RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02220
BRANCH OF SERVICE:  Army	BOARD DATE:  20150115
SEPARATION DATE:  20040316

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Multichannel Transmission Systems Operator/Maintainer) medically separated for right shoulder pain.  The right shoulder condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  “Right shoulder pain, instability status post subacromial decompression,” “right shoulder pain, instability status post arthroscopic acromioplasty” and “right shoulder instability status post intrasubstance tear” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded gastroesophogeal reflux disease (GERD) as meeting retention standards.  The Informal PEB adjudicated “right shoulder pain, status post acromioplasty, distal clavicle resection” as unfitting, rated 10%, with likely application of US Army Physical Disability Agency (USAPDA) pain policy.  GERD was adjudicated as 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:

 IPEB – Dated 20031209	VA* - (~9 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Pain…	5099-5003	10%	Impingement…Right Shoulder…	5203	10%	20030617	
GERD	Not Unfitting	Gastrosesophogeal Reflux…	7299-7346	10%	20030617	
Other x 0	Other x 14	
RATING:  10%	COMBINED RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20040421 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Shoulder Condition.  The narrative summary (NARSUM) notes this right hand dominant CI to have a long history of injuries to the right shoulder beginning in 1994 with an acromio-clavicular (AC) separation (where the collar bone attaches to the shoulder).  A chronic painful shoulder syndrome with trapping of the shoulder tendons (shoulder impingement) developed related to the AC injury.  Arthroscopic repair of the AC separation to relieve the impingement was under taken (acromioplasty) in March 2000.  This was unsuccessful in controlling the pain and the CI underwent further corrective surgery in August 2000 (an open resection of the distal clavicle, repair of a partially injured shoulder tendon [supraspinatus tendon] and repair of a chronic rotator cuff injury).  Post-operatively, the symptoms of shoulder pain improved, but recurred 4 months later.  In July 2001, the CI experienced increasing pain in the shoulder during exercise.  A magnetic resonance imaging obtained in August 2001 revealed no evidence of the rotator cuff tear, but evidence of partial tear of the previously-repaired tendon.  On orthopedic evaluations in August and September 2001, ranges-of-motion (ROM) of the shoulder were flexion 165/170 degrees and abduction 100 degrees, both with pain (normal/both 180 degrees).  The examiner reported the shoulder to be moderately “ligamentously loose.”  On an orthopedic evaluation on 28 February 2003, the CI reported his “shoulder coming out and being reduced once a month.”  He reported a recurrence 1-week prior, “reduced by his wife.”  On physical examination flexion was 165 degrees and abduction was 100 degrees, both with pain.  The examiner reported “no marked ligamentous laxity” of the shoulder.  On an orthopedic evaluation on 7 March 2003, ROM of the shoulder was flexion of 170 degrees and abduction of 100 degrees with pain.  Load shift was reported as Grade I (lax movement within, but no movement outside the shoulder joint).  No dislocation was reported during this examination.  

At the VA Compensation and Pension (C&P) exam performed on 17 June 2003, 9 months prior to separation, the CI reported that he currently runs, bikes, swims and uses his free time to swim and due sports.  Findings in the physical examination are summarized in the chart below.  At the MEB/NARSUM evaluation on 17 November 2003, 4 months prior to separation, the CI reported the shoulder pain was increasing and preventing him from doing activities.  The NARSUM performed no physical examination, but referenced the results of the examinations of 28 February 2003, 7 March 2003, and 17 June 2003 as discussed above.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized below.

Right Shoulder ROM
(Degrees)	Ortho ~12 Mo. Pre-Sep	VA C&P ~9 Mo. Pre-Sep	
Flexion (180 Normal)	170	180	
Abduction (180)	100	180 mild pain	
Comments	Mild laxity	Motor good. Equal strength to resistance; tingling in fingers with full ROM..	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and the VA both rated the shoulder condition at 10%, but used different codes.  The PEB used the USAPDA pain policy, citing “moderate and frequent pain.”  The VA used code 5203 (clavicle impairment).  A higher rating of 20% under this code requires nonunion of the clavicle with loose movement.  The Board unanimously agreed that the evidence in record supported a rating of 10% for painful ROM of the shoulder IAW §4.40 and §4.59.  The Board consensus was that the evidence in record supported no compensable rating under ROM codes, IAW § 4.71a.  The Board noted the episodes of frequent shoulder “dislocations” reported by the CI and considered a rating under code 5202 (humerus impairment).  Under this code the lowest rating of 20% requires infrequent episodes of dislocation with guarding of movement only at the shoulder level.  A higher rating for the dominant shoulder of 30% requires frequent episodes of dislocation and guarding of all arm movements.  

The Board agreed that the record in evidence supported the CI to have some laxity of the right shoulder but that it did not rise to the level of a 20% rating under this code given:  1) no findings of dislocation of the shoulder were documented on proximate ROM examinations 2) the activity status reported by the CI on the C&P evaluation, most proximate to separation, suggested little functional limitation, and 3) the record in evidence contained no reports of emergent clinic or emergency department visits which would be required for relocation of a significantly dislocated shoulder condition.  The Board agreed that the record supported no higher rating than 10% under code 5203 (clavicle impairment) as no non-union of the clavicle surgical site was documented.  

The Board considered a rating under code 7804 (painful surgical scars), but was unable to do so, as surgical scars were not described as painful or unstable.  The Board noted the reports of the CI of numbness and tingling of his right hand with extension of the arm above the shoulder and considered a rating for neuropathy IAW §4.123.  The Board consensus was that no unfitting ratable peripheral neuropathy was present as the condition was positional, intermittent and of no functional significance as motor weakness was not demonstrated.  The Board was unable to find any other appropriate codes for consideration or any pathway to a rating higher than 10% for the shoulder condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB adjudication for the right shoulder condition.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the GERD condition was 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 CI had a long history of GERD which was controlled on appropriate gastrointestinal medication.  This condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  It was reviewed and considered by the Board.  There was no performance based evidence from the record that this condition 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 adjudication for the contended GERD condition 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 for rating the shoulder condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  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 contended GERD 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 20140516, 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, AR20150010591 (PD201402220)

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