RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX                                                                       BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1100739 		                              SEPARATION DATE:  20031024
BOARD DATE:  20120209

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve PFC/E-3 (88M, Motor Transport Operator), medically separated for left shoulder pain.  While at basic combat training (BCT), the CI fell from an obstacle on the obstacle course and had a posterior dislocation of his shoulder.  He did not respond adequately to treatment and was unable to perform within his Military Occupational Specialty (MOS) or meet physical fitness standards.  He was issued a permanent U3 profile and underwent a Medical Evaluation Board (MEB).  He was found to have recurrent posterior subluxation and left shoulder and AC joint arthrosis.  He was referred to the  Physical Evaluation Board (PEB) 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 PEB adjudicated the left shoulder condition as unfitting, rated at 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% combined disability rating.

CI CONTENTION:  The CI states:  “See medical records-conditions for shoulder and back continuously bother me and the VA determined me 30% disabled.”

RATING COMPARISON:

Service IPEB – Dated 20030910	VA (1.5 Mo. After Separation) – All Effective Date 20031025	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Shoulder Pain	5099-5003	0%	Residuals, Left Shoulder Dislocation With Tendinitis And Degenerative Changes	5201-5010	10%*	20031209	
↓No Additional MEB/PEB Entries↓	Low Back …	5237-5010	10%	20031209	
Combined:  0%	Combined:  20%*	
* Code changed to 5010-5202 and increased to 20% effective 20050810 (combined 30%)

ANALYSIS SUMMARY:  The military services, by law, can only rate and compensate for those conditions that were found unfitting for continued military service based on the severity of the condition at the time of separation and not based on possible future changes.  However, the Department of Veterans’ Affairs (DVA), operating under a different set of laws, can rate and compensate all service connected conditions without regard to their impact on performance of military duties, including conditions developing after separation that are direct complications of a service connected condition.  The DVA can also increase or decrease ratings based on the changing severity of each condition over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations compared to VASRD standards, as well as the fairness of PEB fitness adjudications at the time of separation.  The Board’s threshold for countering DES 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.

Left Shoulder Condition.  The CI was right hand dominant.  There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation.

Goniometric ROM-Left Shoulder	MEB ~2 Mo. Pre-Sep
(20030806)	VA C&P ~ 2 Mo. After-Sep
(20031209)	
Flexion (0-180)	150⁰	120⁰	
Abduction (0-180)	110⁰	“90⁰/180⁰”	
Comment	TTP AC joint; Inter & ext rotation ~ 40⁰; “posterior instability on exam.  “I cannot dislocate him, but he can sublux his shoulder posteriorly.”	Posterior pain with ROM; “sliding of the joint in the acrcmioclavicular area”; + crepitance; pain at ROM.  	
§4.71a Rating	10%-20% (PEB 0%)	10%-20% (VA 10%)	

The CI suffered left shoulder pain after a fall during combat training with radiographic evidence of posterior dislocation of that shoulder.  He was taken to a local ER where he had a closed reduction (no surgery).  He was treated conservatively and was able to complete his combat traing and graduated in June 2002.  At that time, he was activated and continued to have left shoulder pain and intermittent posterior subluxation of the shoulder.  The MEB exam documented and diagnosed posterior instability on his left shoulder with AC joint arthrosis with ROMs charted above.  The commander’s statement indicated “he is currently unable to lift his arm above his shoulder and has considerable amount of pain.”

The VA exam two months post-separation indicated crepitus, laxity in the AC joint, and pain limited motion.  ROM, as documented in the C&P exam was open to interpretation, and the shoulder exam is excerpted below:  

“Left shoulder forward elevation 120 degrees, backward extension to approximately 30 degrees, abduction 90/180 degrees, and adduction 30/30 degrees.  With the range of notion he indicates pain in the posterior aspect.  There is noted sliding of the joint in the acrcmioclavicular area.  He indicates it is a sharp pain if he attempts to go beyond ranges of motion of the left. Passive range of motion is the same.  There is also evidence of crepitance.”

The VARD narrative indicated abduction of 90⁰, but it is as likely to be pain onset of 90⁰ and completed active abduction to 180⁰.  The VA rated this exam at 10%.  A VA exam remote from separation, at 24 months post separation, indicated forward painful flexion to 140⁰ and abduction to 110⁰, with new symptoms of shoulder dislocations twice per week.  This was adjudged post-separation worsening.  

The Board deliberated based on the data above.  Both exams indicated limited motion of the shoulder with the VA exam specifying painful motion.  The VA exam specificed 90⁰ was not considered an active ROM limit as just described.  The commander’s statement was the sole support for functional limitation, IAW VASRD §4.40; of arm, limitation of motion at shoulder level, and was not supported by any goniometric ROMs or treatment notes.  The examiner’s indication of subluxation without ability to dislocate was adjudged as not being to the level of frequent dislocations.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), and §4.59 (painful motion) the Board recommends a separation rating of 10% for the shoulder condition.

Other Contended Conditions.  The CI’s application asserts that compensable ratings should be considered for his back condition.  This condition was reviewed by the action officer and considered by the Board.  There was no evidence for concluding that this condition interfered with duty performance to a degree that could be argued as unfitting.  The commander’s statement did not mention the back condition and the back condition was not profiled.  There was no evidence for concluding that the back condition interfered with duty performance to a degree that could be argued as unfitting.  The Board determined therefore that the back condition was not subject to service disability rating.

Remaining Conditions.  Several additional non-acute conditions or medical complaints were also documented.  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.  No other conditions were service connected with a compensable rating by the VA within 12 months of separation or contended by the CI.  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.  In the matter of left shoulder pain condition, the Board, by a vote of 2:1, recommends a rating of 10% IAW VASRD §4.71a.  The single voter for discent (who recommended 20%) elected not to submit a minority opinion.  In the matter of the back 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 and that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Left Shoulder Pain	5299-5010	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110902, 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