RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01258
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040801

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard, E-3, (Light Wheeled Vehicle Mechanic) medically separated for recurrent shoulder pain (right) and instability and low back pain (LBP).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS), but alternate physical fitness testing was authorized.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “dislocating right shoulder with large Hill-Sachs lesion and low back pain” to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded gastro-esophageal reflux disease (GERD) and plantar fasciitis as meeting retention standards.  The “mechanical low back pain” was found to be existed prior to service (EPTS) and not permanently service aggravated (PSA).  The PEB also found the shoulder condition to be EPTS, but PSA “yes,” with an undetermined EPTS deduction.  The Informal PEB (IPEB) adjudicated “recurrent shoulder pain (right) w/instability” as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Injuries/bad shoulder, lower back injury, shaving profile, plantars fasciitis/both feet/ADHD.”

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 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.

RATING COMPARISON:

Service IPEB – Dated 20040712	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Recurrent Shoulder Pain…	5099-5003	0%	Right Shoulder Instability…	5003-5202	0%	STR	
Mechanical Low Back Pain	EPTS	Low Back Injury	NSC	
GERD	Not Unfitting	GERD	NSC	
Plantar fasciitis	Not Unfitting	Plantar fasciitis	NSC	
Other x 0 (Not in Scope)	Other x 3 (Not in Scope)		
Combined:  0%	Combined: 0%	
Derived from VA Rating Decision (VARD) dated 20041115 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Shoulder Condition.  The STR documents that the right hand dominant CI fell and sustained a right shoulder dislocation on 14 August 2002.  Although the CI was in the Army Guard, the emergency room note indicates that he was seen as a dependent.  On 22 October 2002, physical therapy (PT) evaluated the CI.  The plan was for supervised rehabilitation to reduce the chance of recurrent dislocations/subluxations with an anticipated return to full participation in recreational sports and guard duty in three months.  On 8 November 2003, the medical records were reviewed and the CI was found fit and deployable.  He was then activated on 15 November 2003.  Two days after activation, on 17 November 2003, a Guard physician noted that the CI continued to have pain with certain movements and lifting, endorsed “popping” a lot, could not lift more than 35 pounds, that it was hard to work overhead, and could not do push-ups.  At a MOS Medical Retention Board on 24 November 2003, the CI reported that he still had weakness in his shoulder with certain motions, but felt that he could meet military duties in a worldwide field environment.  He was then retained in his current MOS.  A 9 February 2004 orthopedic surgery assessment listed a history of a traumatic dislocation with vague symptoms.  The CI reported a two to 3-month history of pain since his activation.  On exam, he was noted to have full range-of-motion (ROM).  He was thought to have a possible tear of the labrum, cartilage lining of the shoulder joint, and tendinitis.  A right shoulder X-ray that day showed a suspected Hill-Sachs fracture (humeral head cortical depression from forceful impaction in anterior shoulder dislocation).  On 10 March 2004, a right shoulder arthrogram (real time X-ray with joint contrast injection) showed a moderate-sized Hill-Sachs impaction fracture, likely secondary to previous anterior shoulder dislocation, which was stable since February 2004.  The same day, a right shoulder magnetic resonance imaging showed tendon damage and a Hill-Sachs deformity.  The CI was recommended for MEB and evaluated in orthopedics on 11 March 2004.  The CI reported increased pain and subjective instability in his right shoulder secondary to the increase in activity since activation.  On exam, he had full ROM which was symmetric to the unaffected left side with anterior instability.  He was thought to have a good prognosis as long as he avoided provocative maneuvers.  In orthopedics on 19 May 2004, the CI reported shoulder pain with many activities and a sense of pending instability.  The exam showed symmetric right and left shoulders, full active ROM, and normal strength (5/5), stability, sensation, and pulses.  Provocative diagnostic tests were negative with the exception of guarding with attempts at load and shift the shoulder.  The diagnosis listed a (prior) right shoulder anterior dislocation without significant improvement from years of non-surgical treatment.  No surgical intervention was planned.  The 18 June 2004 MEB narrative summary (NARSUM) by family medicine documented the right shoulder pain following an anterior dislocation and cited the 19 May 2004 (above) orthopedic exam.  While the CI’s shoulder was stable until activated in November of 2003, increased physical activity caused pain and instability.  The CI complained of increased pain with loadbearing and activity.  Pain was relieved with rest, ice, medication, and use of a sling.  The CI experienced episodic periods of instability, with certain activities, and increased concerns for possible re-dislocation.  Attempts at rehabilitation had not improved his overall status.  The diagnosis listed a dislocating right shoulder with a large Hill-Sachs lesion.  The CI failed to show for the VA Compensation and Pension (C&P) exams proximate to separation.  The first record in evidence after separation on 27 August 2004, was almost 2 years later on 20 July 2006 in orthopedics.  He was noted to have a “completely stable right shoulder” and “unremarkable right shoulder exam.”

The Board directed attention to its rating recommendation based on the above evidence.  The IPEB rated the right shoulder condition 0% (VA code 5099-5003; disability rating by analogy-degenerative arthritis).  The IPEB cited pain, instability, no recurrent dislocation, and full active ROM.  It noted that this was an EPTS condition, but that no deduction could be determined.  The VA rated the right shoulder condition 0% (5003-5202; degenerative arthritis-humerus, other impairment of).  The VARD cited failure to report for a C&P exam and no condition warranting a compensable evaluation.  The Board first considered the EPTS determination and determined that the right shoulder condition was clearly EPTS.  It then considered the EPTS contribution.  The PEB determined that this was indeterminate.  However, the Board noted that the CI clearly reported pain with motion, “popping,” and limitations in lifting and working overhead when evaluated 2 days after activation.  These findings support a minimum of 10% for painful motion under multiple codes.  The Board then considered the rating prior to any deduction.  There was no scapulohumeral ankylosis for consideration under 5200.  There was no arm limitation of motion for consideration under 5201.  There was no loss of head, nonunion, or fibrous union of the humerus for consideration under 5202.  There was no recurrent dislocation at the scapulohumeral joint for consideration under 5202.  There was no dislocation, nonunion, or malunion of the clavicle or scapula for consideration under 5203.  There was painful motion to support a 10% rating IAW §4.59 (painful motion).  This was also present at activation though and, after the EPTS deduction, a 0% rating remains.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right shoulder condition.

Low Back Pain Condition.  The record documents that the CI experienced back pain following a motor vehicle accident (MVA) in January 1999, 20 months prior to accession.  On the 9 September 1999 enlistment history and physical (H&P) the CI recorded a history of recurrent back pain since a 1999 MVA.  He reported the lower back strain was treated with an anti-inflammatory medication and PT.  The CI reported that after three months of PT “my back was fine.”  On 19 May 2004 lumbar (L) spine X-ray showed normal vertebral body heights and disk spaces and no evidence of spondylolisthesis (forward displacement of vertebra after a fracture).  At the 19 May 2004 orthopedic exam the CI reported a history of chronic LBP since the MVA in 1999.  The CI failed to improve despite non-surgical interventions of anti-inflammatory medications, activity modification, and PT.  He complained of increased pain with activity.  The exam of the L spine showed mild paraspinal muscle tenderness (R>L) which was non-anatomic.  The back ROM values showed flexion reduced to 80 degrees from the normal 90, but otherwise normal.  Provocative diagnostic tests (straight leg raise) were negative.  Lower extremity strength (5/5), sensation, and reflexes were intact.  The diagnosis listed stable chronic LBP without significant improvement from years of non-surgical treatment.  The 18 June 2004 MEB NARSUM documented the chronic LBP that began with a MVA in 1999.  The CI complained of increased pain with activity and prolonged standing.  Pain was relieved with rest, ice, and medication.  The back pain was described as 3-4/10, constant, dull to sharp sensation, with exacerbations to 5/10 pain.  The NARSUM cited the exam findings from the 19 May 2004 orthopedic surgery exam.  The diagnosis listed a LBP.

The Board directed attention to its rating recommendation based on the above evidence.  The Board’s main charge regarding this condition is evaluation of the PEB determination that the LBP was an EPTS condition.  The Board’s authority for recommending a change in the service’s EPTS determination is not specified in DoDI 6040.44, but is considered adjunct to its DoD‐specified obligation to review fitness adjudications.  As with its consideration of fitness adjudications, the Board’s threshold for countering service EPTS determinations is higher than the VASRD §4.3 “resolution of reasonable doubt” standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board determined that the evidence is clear that this was an EPTS condition.  It then considered service aggravation and observed that it is not unusual for individuals with preexisting, but asymptomatic conditions to become symptomatic once they undergo the increased activity and rigors attendant to a military lifestyle.  The 12 July 2004 IPEB determined the unfitting LBP condition (VA code 5237; lumbosacral strain) existed prior to enlistment and was not PSA.  While there were periodic reports of recurrent LBP, there was no documentation of any further back injury or trauma in the service.  The Board noted that the CI was only seen one time for his LBP during his second activation and that was in conjunction with the evaluation of his shoulder as part of the MEB process.  The evidence does not support that the LBP was permanently aggravated beyond its natural progression while in the military service.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the LBP condition.  The Board noted that even if the condition were determined to be service aggravated, a 10% EPTS deduction would be warranted under VASRD§4.59 at accession per the CI’s history of LBP since the MVA.

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were GERD and plantar fasciitis.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  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.  Neither of these conditions was profiled at separation or during his military service, implicated in the commander’s statement, or judged to fail retention standards.  Both were reviewed by the action officer and considered by the Board.  There was no indication from the record that either of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the either of the contended conditions; and, therefore, no additional disability ratings 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the right shoulder condition and the low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended GERD and plantar fasciitis 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, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130909, 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 XXXXXXXXXXXXXXXXXXXX, AR20150018460 (PD201301258)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA