RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01768
BRANCH OF SERVICE:  Army	BOARD DATE:  20150406
SEPARATION DATE:  20071024

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Cannon Crew Member) medically separated for chronic right shoulder pain and instability.  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 L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic right shoulder pain and instability condition, characterized as “chronic right shoulder pain and instability” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions.  The Informal PEB adjudicated “chronic right shoulder pain and instability” as unfitting, rated 10% citing criteria 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:  “Please consider 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 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:

Service IPEB – Dated 20071002	VA -  Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Shoulder Pain and Instability	5099-5003	10%	Right Shoulder Instability w/Recurrent Subluxation (claimed as bilateral …)	5202	30%	STR	
Bilateral Patellofemoral Pain Syndrome	Not Unfitting	Left Knee Condition (claimed as bilateral knee condition)	5299-5261	NSC	STR	
		Right Knee Condition (claimed as bilateral knee condition)	5299-5261	NSC	STR	
Mild Right High Frequency Hearing Loss	Not Unfitting	Tinnitus, Right Ear	6260	0%	STR	
		Right Ear Hearing Loss	6100	NSC	STR	
Bilateral Pes Planus	Not Unfitting	Bilateral Pes Planus	5299-5276	NSC	STR	
Other x 0 (Not in Scope)	Other x 2 		
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20071204 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Right Shoulder Pain and Instability Condition.  The CI was right handed (dominant).  The narrative summary (NARSUM) noted the CI had onset of right shoulder pain and instability in April 2004 after a fall and apparent dislocation of his shoulder that spontaneously reduced (went back into place).  Physical therapy (PT), narcotic pain medications and conservative therapy did not alleviate the CI’s symptoms.  Magnetic resonance imaging arthrogram revealed likely cartilage and ligament tears (probable Bankart labral lesion and possible inferior glenohumeral partial ligament tear).  The CI declined surgery in February 2007 and continued conservative therapy including anti-inflammatory and narcotic medications.  At the MEB exam, the CI reported chronic shoulder pain aggravated with repetitive activities, overhead and heavy lifting, and push-ups.  He noted “frequent episodes of subluxation and sensations of popping and grinding in the joint with movement.  He also experiences occasional pain and paresthesias radiating to the right upper extremity and hand, especially during episodes of subluxation.”  The NARSUM exam approximately 5 months prior to separation stated that the appearance and motion of both shoulders was normal and that the right shoulder had tenderness on palpation without palpable crepitus and that an apprehension (Crank) test was positive.  A U3 profile was recommended with lifting restriction to 25 pounds and no push-ups.

The VA Compensation and Pension exam dated 26 June 2007 (referenced on the MEB DD Form 2808, Report of Medical Examination) was approximately 5 months prior to separation.  The CI noted symptoms of “recurrent subluxations with pain; grinding; weakness with lifting:  unable to lift more than 20 pounds; occasionally has numbness in right hand lasting anywhere from 5-15 minutes; shaking of hand brings feeling back; this occurs when using right arm a lot.”  Symptoms were worse with abduction, external rotation, or lifting.  He noted flares with pain to 5-8/10 and that subluxation happened daily.  Exam documented tenderness and weakness (strength 4/5).  The goniometric range-of-motion (ROM) evaluation noted “significant crepitus” with “subluxes at 70 degrees” of flexion or abduction.  The examiner stated “Limitations per Deluca:  with each repetition subluxation at 70 degrees and pain to include limitations with range of motion.  Subluxation is limiting factor.”  

The MEB right shoulder ROM testing from PT was dated 16 August 2007, approximately 3 months prior to separation and documented pain-limited ROM of 140 degrees flexion (normal 180) and 145 degrees abduction.

Remote VA records noted temporary 100% convalescent ratings for right shoulder surgical repairs in September 2009 (22 months after separation with 45 degrees flexion), and additional surgeries in June 2010 and May 2011.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Shoulder ROM
(Degrees)	NARSUM ~5 Mo Pre-Sep	VA Exam ~5 Mo. Pre-Sep
(20070626) p.43	PT ~3 Mo. Pre-Sep
(20070816) p.37	
Flexion (180 Normal)	“Motion of both shoulders was normal”	70	140/135/150	
Abduction (180)		70	145/140/150	
Comments	Tender; apprehension (Crank) test was positive	Tender; significant crepitus; motor 4/5; subluxes at 70; DeLuca 70 pain and subluxes	Pain-limited	
§4.71a Rating	10%	30%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The Board deliberated the probative values of the various exams which were critical to rating the shoulder.  The NARSUM exam was not goniometric and did not address DeLuca criteria or motor or sensory evaluation.  The PT ROMs were ROM-only and included repetition without addressing shoulder stability or strength.  The prior to separation VA exam was the most comprehensive exam and included assessment of ROM, instability, and DeLuca criteria.  In addition, the physician examiner also addressed the opposite shoulder (assessed as normal) and the exams of the knees, feet and remaining general exam were detailed.  The Board also considered daily variations in pain symptoms and the possibility of improvement in the shoulder over the two months following the VA exam.  The multiple shoulder surgeries remote from separation were adjudged after separation worsening and not indicative of the CI’s disability picture at separation.

The Board considered that the prior to separation VA exam had the highest probative value for rating.  The CI’s primary shoulder symptoms were instability and pain and was best rated under disability code 5202 (Humerus impairment, recurrent dislocation…) as “major” since the CI was right hand dominate.  The Board deliberated between the 30% (with frequent episodes and guarding of all arm movements) and the 20% (with infrequent episodes, and guarding of movement only at shoulder level) rating levels.  The CI’s daily episodes were adjudged as frequent and examiner supported subluxation at 70 degree of both flexion and abduction was considered below the shoulder level which more nearly approximated the disability condition of the 30% rating.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends a disability rating of 30% for the right shoulder condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that bilateral patellofemoral pain syndrome (knees), mild right high frequency hearing loss and bilateral pes planus (feet) were not unfitting.  The Board’s threshold for countering fitness determinations is preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Knees.  The CI had symptoms of painful knees (right more severe) with popping and daily flares worsened since military entry.  History indicated that he had a brace that he stopped wearing as it made his symptoms worse, and that he had a medical discharge for his knees in 2002.  The MEB-referenced VA exam documented a normal gait.  There was no tenderness and X-rays were normal.  There was genu varum of each knee with patellar crepitus, and hypermobile patella of the left knee.  ROM was 0-140 degrees (normal) for each knee with complaint of pain and no DeLuca change in ROM.

Feet.  The history indicated that the bilateral pes planus (flat feet) was of long standing and that the CI had used inserts that were stopped as they did not help.  At the MEB-referenced VA exam the CI’s symptoms were a painless popping sound while walking.

Hearing.  The right ear had a high frequency (6000 Hz, 55 decibel) high pure tone hearing loss.  There was no indication of difficulty understanding speech and evaluation documented normal hearing for VA purposes.

The knees, feet and hearing conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  Although the final profile was L3, the NARSUM had recommended U3 and only the shoulder condition was specified on the profile.  All conditions were reviewed and considered by the Board.  There was no 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.  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 right shoulder condition, the Board unanimously recommends a disability rating of 30%, coded 5202 IAW VASRD §4.71a.  In the matter of the contended bilateral patellofemoral pain syndrome, mild right high frequency hearing loss and bilateral pes planus 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 recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Right Shoulder Pain and Instability	5202	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140422, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150013667 (PD201401768)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 day suspense date:

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

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	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:

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