RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX                                                                            CASE:  PD-2014-02665
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050629

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E-5 (Plumber) medically separated for a right shoulder condition.  The condition could not be adequately rehabilitated to satisfy the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The right shoulder condition, characterized as “right shoulder chronic pain status post labral repair and biceps tenodosis,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  One other condition (lumbago) was submitted by the MEB.  The Informal PEB adjudicated “chronic pain right shoulder,” as unfitting, rated 0%, with likely application of AR 635-40.  The back condition was determined to be not unfitting.  The CI wrote a letter of disagreement to the US Army Physical Disability Agency (USAPDA) which affirmed the PEB findings and rating, and he was medically separated.  

CI CONTENTION:  He was not evaluated for his sleep apnea, tinnitus and respiratory 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 the 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 20050609	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Pain	5099-5003	0%	Osteoarthritis Right Shoulder	5201-5010	10%	20060509	
Lumbago	Not Unfitting	DDD, Lumbar Spine	5243	10%		
Other Conditions x 0 (Not In Scope)	Other x 4 	
RATING:  0%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20060531 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Right Shoulder Pain Condition.  Treatment records evidence that the CI sustained a right shoulder injury in 2004.  He was treated with activity modification, physical therapy, and medications.  A magnetic resonance imaging study performed 9 September 2004 demonstrated a rotator cuff tear involving a portion of the supraspinatus and subscapularis tendons.  On 17 November 2004 the CI underwent arthroscopic repair and debridement.  Postoperatively the CI continued to report 2/10 pain at rest and 5/10 pain with activity.  On 23 February 2005 the CI underwent a second right shoulder surgery.  At an orthopedic evaluation dated 9 May 2005 the CI reported that his shoulder was still stiff, but better than prior to the surgery.  At the narrative summary (NARSUM) examination, performed 1 month before separation, the CI reported pain with overhead activities and lifting greater than 20 pounds.  The physical examination demonstrated right shoulder tenderness to palpation, normal right upper extremity muscle strength, and normal neurovascular findings.  

At the VA Compensation and Pension examination, performed 3 months after separation, the CI reported daily shoulder pain, pain with lifting greater than 20 pounds, and pain with repetitive motion.  On physical examination of the right shoulder there was no overt tenderness to palpation, but pain at the end range-of motion on the right.  The goniometric range-of-motion (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)	MEB ~1 Mo. Pre-Sep
	VA C&P ~3 Mo. Post-Sep
	
Flexion (180 Normal)	170	180	
Abduction (180)	170	180	
Comments	-	-	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition at 0%, coded 5099-5003 (analogous to degenerative arthritis).  VA rated the condition at 10%, coded 5201-5010 (arm limitation of motion- arthritis due to trauma).  The Board considered whether the evidence supported a higher than 0% rating.  Multiple treatment notes and the VA examination demonstrated painful motion for a minimum rating IAW VASRD §4.59 (painful motion) and §4.40 (functional loss).  There was no evidence of compensable shoulder limitation of motion or instability for a higher rating.   After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right shoulder pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that chronic lower back pain was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The chronic lower back pain was profiled and implicated in the commander’s statement, but not judged to fail retention standards.   All were reviewed and considered by the Board.  There was minimal performance based evidence from the record that chronic lower back pain 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 back condition and so no additional disability rating is 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 right shoulder pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended chronic low back pain condition, the Board unanimously recommends no change from the PEB determination 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:  

CONDITION	VASRD CODE	RATING	
Right Shoulder Pain	5099-5003	10%	
RATING	10%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140504, w/atchs
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 XXXXXXXXXX, AR20160003708 (PD201402665)

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, accept the Board’s recommendation to modify the individual’s disability rating to 10% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA