RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01323
BRANCH OF SERVICE:  Army	BOARD DATE:  20141031
SEPARATION DATE:  20041222

SUMMARY OF CASE:  The evidence of record indicates this covered individual (CI) was an active duty SPC/E-4 (92F/Petroleum Supply Specialist) medically separated for left shoulder pain.  This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or full physical fitness standards; he was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The shoulder condition, characterized as “left shoulder pain…” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “chronic left shoulder pain…” as unfitting, rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The US Army Physical Disability Agency made an administrative change that did not affect the disability rating percentage (the change merely indicated the soldier would be separated with severance pay).  The CI submitted no appeals and was medically separated.

CI CONTENTION:  “I was never given a proper rating or able to receive a physical before discharge.”  The CI also attached a one page statement to his application which was reviewed by the Board and considered in its recommendations.

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 (BCMR).

RATING COMPARISON:

Service Admin PEB – Dated 20041119	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Shoulder Pain…	5201	0%	…Instability Left Shoulder	5299-5201	0%	STR	
No Additional MEB/PEB Entries in Scope	No Other VA Entries in Scope		
Combined:  0%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20050112.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that his disability disposition was rushed.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations.  Redress beyond the Board’s scope of recommendations, as noted above, must be addressed by the Army BCMR and/or the United States judiciary system.

Left Shoulder Condition. The CI presented to primary care on 22 April 2003 with a 3-month history of left shoulder (non-dominant) pain after falling off of a truck.  An X-ray that day was normal.  An orthopedist saw him a week later and noted instability.  He was referred to physical therapy which did not resolve his symptoms.  A magnetic resonance imaging performed on 21 May 2003, showed an anterior labral (connective tissue around the shoulder socket) tear.  This was surgically repaired on 3 July 2003.  Following surgery, he was begun in rehabilitation, but did not recover sufficiently to resume full duty.  On 5 January 2004, he was evaluated in orthopedics and the MEB process initiated.  He was noted to have flexion greater than 100 degrees.  On 8 March 2004, he was seen in both orthopedics and physical therapy.  The range-of-motion (ROM) values are charted below.  The last clinical visit in evidence was on 27 August 2004, 3 months prior to separation.  The CI was noted to have guarding and apprehension on movement, indicative of painful motion, as well as signs of impingement and instability.  The commander noted on 24 October 2004 that the CI displayed wincing behavior when raising his arm above his shoulder and when bearing loads with his arm.  This implies that the CI could raise his arms above his shoulder, but does not distinguish between flexion and abduction.  The narrative summary was dated 9 November 2004, but relied upon an examination on 9 July 2004.  The CI reported difficulty with overhead work.  He had pain above 90 degrees in flexion and abduction.  The CI did not report for the VA Compensation and Pension (C&P) examination scheduled on 24 November 2003, 13 months prior to separation.  His first evaluation was on 6 April 2007, over 27 months after separation and well outside the 12 month post-separation window used for rating purposes.  The ROM evaluations in evidence the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Shoulder ROM
(Degrees)	PT ~9 Mo. Pre-Sep	Ortho ~9 Mo. Pre-Sep	Ortho ~4 Mo. Pre-Sep	
Flexion (180 Normal)	115	170	FROM	
Abduction (180)	80	>90	95-100	
Comments	Pain at end range of all ROM; 8 months post-operative	Pain with overhead activity; 8 months post-operative	Instability and signs of impingement; 13+ months post-operative	
§4.71a Rating	20%	10%*	10%*	
*§4.59 Rating

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the shoulder at 0% using the code 5201 (limitation of motion of the arm).  The VA rated the shoulder at 0% as well, using the same code analogously, noting that the CI did not report for his C&P examination.  The ROM measured by the orthopedist on 27 August 2004 was both the most remote from surgery and the most proximate to separation of the three values in evidence within one year of separation.  These show motion above the shoulder which is supported by the commander’s comments 2 months later.  Neither subluxation nor ankylosis was observed.  Painful motion was present though and this supports a 10% rating IAW VASRD §4.59.  The Board found no route to a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left shoulder 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.  The Board surmised from the record or PEB ruling in this case that no prerogatives outside the VASRD were exercised.  In the matter of the left shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5201 IAW VASRD §4.59 and §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board recommends modifying the case determination as follows, effective the date of medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Left Shoulder Pain…	5201	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, 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 XXXXXXXXXXXXXXX, AR20150004178 (PD201301323)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA