RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-00671
BRANCH OF SERVICE:  Army	BOARD DATE:  20141202
SEPARATION DATE:  20060920

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantry) medically separated for a right shoulder condition.  This condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent U3/S1 profile and referred for a Medical Evaluation Board (MEB).  “Right shoulder pain,” characterized as “medically unacceptable” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions to include dysthymic disorder.  The Informal PEB (IPEB) adjudicated chronic right shoulder pain as unfitting, rated 10% with cited application of 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’m 80% but have had ongoing and worsening of my stomach which is related have numerous bills from private ones in collection.  I just had a second surgery on shoulder that was messed up since first at Walter Reed.  I do have about 15 inches thick stack of records but doesn’t have new surgery in it so figured instead of making copies.  I have signed release so you guys get them all.  I did include an overview of percentage.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:

Service IPEB – Dated 20060801	VA* - (13.7 to 14.2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Shoulder Pain	5099-5003	10%	Right Shoulder Dislocation…	5201	20%	20071106	
Dysthymic Disorder	Not Unfitting	Acquired Psychiatric Disorder…Major Depression	9434	10%	20071120	
Other x 1 (Not in Scope)	Other x 6 (Not in Scope)	20071106	
Combined:  10%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20070309 (most proximate with completed findings)

ANALYSIS SUMMARY:

Chronic Right Shoulder Pain.  According to service treatment record (STR), the right-handed CI sustained a right shoulder dislocation during wrestling practice on 17 February 2005 requiring reduction in the emergency room. The shoulder continued to dislocate daily despite conservative treatment with a sling and physical therapy, so surgical repair for traumatic instability was performed on 20 June 2006. The CI underwent physical therapy after using a sling for 3 weeks.  Pain persisted despite treatment and range of motion (ROM) was limited.

At an orthopedic follow-up visit on 27 February 2006 (8 months after surgery and 7 months prior to separation) for continued pain and weakness, a second opinion reported that the shoulder was “tight” and could be approached with manipulation under anesthesia and arthroscopy.  The CI opted for continued non-operative treatment and an MEB. 

At the MEB narrative summary (NARSUM) examination dated 17 March 2006, approximately 6 months before separation, the CI reported he had pain rated 5-6/10 that sometimes increased to 9/10.  The pain was in the anterior shoulder, but occasionally radiated to the back of shoulder.  Pain was aggravated by movement or running, and interfered with sleep.  He took narcotic medication several times per week.  He was unable to fire a weapon with his right arm, wear a ruck, do push-ups or sit-ups, or run.  X-rays showed normal bony structures and no arthritis.  Physical examination of the shoulder noted a healed anterior axillary scar, somewhat tender to touch. There was no atrophy, weakness, or signs of instability.

A VA “C&P Progress Note” on 7 November 2006 (6 weeks after separation) noted baseline pain of 1-3/10 and right shoulder weakness.  Motion above the shoulder level was reported to be “functionally lost.”  Examination showed normal strength.  There was no additional loss of ROM with repetitive motion. 

At a VA orthopedic evaluation 7 months after separation, the CI confirmed that he had no further episodes of instability after his shoulder surgery. 

The range-of-motion (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.  

Right Shoulder ROM
(Degrees)	Ortho ~7 Mos. Pre-Sep
	NARSUM ~6 Mos. Pre-Sep
	C&P ~1.5 Mos. Post-Sep
	
Flexion (180 Normal)	150	95**	100	
Abduction (180)	110	94**	100	
Comments	+Painful motion, tenderness	+Guarding	+Guarding, painful motion	
§4.71a Rating	10%*	10% or 20% (PEB 10%)	10%* (VA 20%)	
          *IAW §4.59 (Painful motion)
          **ROM “slightly less” on re-testing several minutes later

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis) with application of the USAPDA pain policy.  The VA rated the condition 20% using the 5201 code (arm, limitation of motion at shoulder level).  Board members agreed that sufficient evidence of painful motion was present to support the PEB’s 10% rating IAW VASRD §4.59, but considered if a higher rating was warranted for limitation of motion under the 5201 code.  The VASRD §4.71a threshold for compensable ROM impairment is “at shoulder level,” i.e., 90 degrees; and the examinations in evidence most proximal to separation demonstrated motion that was above, but near, this level.  The Board debated if the “slightly less” ROM on re-testing on the NARSUM exam provided a reasonable basis for application of VASRD §4.45, which allows for a higher rating if evidence of additional functional loss is present.  The Board concluded that there was sufficient evidence to justify the next higher 20% rating on this basis.  The Board finally concluded that there was no clinical basis for rating under the 5203 code (clavicle or scapula, impairment of), and no evidence of recurrent dislocations after surgery to support a rating under the 5202 code (humerus, other impairment of).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the right shoulder pain condition. 

Contended Mental Health Condition.  The CI was deployed to Horn of Africa from December 2003 to July 2004.  On the Post Deployment Health Assessment (PDHA), the CI denied combat traumas, noted hypervigilance in the past month, denied the need for help for stress; and denied alcohol, emotional or family problems.  Prior to separation, the available STR showed one MH entry dated 21 April 2006 (5 months prior to separation).  This memo was from a psychiatrist to the PEBLO, indicating that the CI was experiencing depressive symptoms associated with his orthopedic injuries, was diagnosed with dysthymic disorder in remission, was responding to antidepressant therapy and met retention standards. 

On the MEB history and physical DD Form 2807, dated 28 March 2006, the CI indicated he had anxiety, difficulty with sleep, and counseling for depression.  The profiling section of the DD Form 2808 listed a diagnosis of anxiety disorder and depression, and assigned an S1 profile.  The examiner was silent about the criteria in support of an anxiety disorder and depression diagnosis. The commander’s statement (6 months prior to separation) mentioned only the orthopedic condition as an impediment to performance of duty. The NARSUM examination noted the CI had recently seen a psychiatrist for sleep deprivation, was thought to have anxiety and depression due to his profile and his difficulty with work and was taking anti-depression and sleep medication without benefit.  Review of the STR showed one prescription for an anti-depressant and two prescriptions for sleep medicine in January 2006. 

A C&P examination on 13 November 2006 (2 months after separation) noted the CI was alleging posttraumatic stress disorder (PTSD).  He reported he was exposed to combat conditions while deployed to Somalia for 8 months, and that his anxiety was due to situational factors.  He planned to start college the following January, and had several close friends and a girlfriend.  He reported his only mental health treatment had been an Army substance abuse program.  He denied legal problems or suicide attempts.  A mental status exam was unremarkable.  A diagnosis of anxiety disorder, not otherwise specified (NOS) was rendered, and a Global Assessment of Functioning (GAF) score of 65 was assigned (connoting mild symptoms or impairment).  The examiner noted his work ended because of physical rather than psychological difficulties and his mental symptoms did not markedly impact his ability to work or attend school.  

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the military disability evaluation system (DES).  The evidence of the available records showed a diagnosis of anxiety disorder was rendered during the DES process.  
The anxiety disorder diagnosis was not forwarded by the MEB or adjudicated by the PEB; therefore the Board determined that this applicant did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  Board members concluded that the preponderance of evidence did not support a diagnosis of PTSD at the time of separation.  Adequate pre-separation evidence was lacking and post-separation evidence more firmly supported a diagnosis of either dysthymic disorder or anxiety disorder.  The Board next considered whether any mental condition, regardless of diagnosis, was unfitting for continued military service.  The Board’s threshold for recommending a not-unfitting determination requires a preponderance of evidence.  All Board members agreed that evidence of the record reflected minimal occupational impairment on the basis of MH related symptoms.  The commander’s statement did not implicate an MH condition as a cause of duty impairment.  At no time during the applicant’s military service did he require a psychiatric hospitalization or emergency care.  No MH condition was profiled or was judged to fail retention standards.  There was no indication from the record that the MH condition significantly interfered with satisfactory duty performance.  The Board therefore concluded that there was insufficient evidence that any MH condition rose to the level of being unfitting at the time of separation.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a determination of unfit for any mental health condition; and therefore, no disability rating can be 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 for rating chronic right shoulder pain 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 disability rating of 20%, IAW VASRD §4.71a. In the matter of any contended MH condition, the Board unanimously recommends no additional disability rating.  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	
Chronic Right Shoulder Pain	5201	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130513, 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 XXXXXXXXXXXXX, AR20150008336 (PD201300671)

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