RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01249
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070912

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Combat Engineer, medically separated for “Post Traumatic Stress Disorder (PTSD)” rated at 10% and “bilateral shoulder pain and instability” determined as “existed prior to service” (EPTS).

CI CONTENTION: The applicant contends his shoulder condition rating.  The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 Mental Health Review Terms of Reference 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 MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:  

SERVICE PEB - 20070816	VARD - 20080208	
Condition	Code	Rating	Condition	Code	Rating	Exam	
PTSD	9411	10%	PTSD	9411	30	20071103	
Bilateral Shoulder Instability	5099-5003	EPTS	Status Post Capsular Shift, Left Shoulder	5299-5203	10%	20071103	
			Status Post Capsular Shift, Right Shoulder	5299-5203	10%	20071103	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS: 50%	

ANALYSIS SUMMARY:  

PTSD.  Service treatment records (STR) indicate the CI was deployed to Iraq from August 2004 to September 2005.  A Post-Deployment Health Reassessment (PDHRA), in August 2006, noted the CI endorsed the presence of nightmares, hypervigilance, avoidance, numbness and depression for more than half the days in the past month.  There was confirmation of his combat exposures.  He received an S3 profile for PTSD and major depressive disorder (MDD).  The commander’s statement noted the profile “prevented him from fulfilling the simplest roles of a combat engineer and left him only the ability to perform administrative duties in a garrison environment.”

The psychiatric narrative summary (NARSUM), in July 2007, noted that after his return, he began to have thoughts he did “not want to be here anymore” but had made no attempts to end his life.  Occasionally he hit himself in the head when frustrated or irritated with himself.  He stated this is why his wife left him.  Since his return he has had a low mood, decreased appetite with weight loss, problems with concentration and a desire to isolate himself socially.  He continued to endorse symptoms of PTSD.  He could not participate in leisure activities, was separated from his wife and had no history of hospitalizations.  He took a medication to treat irritability and participated in therapy.  A mental status examination (MSE) noted he fidgeted, had an irritable mood and constricted affect, and felt like he did not want to live but had no plans to hurt himself.  He was not performing the duties of his Military Occupational Specialty (MOS) due to his physical injuries.  The symptoms of depression and PTSD prevented him from performing to his full potential.  A diagnosis of MDD was rendered with a Global Assessment of Functioning (GAF) score of 60 (moderate bordering on mild symptoms, impairment.)  The examiner noted the CI was not performing the duties of his MOS due to his physical injuries to perform the bare minimum duties of his MOS.  His symptoms of PTSD and depression would prevent him from performing duties to his full potential.

The VA Compensation & Pension examination for PTSD on 3 November 2007, noted the CI was seeking employment. He had divorced in October 2007, but had a loving relationship with his son.  He reported more irritability and frequent suicidal ideation without plan or intent.  He was focused on orderliness.  There was no history of panic attacks, but he reported daily depression and anxiety.  He slept 1-2 hours per night, was fatigued and had problems with concentration.  He enjoyed hunting and had infrequent contact with friends.  He stated he was in therapy from February 2007 until August 2007.  MSE was normal.  A diagnosis of PTSD was rendered with a GAF score of 70 (mild impairment, symptoms). 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the PTSD condition 10%, coded 9411 (PTSD), while the VA rated the condition 30%, using the same code citing depression, anxiety and sleep impairment.  The Board first considered if application of VASRD §4.129 with a constructional 6-month period on the Temporary Disability Retirement List (TDRL) was indicated in this case.  The Board agreed that the stipulations of §4.129 are met in this case due to combat exposures; and, thus recommend a minimum 50% PTSD rating for a retroactive 6-month period.  The Board then determined the most appropriate fit with VASRD §4.130 criteria at 6 months for its permanent rating recommendation.  The most proximate source of comprehensive evidence on which to base the permanent rating recommendation in this case is the VA Compensation and Pension (C&P) examination performed 2 months after separation.  The NARSUM noted the CI endorsed symptoms of PTSD but was seeking employment and had not received further treatment (neither therapy nor medication) since separation.  He reported daily anxiety, depression and impaired sleep, which were 30% threshold symptoms.  

Board members therefore concluded that the 30% rating most accurately depicted the condition at the time of removal from TDRL.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for 6 months of constructive TDRL and a 30% permanent rating thereafter for the PTSD condition.

Bilateral Shoulder Instability Condition.  The PEB combined the left and right shoulder instability conditions as a single unfitting condition coded analogously to 5003 (Arthritis, degenerative) and determined it existed prior to service (EPTS.)  The approach by the PEB reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case is therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the bilateral shoulders conditions is presented below with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

The bilateral shoulder pain and instability started in February 2005 when the CI was repairing a tracked vehicle.  The shoulder pain progressed slowly over a few weeks and he reported that it felt like both shoulders were slipping out of the socket with the left shoulder worse than the right.  According to service treatment records and the MEB narrative summary, the CI underwent left shoulder arthroscopic surgery on 22 March 2006 for gross posterior instability and right shoulder arthroscopic surgery on 29 March 2007 for gross instability.  Following recovery from surgery, he experienced persistent duty limiting symptoms such as pain exacerbation with any kind of lifting or overhead activities and was referred for MEB.  

The DD Form 2807, dated 14 May 2007 approximately 4 months prior to separation, noted the CI had instability in the right and left shoulders after an Iraqi mortar attack in January 2005.  At the MEB examination the examiner noted bilateral shoulder tenderness posterior and anterior, painful range of motion (ROM), positive left shoulder Neer test (subacromial impingement) and a positive apprehension test (dislocation).  According to the commander’s statement dated 6 June 2007, the CI had functional impairments of an inability to lift more than 15 pounds, bend forward or wear field gear and was unable to perform his MOS duties as a combat engineer.  

At the Medical Evaluation Board (MEB) NARSUM examination dated 19 July 2007, approximately 2 months prior to separation, the CI reported constant bilateral shoulder pain and instability that was exacerbated by any type of lifting or overhead activities.  The physical examination findings recorded left shoulder flexion of 140 degrees (180 normal) and abduction of 117 degrees (180 normal) and right shoulder flexion of 140 degrees and abduction of 132 degrees.  The examiner noted that “hyperlaxity shoulder surgery usually fails for a period of time after surgery as the patient re-stretches the capsule.”  The examiner noted the instability was “multidirectional and atraumatic, most likely being congenital.”  

The commander’s statement dated 24 July 2007 noted that the CI’s MOS was a vehicle/operator and he was fully capable to accomplish this mission.  He noted that the CI’s functional limitations were an inability to perform the 2 mile-run, Army Physical Fitness Test (APFT) sit-ups and APFT push-ups.  Duty limitations were recommended by the Army profile for bilateral shoulder pain dated 25 July 2007 and included parade rest to be done with hands at side and no carrying or firing weapons.  At the VA (C&P) examination in November 2007 performed approximately 2 months after separation, the CI reported bilateral shoulder pain, giving way, instability, and weakness.  The physical examination findings recorded left shoulder flexion of 170 degrees (180 normal) and abduction of 110 degrees (180 normal) and right shoulder flexion of 170 degrees and abduction of 110 degrees.

The Board directed attention to its rating recommendation based on the evidence.  The PEB determined the condition was EPTS, under an analogous 5003 code (arthritis, degenerative), citing pain.  The PEB noted on the DA Form 199 that the condition was “EPTS and has followed a course of normal progression without service aggravation according to accepted medical principles.  There is no evidence of shoulder trauma.”  The VA assigned a 10% rating separately to each shoulder using an analogous 5203 code (Clavicle or scapula, impairment of) based on the VA C&P examination approximately 2 months after separation, citing a mal-union or nonunion of the clavicle or scapula.  

The Board must first evaluate the PEB’s EPTS determination.  The Board’s authority for recommending a change in the EPTS determination is not specified in DoDI 6040.44, but is considered adjunct to its DoD-specified obligation to review fitness adjudications.  The VASRD addresses this issue in §4.22 disabilities aggravated by active service.  In cases involving aggravation by active service, the rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service whether the particular condition was noted at the time of entrance into the active service, or it is determined upon the evidence of record to have existed at that time.  The CI’s bilateral shoulder instability is “most likely” described as congenital.  However, it cannot be assumed that the CI’s bilateral shoulder instability is a normal progression of a congenital condition since the CI was engaged in overhead activities.  Repetitive overhead motion can cause joint laxity, especially in a weakened shoulder.  It is noteworthy there are several references to trauma affecting the soldiers after a mortar blast.  The shoulder instability did not occur until after he had put together a track vehicle.  The level of disability at the time of entrance into active service is determined to be none and therefore, no deduction will be made from the final disability rating.  

The Board first considered if left and right shoulder instability conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Both shoulders had documented instability, painful motion and pain limited motion.  The MEB NARSUM examiner clearly documented that there was pain exacerbation with any kind of lifting or overhead activities.  The VA examiner documented that the CI continued to report bilateral shoulder pain, giving way, instability, and weakness.  At no time was there evidence that either the right or left shoulder had improved and was pain-free.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% coded 5099-5003 IAW VASRD §4.71a for the left shoulder instability condition and 10% coded 5099-5003 IAW VASRD §4.71a for the right shoulder instability condition.  

BOARD FINDINGS:  

In the matter of the PTSD condition, the Board unanimously recommends a disability rating of 50%, coded 9411 IAW VASRD §4.129 for 6 months from the time of discharge consistent with a constructive period of TDRL and then a permanent separation rating of 30% IAW VASRD §4.130.  In the matter of the “bilateral shoulder instability condition,” the Board unanimously recommends that each shoulder be separately adjudicated as follows:  an unfitting left shoulder instability condition coded 5099-5003 and rated 10%, and an unfitting right shoulder instability condition, coded 5099-5003 and rated 10%, both IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	         RATING	
		TDRL	PERMANENT	
PTSD	9411	50%	30%	
Left Shoulder Instability	5099-5003	10%	10%	
Right Shoulder Instability	5099-5003	10%	10%	
COMBINED	60%	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140105, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXX AR20160006809 (PD201401249)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to  constructively place the individual on the Temporary Disability Retired List (TDRL) at 
60% disability for six months effective the date of the individual’s original medical separation for disability with severance pay and then following this six month period re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 50%.

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of temporary disability effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the day following the six month TDRL period.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, provide 60% retired pay for the constructive temporary disability retired six month period effective the date of the individual’s original medical separation and then payment of permanent disability retired pay at 50% effective the day following the constructive six month TDRL period.  

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

CF: 
(  ) DoD PDBR
(  ) DVA