RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01419
BRANCH OF SERVICE:  Army	BOARD DATE:  20140520
Separation Date:  20040419

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M/Motor Transport Operator) medically separated for right shoulder pain with instability and low back pain(LBP) without neurologic abnormality.  Despite treatment and surgery, the right shoulder and back conditions 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/L3 profile and referred for a Medical Evaluation Board (MEB).  The right shoulder and low back conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the right shoulder pain with posterior instability and LBP without neurologic abnormality as unfitting, rated 10% and 10%, referencing the US Army Physical Disability Agency (USAPDA) pain policy for rating the shoulder condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  “VA automatically rendered these conditions at a hirer [sic] rate.”

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 ratings for the unfitting right shoulder and LBP are addressed below; and, 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.

RATING COMPARISON:

Service IPEB – Dated 20040226	VA - (2 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain (Right Shoulder) w/Posterior Instability 	5099-5003	10%	Right Shoulder Posterior Instability s/p Reconstructive Surgery 	5202	20%	20040217	
Chronic LBP	5299-5237	10%	LBP	5237	Not Service Connected (NSC)	20040217	
Other x 0	Other x 0		
Combined:  20%	Rating:  20%	
Derived from VA Rating Decision (VARD) dated 20040518 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to the VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.
Chronic Pain Right Shoulder w/Posterior Instability.  The CI developed insidious right shoulder pain and instability in January 2001.  The CI underwent several intensive physical therapy (PT) treatments for right shoulder pain; however, the goals were not met and the shoulder pain worsened.  He was evaluated by orthopedics for right shoulder pain and noted to have positive posterior instability.  The orthopedist reevaluated the right shoulder as there was no improvement after 4 months of PT.  The physical exam findings were full range-of-motion (ROM) with limited external rotation, markedly positive tests for instability, with pain over the posterior aspect of the joint.  The examiner diagnosed right shoulder instability, primarily posterior and inferior.  A right shoulder magnetic resonance imaging showed possible mild tendonitis, but no definite tear was identified.  The CI underwent an open right shoulder posterior reconstruction with inferior capsular shift in February 2003.  Post-operatively, he developed some drainage in the posterior aspect of the wound and was seen in the emergency room for treatment.  He was sent to PT for post-operative treatment where the CI’s pain improved by 20%; however, functionally he had not improved at all.  The orthopedist noted that the CI was able to do push-ups.  The MEB narrative summary (NARSUM) exam prepared approximately 5 months prior to separation documented that the CI did well for approximately 6 months after his surgery; however, in the 2 to 3 months prior to that exam, the CI noticed an onset of increasing pain and instability.  He had daily pain of 5/10.  The examiner rated the pain at slight and constant according to the American Medical Association (AMA) pain scale.  The MEB NARSUM physical exam findings are summarized in the chart below.  The CI was given a permanent U3/L3 profile for right shoulder surgery and LBP with specific restrictions of no running, jumping, rucksack, marching, push-ups and pull-ups.  The commander’s statement documented that the CI’s shoulder pain interfered with saluting and performing his MOS duties.  The VA Compensation and Pension (C&P) exam accomplished approximately 2 months after separation documented that the CI had constant recurrent right shoulder dislocation and was right-hand dominant.  His functional impairment was an inability to engage in activities or lift heavy loads.  The VA C&P exam findings are summarized in the chart below.

There were two goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Right Shoulder ROM(Degrees)	MEB  5.40 Mo. Pre-Sep	VA C&P 2.10 Mo. Post-Sep	
Flexion (180 Normal)	145	90	
Abduction (180)	-	70	
Comments
Right hand dominant	Pos. pain limited motion & posterior apprehension sign; Pos. subluxation of glenohumeral joint; 1+ sulcus sign(positive inferior instability); Normal strength	Pos. pain limited motion; Humeral head dislocates inferiorly with abduction; No Deluca criteria	
§4.71a Rating	20% (PEB 10%)	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic pain with posterior instability as 5099-5003 (degenerative arthritis) rated at 10% with application of the USAPDA pain policy.  The VA coded the right shoulder posterior instability status post reconstructive surgery condition as 5202 (other impairment of the humerus) rated at 20%, consistent with infrequent episodes of dislocation and guarding of movement only at shoulder level.  All exams for the right shoulder were adjudged to meet the intent of §4.59, painful motion.  The CI’s primary problem was the right shoulder instability and the 5202 code provides a more accurate description of the CI‘s duty limiting disability.  Rating shoulder instability under code 5202 requires judging the frequency of any dislocations and the amount of “guarding” present with shoulder motion.  The evidence does not contain documentation of “frequent dislocation with guarding of all shoulder movements” as required for the higher 30% rating.  All other evaluation levels are 20%.  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 chronic pain with right shoulder posterior instability coded 5202.

Chronic LBP Condition:  The CI developed chronic LBP as a result of a slip and fall on 11 December 2002 where the small of his back hit against the curb in a parking lot.  He was evaluated by primary care and diagnosed with acute LBP.  He was evaluated by PT and was found to have an antalgic gait with pain on ROM.  The MEB NARSUM exam documented that the CI had LBP symptoms approximately once a month and then it would last 2 to 3 days rated 8/10 in severity and the pain would spontaneously resolve over 2 to 3 days.  The examiner rated the pain according to the AMA pain scale at slight and intermittent.  The MEB NARSUM physical exam findings are summarized in the chart below.  The CI was given a permanent U3/L3 profile for right shoulder surgery and LBP with specific restrictions of no running, jumping, rucksack marching, push-ups and pull-ups.  The CI underwent an updated PT ROM MEB exam in February 2004, approximately 2 months prior to separation.  The exam findings are summarized in the chart below.  At the C&P exam, the CI characterized his pain as squeezing, burning aching, sharp pain which occurred twice per week and lasted for 4 days and rated the pain at 8/10.  The pain was elicited by activity and relieved by rest.  However, at the time of pain, the CI reported he could function with medication and stated his condition did not cause incapacitation. The functional impairment was an inability to lift heavy objects.   The exam revealed the CI had no complaints of radiating pain on movement, muscle spasm was absent, no tenderness was noted and negative bilateral straight leg raise.  Full ROM without pain, fatigue, weakness, lack of endurance or incoordination was also noted.  The C&P exam findings are summarized in the chart below.  There were two goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the following chart:

Thoracolumbar ROM (Degrees)	NARSUM 5.5 Mos. Pre-Sep	PT ROM’s 2 Mos. Pre-Sep	VA C&P 2 Mos. Pre-Sep	
Flexion (90 Normal)	To eight inches from the floor	70	90	
Combined (240)		220	240	
Comment	Normal side/back bending; Minimal tenderness to palpation; No muscle spasm; Normal strength	-	Normal exam; motor/sensory intact	
§4.71a Rating	10%	10%	NSC	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic LBP condition as 5299 analogous to 5237 (lumbosacral or cervical strain) rated at 10% citing a combined thoracolumbar ROM of 220 degrees.  The VA coded the lower back pain condition as 5237 and determined it was not service-connected  The general rating formula for diseases and injuries of the spine considers the CI’s pain symptoms “With or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  The PT exam met the forward flexion and combined ROM criteria for the 10% rating.  The C&P exam was 8 days prior to the PT evaluation and the CI’s exam was normal.  The VA did not grant service-connection for the back pain citing, “We have denied service connection for lower back pain because there is no evidence of any diagnosis of chronic injury or disease to account for your reported symptoms.”  Soon after separation, the CI was employed as a security guard for Walmart and then employed performing general yard maintenance, reporting only shoulder complaints impacting his ability to perform this job.  The CI was never evaluated for his back by the VA after separation.  The Board deliberated on VASRD §4.31, a 0% rating versus a 10% rating.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.31 (a 0% rating), Board consensus was that a 0% rating for the chronic LBP condition is the most appropriate recommendation in this case.

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 right shoulder condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic pain with right shoulder posterior instability, the Board unanimously recommends a disability rating of 20%, coded 5202 IAW VASRD §4.71a.  In the matter of the chronic LBP condition and IAW VASRD §4.71a, the Board, by a majority vote, recommends a 0% rating.  The single voter for dissent elected not to submit a minority opinion.  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 Pain Right Shoulder w/Posterior Instability	5202	20%	
Chronic Low Back Pain	5237	0%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130917, 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 XXXXXXXXXXXXXXXXX, AR20150006339 (PD201301419)

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 description without modification of the combined rating or 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