RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00595
BRANCH OF SERVICE:  Army	BOARD DATE:  20150708
SEPARATION DATE:  20070920

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Motor Transport Operator) medically separated for right shoulder pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The condition, characterized as “right shoulder pain and dislocation, status post-surgery” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (left shoulder pain and dislocation, status post-surgery), hyperlipidemia, chronic mechanical lower back pain and retropatellar pain syndrome, both knees) for PEB adjudication.  The Informal PEB adjudicated “right shoulder pain status post-surgical repairs for repeated subluxation/dislocation” as unfitting, rated 10%, citing 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:  The CI contends that he continues to have discomfort, numbness and tingling in hands and shoulders.  His complete submission is at Exhibit A.  

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.

RATING COMPARISON:  

IPEB – Dated 20070820	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Pain…	5099-5003	10%	Right Shoulder Dislocation, Status Post Surgery	5201-5014	10%	20071208	
Left Shoulder Pain	Not Unfitting	Left Shoulder Dislocation, Status Post Surgery	5203-5201	0%	20071208	
Other MEB/PEB Conditions x 3 (Not In Scope)	Other x 5 	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20080123 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Shoulder Pain Condition.  The narrative summary (NARSUM) noted the CI had a history of repeated right shoulder subluxations not improved by physical therapy and underwent right shoulder surgery for repair and tightening of the joint capsule 2 October 2006.  The CI had a good surgical outcome with no further instability or subluxations noted, but developed limited range-of-motion thought to be due to some post-surgical tightening (contracture) of the joint capsule, with shoulder pain, aggravated by activity.

At the MEB examination on 25 May 2007, the CI reported constant pain in the shoulder, increased by repetitive activities.  The MEB physical exam noted the appearance of the right shoulder was normal without tenderness to palpation.  Shoulder ROM was flexion 131 degrees, and abduction 111 degrees (normal 180 for each).  Physical therapy measured ROM on 29 January 2007 and noted forward flexion of 130, 135, and 129 degrees; abduction of 110, 115, and 108 degrees, limited by contracture; with mildly limited internal and external rotation, limited by pain and contracture.  The PEB requested additional information regarding the noted “contracture” of the shoulder.  In an addendum dated 20 August 2007, the surgeon explained the persistent tightening was the result of the surgical procedure which “has not stretched out to the point that he can perform full military duties,” but noted the CI could perform daily activities without significant problems.  Shoulder ROM at the addendum was flexion of 150 degrees and abduction of 130 degrees and pain with external rotation of the arm.  There was normal strength of the shoulder with no evidence of instability.  

At the VA Compensation and Pension (C&P) joints examination on 8 December 2007, a month after separation, the CI reported shoulder stiffness and intermittent pain with remissions.  No recurrent dislocations were noted since the surgery.  Right shoulder ROM was flexion of 165 degrees and abduction of 145 degrees with painful motion and no additional loss of ROM with repetitive use noted.  Right shoulder X-rays reportedly showed “post-surgical changes.”

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition 10%, coded 5099-5003 and cited the USAPDA pain policy.  The VA also rated it 10%, coded 5201-5014 (osteomalacia with limited arm motion).  The Board agreed that the evidence in record supports a 10% rating coded according to 5003 criteria for limited motion of a single major joint or coded as 5201 or 5202 (humerus impairment) with consideration of VASRD §4.59, §4.40 and §4.45 for pain and functional loss caused by repetitive motion.  The Board reviewed to see if a higher evaluation was achieved with any applicable code IAW VASRD §4.71a, but there was no evidence of limited arm motion “at shoulder level,” which is taken to be 90 degrees of flexion; impairment of the clavicle or scapula; humerus impairment with moderate deformity or recurrent subluxations; or, shoulder ankyloses to provide a higher rating.  The Board determined the evidence did not support a higher rating than 10% for the shoulder condition and noted that the PEB’s reliance on the USAPDA pain policy was not detrimental to arriving at the highest rating and therefore no change to the code is recommended.  After due deliberation in consideration of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right shoulder condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left shoulder condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

Left Shoulder Condition.  The NARSUM noted the CI had a history of left shoulder surgery for recurrent dislocations and multidirectional instability and was granted a waiver on enlistment for the condition.  There are no notes in the service treatment record for evaluation or treatment of the left shoulder.  At the MEB examination the CI reported pain in both shoulders.  The MEB examiner noted that the CI had surgery for both shoulders without relief of symptoms.  There was no physical examination of the left shoulder performed and there was no imaging of the left shoulder during active duty in record.  The NARSUM indicated both shoulders were medically unacceptable and the MEB forwarded both shoulder conditions as unacceptable.  As noted above, the PEB requested additional information from the treating specialist.  The exam of the left shoulder at the addendum evaluation noted a well-healed surgical scar and no evidence of instability.  Left shoulder ROM was full flexion and abduction with good external and internal rotation.  The orthopedic specialist opined that in his professional opinion the left shoulder was medically acceptable IAW AR 40-501.

The permanent profile noted “shoulder pain” and the commander’s statement noted the CI’s “disability” impaired his duty performance, without specific mention of the left shoulder.  As indicated, the left shoulder condition was not judged to fail retention standards by the treating orthopedic specialist.  There was no performance based evidence from the record that the left shoulder, 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 left shoulder condition and so no additional disability ratings are 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 policy for rating the right shoulder condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the right shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended left shoulder condition, the Board unanimously recommends no change from the PEB determination 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 20140104, 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, AR20150015844 (PD201400595)

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						     
						         
CF: 
(  ) DoD PDBR
(  ) DVA