RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-01695
BRANCH OF SERVICE:  Army	BOARD DATE:  20140715
SEPARATION DATE:  20090322

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (11B/Infantry) medically separated for limited motion of his left arm.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The left arm condition, characterized as “shoulder pain/impingement” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded the following conditions as not falling below retention standards:  mood disorder, insomnia, alcohol dependence and closed head injury without loss of consciousness.  The PEB adjudicated “arm, limitation of motion” as unfitting, rated 20% citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting, with the exception of the alcohol dependence, which the PEB determined “not compensable, although it may be administratively unfitting.”  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please review all conditions.”

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 arm condition is addressed below.  In addition, based on the CI’s contention, the Board will consider the mood disorder, insomnia and closed head injury without loss of consciousness conditions.  The alcohol dependence condition will be considered by the PDBR only so far as its connection to a compensable mental health condition, if applicable.  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 20081215	VA - (~21-23 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Arm, Limitation of Motion	5201	20%	Severe Strain, Left Shoulder	5201	20%	20101228	
			Scars, Postoperative Left Shoulder	7804	20%	20101228	
Mood Disorder	Not Unfitting	Posttraumatic Stress Disorder (PTSD)	9411	50%	20110105	
Insomnia	Not Unfitting					
Alcohol Dependence	Not Compensable					
Closed Head Injury; no LOC	Not Unfitting	Traumatic Brain Injury	8045	40%	20101217	
Other x 0 (Not in Scope)	Other x 0	20101217	
Combined:  20%	Combined:  80%	
Derived from VA Rating Decision (VARD) dated 20110830x (most proximate to date of separation [DOS]).   
VARD 20120904 increased DC 9411 to 100% and added Migraine headache from TBI 8100 at 50%, both effective 20120612.  VARD 20130207 changed characterization of DC 9411 from PTSD to PTSD with Alcohol Abuse, with the rating remaining at 100% effective 20120802.  

ANALYSIS SUMMARY:

Left Arm Condition.  The record indicated that the CI was right-handed.  The narrative summary, performed 5 months prior to separation, noted initial left shoulder injury in March 2006 (Type 3 shoulder separation) with re-injury in a motor vehicle accident in January 2007.  Magnetic resonance imaging of the left shoulder in March 2007 indicated evidence of a previous AC separation of left shoulder.  Conservative treatment failed and he underwent surgical repair on 5 February 2008 (open distal clavicle excision with arthroscopic acromioplasty/subacromial decompression).  Despite post-surgical physical therapy his duty-limiting shoulder pain persisted and on 8 August 2008 he was issued a U3 profile and referred for MEB.  The MEB physical exam noted left shoulder range-of-motion (ROM) of forward flexion 70 degrees (normal 180 degrees); abduction 85 degrees (normal 180 degrees) and decreased internal and external rotation.  The examiner stated “in applying DeLuca's evaluation in terms of further limitation of range-of-motion, in terms of pain, fatigue, weakness, lack of endurance, instability, and coordination, that due to pain he would lose approximately 10% of ability in his shoulder measurements” (63 degrees=70 degrees-10; 76 degrees=85 degrees-10%).

At the VA Compensation and Pension (C&P) exam performed approximately 21 months after separation, the CI reported instability, weakness, stiffness and pain with daily flare ups.  ROMs were flexion of 90 degrees and abduction 90 degrees, which decreased to flexion of 80 degrees degrees and abduction of 80 degrees after repetitive use due to pain, fatigue, weakness and flare ups.  The three shoulder scars were tender with mild keloid appearance, bright pink color and no breakdown.  X-ray showed “widening of the AC joint with approximately 1.6 cm distraction of the distal left clavicle from the acromion which could represent ligamentous injury and AC joint separation” and was otherwise normal.  The diagnosis was severe strain of left shoulder with abnormality to the AC joint.  VA C&P for traumatic brain injury (TBI) performed in the same timeframe, documented slight motor and sensory deficits of the left upper extremity.

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the left shoulder at 20% using disability code 5201 (arm, limitation of motion), specifying limitation of motion “at shoulder level.”  Given that the CI was right-handed, rating of the shoulder is using the “minor” (or non-dominant) criteria.  Even if the shoulder flexion of 63 degrees (after DeLuca, and the most limited from all exams) was conceded to be closer to the rating criteria of limitation of motion “midway between side and shoulder level" (which would numerically be closer to 45 degrees), rating would remain at 20% for the non-dominant left shoulder.  Alternate coding using 5203 (clavicle impairment), would not provide for any higher rating.  The shoulder did not approach the 5201 criteria of limitation to “25⁰ from side” to warrant a higher 30% rating.  Any contribution from the shoulder scars was considered in the shoulder rating as the scars were not separately unfitting.  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.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the mood disorder, insomnia, alcohol dependence and closed head injury conditions were not unfitting.  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.  Alcohol dependence is a condition not constituting a physical disability IAW DoDI 1332.38, Enclosure 5; and is not a compensable condition.  The record documented that the MEB was initiated in August 2008 with profiling for the unfitting shoulder condition with the behavioral health evaluation on 24 September 2008 for a fitness for duty evaluation following complaints about irritability, poor relationships and stress.  The evaluation indicated prior treatment for alcohol dependence (inpatient detoxification), adjustment disorder and occupational problems, including earlier in the month “threatening aggression when told his MEB encounter” was in October 2008.  The CI was not on medications and had attended one session of individual therapy.  Mental status exam (MSE) noted mood was dysphoric/calm and affect was flat/congruent.  Thought processes and content were not impaired and there was no suicidal or homicidal ideation.  Psychological testing scores were worse than those from earlier and the examiner commented “seems over reported compared to presentation.”  TBI assessment (reported head injury with loss of consciousness) was reported as “no evidence of cognitive problems.”  The diagnoses were anxiety disorder, not otherwise specified (NOS) that did not fall below retention standards and alcohol dependence (alcoholism).

The commander’s statement dated 28 September noted duty limitations attributable to physical restrictions and indicated the CI was on-time to report to work to perform to standards and was extremely interactive with peers.  All of the responses in section III (industrial capacity) indicated no difficulties with memory, attention, focus, civility, orderly routine without supervision, prioritization and responding to changes in routine.

VA C&P exams in December 2010 (TBI) [approximately 21 months post separation] and January 2011 (posttraumatic stress disorder [PTSD]) indicated similar history as the service treatment record and indicated that the CI had not worked since separation and was recently homeless.  Diagnoses were PTSD, depressive disorder NOS, TBI mild (per records) and alcohol abuse (per records).  MSE noted depressed and anxious mood with a restricted affect.  Judgment was “adequate, but may be impaired at times,” short term memory and concentration were impaired.  Global Assessment of Functioning was 60 (moderate range) and the examiner’s assessment was “The (CI’s) symptoms currently impair his social and occupational functioning with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.”  TBI evaluation indicated symptoms of headaches with dizziness and frustration, balance or coordination problems with walking and cognitive symptoms.  There were objective findings of mild impairment of attention, concentration or executive functions.  The examiner indicated that subjective symptoms moderately interfered with work, instrumental activities of daily living, family or other close relationships.  The VA rated these exams at 50% for PTSD and 40% for TBI.  More remote VA treatment notes and exams indicated increased PTSD symptoms that were rated at 100% effective in August 2012.

The mood disorder, insomnia and closed head injury (TBI) were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  There was adequate performance prior to entry into the disability system.  The Board also adjudged that the record of evidence over 20 months remote from separation indicated post-separation worsening and progression of the mental health conditions (to PTSD) and was not indicative of the CI’s condition at the time of separation.  There was insufficient performance based evidence from the record that any 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 any of the contended conditions 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.  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 left shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended mood disorder, insomnia and closed head injury conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended alcohol dependence, condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 20140421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

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, AR20150006238 (PD201401695)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA