RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1300106
BRANCH OF SERVICE:  army	BOARD DATE:  20120507
SEPARATION DATE:  20030416

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (68Y10/Basic Trainee) medically separated for a left (non-dominant) upper extremity condition.  He sustained a fracture to his left humeral shaft during basic training in October 2002, requiring surgical fixation.  He was subsequently diagnosed with osteopetrosis (an inherited bone disease vulnerable to fractures).  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded the left humerus fracture (surgical residuals) and osteopetrosis as separate conditions to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) combined the submissions as a single unfitting condition characterized as “chronic left upper extremity pain following fracture of the humerus ... with an underlying inherited disorder (osteopetrosis)” recognizing the condition existed prior to service (EPTS) factor as permanently service aggravated.  The condition was rated 0%, citing criteria of the 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:  “Still having issues with shoulder including weakness and lost range of motion.”

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 left shoulder condition is addressed below; 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.  The Board acknowledges the impairment with which the CI’s service-connected condition continues to burden him, but notes that the Disability Evaluation System (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 (DVA), operating under a different set of laws.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:  

Service IPEB – Dated 20030318	VA (4 Mos Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Residuals, Left Humeral Fracture	5099-5003	0%	Residuals, Left Humeral Fracture	5202	0%	STR*	
Combined:  0%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20030730 (most proximate to date of separation [DOS). 
* VA rating derived from Service treatment record (STR); no VA rating examination.

ANALYSIS SUMMARY:    

Left Upper Extremity Condition.  The CI was diagnosed with a displaced fracture of the proximal left humerus after a fall, and underwent open reduction and internal fixation (ORIF).  Post-operative imaging revealed some persistent mild angulation with incomplete healing and a previously unrecognized non-displaced fracture of the tuberosity (articulation with the shoulder joint).  Further surgical intervention was judged to be imprudent, especially considering the potential operative complications due to the now-recognized osteopetrosis.  The CI regained range-of-motion (ROM) with physical therapy, but was left with persistent pain interfering with function.  The narrative summary (NARSUM) noted, “Currently ... he has no pain at rest or with activities of daily living.  However, with strenuous activity he does have pain in his left shoulder as well as an achiness.”  The physical exam documented no tenderness, no atrophy, and full strength.  The neurologic exam was otherwise normal.  ROM measurements were active abduction to 160 degrees (normal 180 degrees, minimal compensable 90 degrees) and forward flexion to 180 degrees (normal).  Passive abduction was 180 degrees.

The Board directs attention to its rating recommendation based on the above evidence.  Members first agreed that any separate disability intrinsic to the osteopetrosis condition is appropriately subsumed in a single disability rating for the left upper extremity impairment in evidence as was determined by both the PEB and VA.  Although that condition may have contributed to the overall “unfitness,” the clinical course intrinsic to osteopetrosis itself was clearly unaltered by military service (i.e., not permanently service aggravated).  The PEB indicated that its 0% rating was for “pain, slight,” per the USAPDA pain policy, under the analogous code 5003 (degenerative arthritis).  The VA rated under code 5202 (humerus, other impairment of), judging that the minimum compensable (20%) criteria of either “moderate malunion” or “recurrent dislocation” were not satisfied.  Members agreed that 5202 is clinically compatible with the diagnosis and that even applying it analogously for disability, a compensable rating cannot by justified by the evidence.  Members then deliberated the options for achieving at least the minimum 10% under an analogous 5003 code; code 5310 (traumatic arthritis was suggested.  Since no minimum rating was achievable based on ROM criteria, it would require application of either VASRD §4.59 (painful motion) or §4.40 (functional loss).  Member consensus was that painful motion was not in evidence.  Regarding functional loss, the NARSUM clearly stipulated that pain was present only with strenuous activities.  Member consensus was that this limitation was not of sufficient social or occupational impact to meet a reasonable threshold for application of §4.40.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), member consensus was that no rating greater than 0% was supported IAW VASRD §4.71a criteria; the Board thus concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left upper extremity condition.

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 left upper extremity condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the left upper extremity condition and IAW VASRD §4.71a, the Board by a vote of 2:1 recommends no change in the PEB adjudication.  The single voter for dissent (who recommended a 10% rating under code 5099-5010) did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:   

UNFITTING CONDITION	VASRD CODE	RATING	
Left Upper Extremity Pain Following Fracture of the Humerus	5099-5003	0%	
COMBINED	0%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120225, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130010948 (PD201300106)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA