RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02020
BRANCH OF SERVICE:  Army	BOARD DATE:  20140918
SEPARATION DATE:  20050829

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (11B/Infantry) medically separated for a right shoulder condition.  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/L2/E2 profile and referred for a Medical Evaluation Board (MEB).  The right shoulder condition, characterized as “right periscapular muscle and tendon tears with scar tissue and significant painful crepitus,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded neck, back and knee pain conditions to the PEB.  The Informal PEB adjudicated “chronic right posterior shoulder pain” as unfitting, rated at 0%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy. The neck, back and knee pain conditions were adjudicated by the PEB as not unfitting and therefore not ratable.  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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting right shoulder condition is addressed below; as well as the contended neck, back and knee pain conditions which are within the DoDI 6040.44 defined purview of the Board.  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 20050811	Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder	5099-5003	0%	Right Periscapular Muscle And Tendon… Chronic Right Posterior Shoulder Pain	5099-5003	0%	STR	
Neck Pain	Not Unfitting	Residuals, Neck injury to Include Arthritis	5242	10%**	20120529	
Back Pain	Not Unfitting	DDD	5242	10%*	20120529	
Knee pain	Not Unfitting	Chondrocalcinosis, Left Knee	5260-5015	10%*	20120529	
Other x 0 (Not in Scope)	Other x 0 (Not in Scope)	20120529	
Combined:  0%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20060118 (most proximate to date of separation).   Applicant did not show for exams until 2012 (After separation the * conditions were not service connected (NSC) awaiting Deferred Decision) per * VARD 20120621 and  **VARD 20120806.

ANALYSIS SUMMARY:

Right Shoulder Condition.  The narrative summary (NARSUM) recorded the CI while deployed to Afghanistan in November 2004, he fell 20 feet off of a building injuring his neck, right shoulder, back and left knee.  He later reported tingling in the right arm.  Primary care clinic entry dated 4 April 2005 recorded right shoulder full range-of-motion (ROM) without impingement signs.  Right shoulder crepitus on rotation was recorded.  The CI was treated conservatively with medication for his continued report of back, neck and shoulder pain, diagnosed as myofascial strain and right shoulder pain.  He was medically evacuated in April 2005 due to his chronic pain issues.  Orthopedic consult dated 27 April 2005 noted the CI had spent three days in a Bagram hospital, had radiographs completed and was sent back to duty but could not continue due to chronic upper and lower back pain.  He was medically evacuated for this reason.  The physician noted his radiographs images were not available and that the CI was very angry.  

At the NARSUM dated 21 June 2005, the physician noted the CI had taken narcotic medications for “a long time,” had seen a chiropractor which helped, and was also prescribed an antidepressant and sleep medication.  Physical examination noted painful crepitus with movement of the right scapula.  Right shoulder joint motion was recorded as normal without pain unless the scapula moved.  The physician noted there was moderate tenderness to palpation in the periscapular muscle, normal sensory and normal strength.  The examiner noted magnetic resonance imaging and X-rays of the shoulder were normal.  Pain was recorded as slight and frequent under the American Medical Association guidelines.  The physician diagnosed right periscapular muscle and tendon tears resulting in scar tissue and significant painful crepitus.  The MEB history and physical dated 6 July 2005 recorded painful motion of right scapula.  On 29 July 2005 the NARSUM physician noted the absence of clinical findings on the examination of the neck and back and recorded the two conditions were not medically disqualifying.  The physician noted the shoulder was the only disqualifying condition. The CI was non-attendant to the VA Compensation and Pension examination.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB chose to rate the condition at 0%, analogous to 5003 (degenerative arthritis) for slight and occasional pain.  The VA used the same code to rate the condition at 0% citing the lack of clinical findings to support a compensable evaluation (the CI was a no show).  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  Applicable diagnostic codes include: 5003 (degenerative arthritis) 5201 (limitation of arm motion); 5202, (humerus, other impairment) and 5203 (dislocation of clavicle or scapula).  A compensable rating under the 5003 code requires objective evidence of painful or limited motion of a major joint or group of minor joints, or multiple joint involvements.  The Board noted the normal radiographic findings and normal ROM and muscle strength.  The Board undertook a careful review of the clinical documentation and all Board members agreed the record clearly demonstrated the presence of pain on motion.  The Board considered rating under 5201, 5202 and 5203 codes; however, there was no recorded reduction in ROM, no clinical or radiologic evidence supporting ankylosis, loss of the humeral head, nonunion, malunion, fibrous union, or deformity of the humerus.  Additionally, no clinical or radiologic evidence that suggested dislocation of, nonunion of, or malunion of the clavicle or scapula at the time of separation was noted.  Hence, no alternative shoulder code is supported in justification of a rating higher than 10% under these codes.  There was no evidence of ratable peripheral nerve impairment which would provide for additional or higher rating.  The Board members agreed VASRD §4.59, painful motion was applicable in this case and therefore, recommended a disability rating of 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% under 5003 code for the shoulder pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the neck, back, and knee 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.  The Board noted the conditions of neck and back pain were profiled and implicated in the commander’s statement; however, were not judged to fail retention standards.  The Board undertook a careful review of the record in evidence and noted the preponderance of evidence did not support an unfitting determination for the neck or back.  There was no recorded evidence of gait disturbance, reduction in ROM of the neck or back, or evidence of incapacitation, and no radiographic evidence of any neck or back pathology.  The knee condition was never profiled or implicated in the commander’s statement.  All of the above conditions were reviewed by the action officer 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 above 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 DoDI 1332.39 for rating the right shoulder condition was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board.  In the matter of the chronic right posterior shoulder pain condition, the Board unanimously recommends a disability rating of 10%, coded 5009-5003 IAW VASRD §4.59.  In the matter of the contended neck, back and knee 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Right Posterior Shoulder Pain	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140507, 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, AR20150006500 (PD201402020)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA