudicated the right shoulder chronic pain condition as unfitting, rated 0%, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated with a 0% disability rating.

CI CONTENTION:  The CI states:  “I was discharged on July 14, 2005 after MEB for Right shoulder Reconstruction surgery with a 0% Rating. I was granted service connection with disability/severance pay.  There were several things rated at 0% at time of discharge need to be evaluated.  Currently undergoing physical therapy at the Nashville VA Hospital for my right shoulder and left knee; left knee surgery in Oct 2010 at Nashville VA Hospital. Still continue to have issues with them.”  

RATING COMPARISON:

Service IPEB – Dated 20050503	VA (2 Mo. Pre-Separation) – All Effective Date 20050715	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Pain	5099-5003	0%	Right Shoulder, … (s/p Surgery)	5299-5201	0%	20050520	
↓No Additional MEB/PEB Entries↓	Right Hip, DJD	5003	10%	20050520 	
	Left Knee, DJD	5003	10%	20050520	
	0% x 5/Not Service Connected x 5	20050520	
Combined:  0%	Combined:  20%	

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  The Board wishes to clarify that it is subject to the same laws for Service disability entitlements as those under which the military DES operates.  While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition.  The DES has neither the role nor the authority to compensate service 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 (DVA), operating under a different set of laws (Title 38, United States Code).  The VA is empowered to compensate all service connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the veteran’s disability rating should his degree of impairment vary over time.  The Board evaluates VA evidence proximal to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness decisions and rating determinations for disability at the time of separation. 

Chronic Right Shoulder Pain.  There were two goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation.  These exams are summarized in the chart below.

Goniometric ROM – 
R Shoulder	MEB ~ 3 Mo. Pre-Sep	VA C&P ~ 2 Mo. Pre-Sep	
Flexion (0-180)	120⁰	180⁰	
Abduction (0-180)	110⁰	180⁰	
Comment	Painful motion; No instability; mild crepitation; +pain and weakness with maneuvers; no atrophy	No Deluca; See text	
§4.71a Rating	10%*	0%	
		*With application of §4.59

The MEB exam noted limitation of shoulder flexion and abduction, with pain at the terminal limits of abduction and external rotation.  Diagnostic maneuvers (O’Briens and Jobe) also elicited pain as well as weakness.  The examiner additionally documented some mild crepitation, but found no evidence of instability.  Conversely, the VA exam documented no limitation of shoulder ROM; it indicated normal ROMs.  There was no specific comment on painful motion; however, the VA examiner did note flares with incapacitation, narcotic medication use, pain and difficulty reaching in the history.  But, the VA Compensation and Pension (C&P) exam further indicated that joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use.  According to the MEB examiner, plain films revealed a resected distal clavicle with no evidence of heterotopic ossification, an indwelling metal suture anchor and a planed acromion.  Plain films in May 2005, taken for the VA C&P exam, noted no osseous abnormality.  The MEB examiner concluded that “given the constant, low-grade pain he is experiencing and the activity-related pain with reaching and pulling activities he is unable to return to his MOS in grade.”  The commander noted that the CI was physically incapable of reasonably performing his MOS duties (drive, perform maintenance, lift heavy equipment) due to the right shoulder reconstruction surgery, and added, “simply stated, he is totally incapable of performing his duties in a combat environment.”  The PEB and the VA used different coding for the condition, but this did not bear upon the rating.  The PEB coded analogous to degenerative arthritis and directly referenced the USAPDA pain policy to rate at 0%.  The VA coded analogous to arm, limitation of motion and rated at 0% for normal range of motion.  There was operative distal clavicle excision, labrum repair, and surgical evidence of deltoid muscle avulsion with no radiographic evidence of degenerative arthritis; therefore, coding options considered were analogous to 5003 (Arthritis, degenerative), 5010 (Arthritis, due to trauma), 5019 (Bursitis), 5203 (Clavicle or scapula, impairment of), or 5201 (Arm, limitation of motion of).  Given the clavicle resection, coding analogous to 5203 was considered predominate.  

The Board next considered the probative value of the exams in evidence.  It is obvious that there is a clear disparity between the service examination and the VA examination, with 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 Service file for corroborating evidence in the 12-month period prior to separation.  The exams took place just over one month apart, with the VA exam occurring closer to the time of separation.  The service exam was a detailed and focused right shoulder exam performed by the attending orthopedic surgeon.  The C&P exam was not performed by an orthopedic specialist, the exam was not detailed or specific, and did not involve any diagnostic maneuvers specifically designed to elucidate shoulder joint pathology.  Additionally, the completely normal ROMs documented at the C&P exam were not consistent with the pain-limited ROMs that had previously been well documented in the STR.  The Board adjudged, therefore, that the more comprehensive service MEB exam was of greater probative value.  The Board noted that the degree of limitation of shoulder ROMs documented at the MEB exam would not be compensable under the shoulder-specific joint coding.  However, there was significant evidence of painful motion on exam to justify application of VASRD §4.59.  Painful motion of the right shoulder was also well documented in the service treatment records.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 10% for the chronic right shoulder pain condition, coded 5299-5203.

Other Contended Conditions.  The CI’s application asserts that a compensable rating should be considered for left knee degenerative joint disease (DJD).  The CI sought evaluation for left knee pain after an injury during physical fitness training in 1996.  This condition was not clinically or occupationally significant during the MEB period, did not carry an attached profile and was not implicated in the commander’s statement.  This condition was reviewed by the action officer and considered by the Board.  There was no evidence for concluding that the left knee condition interfered with duty performance to a degree that could be argued as unfitting.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting addition of left knee DJD as an unfitting condition for separation rating.  

Remaining Conditions.  Several additional non-acute conditions or medical complaints were documented in the MEB history and physical (bilateral patellofemoral syndrome, bilateral plantar fasciitis, cervical spine DJD with radiculopathy, prior nasal surgery, history of right thumb fracture, history of hand fracture, acid reflux, hepatitis B carrier, hemorrhoids, seborrhea, Motrin allergy, chest pain due to acid reflux, heart murmur, elevated blood pressure, history of chest pain/dehydration and the need for a root canal/crown).  None of these conditions were significantly clinically or occupationally active during the MEB period, none carried attached profiles and none were implicated in the commander’s statement.  These conditions were reviewed by the action officer and considered by the Board.  It was determined that none could be argued as unfitting and subject to separation rating.  The condition of right hip degenerative joint disease was noted in the VA rating decision proximal to separation, but was not documented in the DES file.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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 the right shoulder condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic right shoulder pain condition, the Board unanimously recommends a rating of 10% coded 5299-5203 IAW VASRD §4.71a.  In the matter of the left knee pain condition or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

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 Right Shoulder Pain S/P Surgery	5299-5203	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110328, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans' Affairs Treatment Record

	

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 

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 10% 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