RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01752
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090527

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Human Resources Specialist) medically separated for right shoulder and right hip conditions which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent U3, L3 profile and referred for a Medical Evaluation Board (MEB).  “Right shoulder impingement labral tear” and “right hip pain, femoral acetabular impingement syndrome,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five other conditions of dyslipidemia, tobacco use, myopia, sleep apnea, and obesity for PEB adjudication.  An initial Informal PEB (IPEB) found the CI fit for duty. Approximately 14 months later, a subsequent IPEB adjudicated “right (dominant) shoulder impingement” and “right hip femoral acetabular impingement” as unfitting conditions, rated 10% and 10%, respectively, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The dyslipidemia, myopia, and sleep apnea conditions were determined to be not unfitting.  The tobacco use and obesity conditions were adjudicated as not ratable under DoDI 1332.38 (conditions not constituting a physical disability) and are conditions not subject to rating under VASRD guidance.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requests the Board consider all conditions.  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 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 20090417	VA* - ~2 weeks Post-Separation  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Impingement	5099-5003	10%	Right Shoulder Rotator Cuff Tear	5201	10%	 20090616	
Right Hip Impingement	5099-5003	10%	Right Hip Impingement	5252	10%		
Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%		
Dyslipidemia	Not Unfitting	No VA placement		
Myopia	Not Unfitting	No VA placement		
   Other MEB/PEB Conditions x 2 (Not Ratable)	Other x 1	
COMBINED RATING:  20%	COMBINED RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20090926 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:    

Right Shoulder Condition.  The CI initially injured his right shoulder in 1996 prior to enlistment.  The injury was treated with surgery and the CI fully recovered.  The service treatment record (STR) corroborated the history detailed in the narrative summary (NARSUM) of onset of right (dominant) shoulder pain with lifting in 2000.  Magnetic resonance imaging (MRI) diagnosed a labral tear and the CI underwent surgical repair on 3 March 2000 (open Bankart procedure).  A subsequent arthroscopic debridement was performed 15 October 2001 without success.  There were STR entries confirming grossly normal range-of-motion (ROM) over the period following the last surgery, and two physical therapy (PT) ROM measurements of both forward flexion and abduction to 180 degrees (normal for each).  An MRI arthrogram from January 2008 was normal except for post-operative changes (ligaments, rotator cuff intact).  There were no STR entries indicating significant ROM limitation, instability, ratable functional deficits, or incapacitation.

The NARSUM was conducted 2 months pre-separation on 11 March 2009 and documented baseline pain rated 2/10 with exacerbations to 6/10 by “activity with repetitive motion.”  The NARSUM physical examination recorded painful motion and normal strength without comment regarding tenderness, instability, or other specific joint findings.  The NARSUM cited PT ROM measurements from 5 days earlier of forward flexion to 165 and abduction to 140 degrees.

A VA Compensation and Pension (C&P) examination was conducted 3 weeks post-separation on 16 June 2009 and did not elaborate pain acuity, but noted subjective weakness and no subjective instability.  The examiner did not specify functional limitations but noted “moderate” interference with chores and prohibition of sports and “mild” or no interference with other types of activities.  The VA physical examination recorded crepitus, tenderness, and normal motor and sensory findings.  The VA-measured ROM was both forward flexion and abduction to 120 degrees, specifying painful motion.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was consistent with VASRD §4.71a criteria for the Service ROM evidence (conceding painful motion) and other ratable findings.  The VA’s 10% rating under 5201 (limitation of motion) invoked painful motion.  There was no ankylosis or fracture (nonunion/malunion) of the shoulder girdle that would support a higher rating under any other joint code and there was no history of dislocations or findings of instability that would support a higher rating (even analogously) under code 5202 (humerus, other impairment).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the right shoulder condition. 

Right Hip Condition.  The record indicates that the CI first injured the hip as a result of a hard aircraft landing in August 2004 during a deployment to Iraq.  The resulting pain was managed successfully in-theater, but recurred after redeployment.  An MRI diagnosed a labral tear and arthroscopic debridement was undertaken on 20 March 2007.  With inadequate results, an open chondroplasty was performed 9 months pre-separation on 2 October 2008, but was unsuccessful at restoring MOS functionality.  Post-operative X-rays (fluoroscopy) demonstrated post-operative changes and normal alignment.  Post-operative STR entries indicated continuing gait disturbance and requirement for a cane, although some PT entries documented a suspected contribution from foot, knee and sciatic issues.    Measured ROM approximately 3 months pre-separation by orthopedics in February 2009 recorded flexion to 100 degrees (normal 125, minimum compensable 45), external rotation to 20 degrees (normal 45, minimum compensable 15), and abduction to 45 degrees (normal, minimum compensable 10).  There are 3 PT entries in close proximity to the formal measurements for the MEB, including additional measurements a month later, which document grossly normal ROM.  There was no STR documentation of incapacitation after surgical recovery.

The NARSUM documented baseline pain rated 4/10 with exacerbations to 8-9/10 “depending on repetitive motion.”  The physical examination recorded an antalgic gait and use of a cane, “good” strength with normal neurologic findings, and no atrophy.  The cited PT ROM measurements were flexion to 100 degrees, extension to 0 degrees (normal 20, minimum compensable 5), and abduction to 20 degrees.

The post-separation VA C&P examiner did not elaborate pain acuity, but noted subjective weakness and the absence of subjective locking or instability.  General activity limitations were similar to those ascribed to the shoulder and incidentally, somewhat less than those ascribed to a bilateral plantar fasciitis foot condition also rated by the VA.  The VA physical examination recorded an antalgic gait with use of a cane, joint tenderness, and normal motor and sensory findings.  The VA ROM measurements were flexion to 90 degrees, extension to 20 degrees, external rotation to 40 degrees, and abduction to 30 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was consistent with VASRD §4.71a criteria for the Service ROM evidence and other ratable findings and it was noted that the MEB PT measurement of 0 degrees extension would support a 10% rating under code 5251.  The VA’s 10% rating under 5252 (limitation of flexion) invoked painful motion.  There is no ROM limitation, ankylosis, flail joint, or instability that would achieve a rating higher than 10% under any alternate code other than consideration of an analogous rating under 5299-5255 (femur, impairment of). This code offers ratings for contiguous hip disability: 20% for “moderate” and 30% for “marked.”  Members agreed however, that the analogous application of this fracture code which rates for non-union or malunion, with no fracture or such complications present, was not sufficiently justified by VASRD §4.20 (analogous ratings). It was also noted that the functional limitations overlapped with other conditions not subject to rating and it is not certain that the CI was fully recovered from surgery at the time of separation.  After due deliberation, considering all evidence and with deference to reasonable doubt, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the right hip condition.

Contended Conditions (Sleep Apnea, Myopia, and Dyslipidemia).  The CI initially presented for snoring and observed nocturnal apnea 20 months pre-separation in September 2007.  He was diagnosed with obstructive sleep apnea by sleep study and titrated on a continuous positive airway pressure device.  A pulmonary entry 1 year pre-separation from May 2008, documented good control and no daytime somnolence.  It is unclear from the STR when the CI was diagnosed with myopia, but an optometry entry 7 weeks pre-separation from April 2009, documented corrected vision to 20/20.  The 3 contended conditions were listed in the medical history of the NARSUM, but not elaborated, and all were forwarded as meeting retention standards.  None of them were profiled.  The commander’s performance statement referenced only the MOS limitations from the shoulder and hip conditions. 

The Board directed attention to its recommendations based on the above evidence and its main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that they 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.  All members agreed that there was no performance based evidence suggesting that any of the above conditions significantly interfered with 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 any of these conditions and thus none can be recommended for additional disability rating. 

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 right shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right hip condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended sleep apnea, dyslipidemia and myopia conditions, the Board unanimously recommends no change from the PEB determinations 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 20140420, with attachments
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 XXXXXXXXXXXXXXXXXX, AR20160003385 (PD201401752)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA