RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03002
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090324

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E2, Avenger System Repairer, medically separated for “right (dominant) shoulder pain following two surgical procedures (including a Bankart) following multiple dislocations,” with a disability rating of 10%.  

CI CONTENTION:  “Please consider all conditions.”  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20081218	VARD - 20120906	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right (Dominant) Shoulder Pain…	5099-5003	10%	Right Shoulder Condition 	5201	NSC	STR	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea with CPAP Machine	6847	NSC	STR	
Migraines	Not Unfitting	Migraines	8100	NSC	STR	
Borderline Personality	Not Ratable	Any Mental Condition to Include Borderline Personality Disorder	9499-9435	NSC	STR	
Vertigo	Not Unfitting	Vertigo	6205	NSC	20120808	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NSC – PENSION ONLY	

ANALYSIS SUMMARY:  

Right Shoulder.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right hand dominant CI injured her right shoulder in 2004.  Ongoing pain and instability led to surgery (Bankart repair) to stabilize her shoulder in April 2005, and she underwent a subsequent arthroscopy to repair a torn labrum in November 2007.  The CI’s shoulder condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and so she was referred for a MEB.  

The 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)	Ortho ~13 Mos. Pre-Sep	MEB ~6 Mo. Pre-Sep	
Flexion (180 Normal)	140	110/112/111	
Abduction (180)	150	100/100/101	
Comments:  Surgery ~16 Mos. Pre-Sep	Painful motion	Painful motion	
§4.71a Rating	10%	10-20%	

An orthopedic clinic appointment on 22 February 2008 (13 months prior to separation), the CI reported that since her surgery she had had “no dislocations or feeling of instability.”  She did have pain with moving the shoulder and also reported tingling and numbness down her right arm to her fingers.  Examination for ligamentous instability was negative.  She had decreased ROM as indicated in the chart above with painful motion.  A family practice clinic appointment on 25 August 2008 (7 months prior to separation), the CI reported that she had pain in her right shoulder after doing house cleaning and cleaning overhead with her right arm.  On examination she was noted to have pain with forward flexion and abduction, but no specific ROM limitations or measurements were mentioned.  At another family practice clinic appointment on 2 October 2008 (6 months prior to separation), the CI reported that she had a “gradual onset of right shoulder pain while moving her belongings.”  On examination she was noted to have tenderness, crepitus, and painful motion.  The “motion of the shoulders was normal” with no sign of instability, weakness or upper extremity sensory abnormalities.  

According to the MEB NARSUM evaluation on 2 October 2008 (6 months prior to separation) the examiner noted that the CI complained of flare-ups that occurred about three times a week and lasted 1-2 days.  Her condition was exacerbated by “reaching, lifting, overhead reaching, [and] even driving.”  Physical examination showed tenderness and decreased ROM as indicated in the chart above.  She also had increased pain with ROM testing.  Electrodiagnostic study (EMG/NCV) in October 2008 was negative for radiculopathy or peripheral nerve abnormality.  An emergency room visit on 6 October 2008 (6 months prior to separation), the CI reported that she was having right shoulder pain after being assaulted.  Nursing notes indicated that she had right shoulder pain and limited ROM, and was taking narcotic pain medication.  

There was no VA Compensation and Pension (C&P) examination in the record proximate to separation.  The VASRD indicated the CI had a C&P exam for vertigo in August 2012, but failed to report for all other VA exams scheduled in August 2012.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous code 5099-5003 (degenerative arthritis), citing limitation of motion.  The VA indicated “Not Service Connected, No Diagnosis” for the shoulder condition (no VA exam).  The VASRD §4.71a (code 5201, arm limitation of motion) threshold for a rating for ROM impairment is “at shoulder level” (90 degrees from the side), and the ROM in evidence demonstrated motion 10 degrees above this level.  The Board majority adjudged that there was insufficient limitation of motion to support a rating under 5201, and agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion).  There was no malunion or recurrent dislocation of the humerus to justify a rating under code 5202 (humerus, other impairment of); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under code 5203 (clavicle or scapula, impairment of).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right shoulder condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obstructive sleep apnea (OSA), migraines, borderline personality disorder, and vertigo were 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.  IAW DoDI 1332.38, the borderline personality disorder was considered to be a condition not constituting a physical disability.  Therefore it was not eligible for rating under the disability evaluation system.  The OSA, migraines and vertigo conditions were not implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  OSA was noted on the profile as requiring access to electricity during sleeping hours.  Routinely OSA is not considered unfitting solely on the basis of field and operational impediments to the use of a nasal pressure breathing device (CPAP).  There is no evidence in this case that OSA was associated with any functional impairment.  Migraines and vertigo were not listed on the profile and there was no performance based evidence from the record that either 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:  In the matter of the right shoulder condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  The single voter for dissent recommended modification and submitted the appended minority opinion.  In the matter of the contended OSA, migraines, borderline personality disorder, and vertigo 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.  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 20140515, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION.  The minority voter strongly recommends a rating of 20% for the right shoulder coded 5201 IAW VASRD §4.71a.  

The NARSUM exam documented limitation of right arm abduction to 100 degrees as well as a history of flare-ups and exacerbation by “reaching, lifting, overhead reaching, [and] even driving.”  This is consistent with functional impairment (VASRD §4.10) and functional loss (§4.40).  

The 20% criterion under code 5201 is for arm limitation “at shoulder level” (not VASRD-defined as 90 degrees).  The NARSUM ROM demonstrated motion approximating “at shoulder level,” with additional functional loss of limiting overhead activities.  The minority voter also considered VASRD §4.7 (higher of two evaluations) which states “where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.”  The minority voter thus concluded there was sufficient basis for a 20% rating (limitation “at shoulder level”) in this case.  

In the matter of the right shoulder condition, the minority voter recommends a disability rating of 20%, coded 5201 IAW VASRD §4.71a.  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Shoulder Condition	5201	20%	
COMBINED	20%	

MEMORANDUM FOR Commander, US Army Physical Disability Agency (AHRC-00), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXX AR20160007953 (PD201403002)

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