RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03110
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  200500302

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserve Officer O3, Transportation Officer, medically separated for “bilateral shoulder pain,” with a disability rating of 0%.  “Bilateral foot pain” was determined to exist prior to service (EPTS) and was not permanently aggravated.

CI CONTENTION:  The CI contends that her condition continues to worsen and negatively impacts her daily activities.  The CI’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 - 20041129	VARD - 20060118	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Shoulder Pain	5099-5003	0%	Surgical Residuals, Right Shoulder	5201	20%	20050618	
			Left Shoulder Condition	5201	0%	20050618	
Bilateral Foot Pain	5299-5276	EPTS	Degenerative Changes Right Foot	5003-5284	10%	20050618	
			Surgical Residuals, Left Foot	5283-5284	10%	20050618	
Situational Depression	Not Unfitting	Adjustment Disorder/Depressed Mood	9499-9435	NSC	20050618	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:   

Bilateral Shoulder Pain.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented an initial presentation in July of 2001 for right (dominant) shoulder pain after a fall.  There were some complaints of bilateral shoulder pain and subjective instability during that time, but the balance of the clinical course was directed at the right shoulder.  The CI underwent surgical intervention for the right shoulder (arthroscopic rotator cuff repair) in April 2004.  She continued to complain of persistent subjective right shoulder instability.  A magnetic resonance imaging (MRI) demonstrated a minor rotator cuff tear and mild laxity.  Repeat surgery (open repair) ensued in January 2003 (26 months prior to separation).  The CI continued to complain of subjective instability of the right shoulder, although there was no objective instability on examinations, and a repeat MRI confirmed a successful surgical repair.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “right shoulder pain” for PEB adjudication.  

There were multiple STR entries that provided range of motion (ROM) measurements, most of them were for the right shoulder only.  Goniometric ROM measurements were performed for the MEB by physical therapy (PT) on 6 January 2004 (14 months prior to separation): right shoulder forward flexion to 125 degrees (normal 180, 90 for minimum 20%) and abduction to 125 degrees (same parameters); and, left shoulder forward flexion to 145 and abduction to 120 degrees.  Although earlier ROM measurements throughout the clinical course were variable and complicated by periods of surgical recovery, the great majority of them were better than the minimum compensable thresholds.  There were no STR examinations indicating objective instability or impingement of either shoulder, and there was no evidence of objective subluxation or dislocation.  The CI did not respond adequately to a protracted trial of rehabilitation and further surgery was reasonably declined.  An MEB orthopedic referral note of 29 July 2004 was for the right shoulder only, there was no mention of left shoulder or bilateral complaints, and the left shoulder examination was normal.  

The NARSUM examination on 17 March 2004 was supplemented by an orthopedic addendum (same orthopedist as for MEB referral) of 18 August 2004 (6 months prior to separation).  The NARSUM was directed at the right shoulder only, as was the addendum primarily; however, the addendum noted, “She also has had similar instability symptoms with her left shoulder.”  The NARSUM did not elaborate functional limitations; however, the addendum documented (for the right shoulder only) difficulty with overhead work or prolonged abduction, inability to do push-ups, and “sensation of instability and frequently drops objects.”  The orthopedist specified “no true dislocations” for either shoulder.  The NARSUM did not provide a physical examination and replicated the ROM measurements from the above PT evidence.  The addendum documented right shoulder findings of tenderness, a positive apprehension sign, normal motor strength with no atrophy, no signs of instability or impingement, and “full” ROM. 

The earliest temporary profile dating to the 2001 onset was for the right shoulder only.  This remained so throughout subsequent temporary profiles including a U3 profile of 20 January 2004.  The permanent L3/U3 profile dated 26 March 2004 was for “bilateral chronic foot and shoulder pain,” with uncertainty as to whether bilateral also referred to one shoulder or both.  The commander’s performance statement recommended retention and was not probative to separate fitness implications of either shoulder, or whether both were involved.

The 18 June 2005 VA orthopedic Compensation and Pension (C&P) examination, performed  3 months after separation, the CI reported persistent complaints of instability of her shoulders and on the right side continues to subluxation and/or dislocate at times.  Occupational or other functional limitations were not elaborated.  The physical examination recorded a positive apprehension sign on the right but not on the left and normal rotator cuff strength bilaterally, without documentation for instability or impingement.  Measured ROM of the right shoulder was forward flexion of the right shoulder “0 to 90 degrees without difficulty with a painful arc of motion from 90 to 100 degrees,” and abduction on the right was 100 degrees.  Left ROM was forward flexion to 115 and abduction to 120 degrees.  

The Board directed attention to its recommendations based on the above evidence.  The PEB’s DA Form 199 decision did not provide a rationale for bilateral rating of a MEB submission confined to the right shoulder.  The VA rating of 20% for the right shoulder under code 5201 (limitation of motion) was premised on interpreting the C&P forward flexion as 90 degrees, although members agreed that the more accurate interpretation was 100 degrees with painful motion over the last 10 degrees (not meeting the minimum compensable threshold).  The VA’s 0% rating for the left shoulder under the same code was accurate for 5201 criteria.  

The Board’s initial charge was assessing under the above elaborated criteria whether the right and left shoulders were separately unfitting and subject to separate ratings.  The evidence makes clear that the right shoulder was associated with significantly more disability than the left shoulder in this case.  The disparity was such that the question was raised of whether the left shoulder was reasonably justified as separately unfitting.  The left shoulder was not the focus of treatment or surgical intervention, and barely surfaced during MEB proceedings (primarily as a tangential issue in the orthopedic addendum).  It was not forwarded by the MEB for adjudication, nor was it profiled for the extended period of service prior to the PEB.  After due deliberation, members agreed that there was insufficient performance based evidence to support a conclusion that the functional impairment from the left shoulder alone would have rendered the CI unable to perform within her MOS; and, accordingly cannot recommend a separate rating for it.  

Having concluded that only the right shoulder was subject to rating, members turned to the appropriate coding and recommendation for it.  A 20% rating under 5201 (as per the VA) was considered for functional limitation of forward flexion to shoulder level (90 degrees).  Members agreed, however, that this rationale entailed undue speculation with regard to the VA evidence and was refuted by a preponderance of the evidence.  There was no clinical evidence of ankylosis, bone damage, or nonunion/malunion of any component of the shoulder girdle; and, no history of recurrent shoulder dislocation; thus, no shoulder joint code under VASRD §4.71a would yield a rating greater than 10%.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the right shoulder condition; proposing code 5099-5024 (tenosynovitis) for its clinical compatibility.

Bilateral Foot Pain.  The record establishes that the CI suffered from congenital bilateral pes planus and was moderately obese.  There was no STR evidence of discrete injury to either foot.  There was an atraumatic onset of right foot pain in April 2001 with a diagnosis of bilateral pes planus, and by that July there was a complaint of bilateral foot pain worse on the right.  The CI was treated with orthotics and placed on temporary profiles.  She was referred for a podiatry consult outside her command, but those records are not in evidence from the available STR.  There was an operative note in evidence from the referral center that documented surgery on the right foot on 5 February 2002.  This was an osteotomy (bone resection) with a preoperative diagnosis of “deformed fourth metatarsal” and no further pre-operative history.  There was no STR confirmation that the deformity was congenital and related to the pes planus, but there was no alternative explanation in evidence.   

Secondary to the surgery the CI suffered loss of flexion and extension of the 4th and 5th (small) toes producing a hammer toe deformity and the CI experienced pain in the right mid-foot.  Imaging (bone scan followed by MRI) suggested the presence of a contusion or stress fracture of the right talus (main weight-bearing ankle bone).  Two different podiatrists opined that this was caused by a load shift secondary to prolonged use of a cam walker necessitated by the left foot surgery.  There was no evidence for trauma or any other explanation for that diagnosis, and there were no contrary opinions by any other provider.  There were no positive findings on multiple examinations from the STR other than pes planus and a left 4th/5th metatarsal deformity with loss of toe ROM.  Subtalar motion of both feet was normal.  There were various measurements of bilateral ankle ROM with dorsiflexion ranging from 0-5 degrees (normal 20) and normal (45 degrees), to near-normal, plantar flexion.

After the MEB for the shoulder condition was underway the, the CI presented with a complaint of worsening pain of her right foot and continued post-operative pain on the left.  Surgery for the right foot was discussed but deferred.  The condition was added to the MEB and “bilateral foot pain, multi-factorial to include symptomatic pes planus and chronic post-operative pain” was forwarded to the PEB for adjudication.

The MEB NARSUM examination on 17 March 2004 documented bilateral foot pain without elaborating functional impairment.  The physical examination recorded a normal gait and lower extremity strength with no abnormal findings except for “one-fifth in toe flexion/extension to left fourth and fifth metatarsals.”  Bilateral ankle ROM was dorsiflexion 0 degrees and plantar flexion 45 degrees.  

The initial informal PEB determined that the bilateral foot condition exited prior to surgery (EPTS) due to congenital pes planus, without permanent service aggravation (PSA).  The PEB attributed the left foot surgery “to correct a congenital condition,” and this statement was not contradicted or refuted by the CI or any evidence of record.   The CI appealed and produced a NARSUM addendum from a podiatrist which was undated and did not provide an organizational identification.  That examiner noted “bilateral mild to moderate pes valgoplanus deformity, left being more severe than the right” and also diagnosed “talonavicular joint degenerative joint disease of the right foot” and “extension deformity of the left fourth toe, postoperative.”  It was opined that the pes planus was EPTS without PSA, that the right talar condition “can be considered a line of duty diagnosis secondary to trauma,” and that the left fourth toe condition “is a line of duty injury.”  The examiner did not provide directed opinions as to the association of the surgery with an EPTS condition or the association of the left toe condition with the surgery.  The PEB’s response to the appeal acknowledged the submitted addendum, but stated that it remains convinced, “that the right foot injury you suffered was the result of your pes planus, a congenital condition.”  The final informal reconsideration PEB rendered the same decision.

The 18 June 2005 VA orthopedic Compensation and Pension (C&P) examination, performed 3 months after separation, documented that the CI had recently been placed in a short leg walking cast for the right foot pain by the VA with a working diagnosis of stress fracture (no trauma).  The VA file documented that the CI subsequently underwent surgery on the right foot in October 2005 (7 months after separation) and was diagnosed with avascular necrosis (bone damage by loss of blood supply) of the talus.  There was speculation in the VA C&P examination that this was caused by Kohler’s disease (also congenital, but unrelated to pes planus).  The VA C&P examination recorded “patient states that the pain started initially with heavy exertional activity in the military and progressively worsened.”  The VA rating decision quoted this as the rationale for service connection.  The VA C&P physical examination was compromised by the presence of the right cast, but left foot findings were the same as the service descriptions.   

The Board directed attention to its recommendation based on the above evidence.  The VA service connected each foot and conferred separate 10% ratings analogous to code 5284 (foot injuries, other) for “moderate” disability.  The Board’s primary charge was an assessment of the fairness of the PEB’s determination that the bilateral foot condition was not permanently aggravated by service.  The Board’s recommendation in that regard was premised on (and the PEB’s decision subject to) DoDI 1332.38 which is excerpted below.
[E3.P4.5.2.3. Presumption of Aggravation] The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by competent medical evidence establishing by a preponderance of evidence that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training.  Such medical evidence must be based upon well-established medical principles [E2.2.1. - Fundamental deductions consistent with medical facts that are as reasonable and logical as to create a virtual certainty that they are correct.], as distinguished from personal medical opinion alone. Preponderance of evidence is defined as that degree of proof necessary to fully satisfy the board members that there is greater than a 50% probability that the disease was neither incurred during nor aggravated by military service.
The PEB’s position that surgery as treatment of a pre-existing condition did not constitute PSA was compliant with DoDI 1332.38 (E3.P4.5.6), which also stipulates that “generally recognized risks” associated with such treatment is not considered PSA.  Under this principle and applying the above standard, the Board considered three premises necessary to conclude that there was no PSA: 1) the surgery was performed to correct a congenital condition.  2) The ensuing left foot disability was a generally recognized risk of that surgery.  3) The right foot disability was due to the post-operative treatment of the left foot and thus also a generally recognized risk.  With regards to the first and second premises, the medical literature confirmed that reconstructive osteotomy is a well-recognized treatment for significant pes planus recalcitrant to conservative treatment; and, compromise of (or damage to) extensor or flexor tendon mechanisms is an inherent risk of that surgery.  Although an articulated indication for the surgery was not in evidence, it would be exceedingly speculative to assert that it was not directed at correction of a congenital condition.  

The opinion by the MEB addendum podiatrist that the left foot injury was “line of duty” was valid, but had nothing to do with the PSA issue.  The third premise entailed a bit more speculation.  The prolonged use of a cam walker following the left foot surgery was clearly a component of treatment as per the first premise, but the secondary relationship as that being the cause of the right foot talar damage was debatable.  The opinion of separate service podiatrists regarding that cause-and-effect was quite reasonable, and the ultimate diagnosis of avascular necrosis could be ascribed to the same mechanism (pressure necrosis).  Members agreed that the opinion by the MEB addendum podiatrist that the right foot condition “can be” due to trauma was thus excessively speculative and non-specific.  The only other contradictory opinion was the VA speculation about Kohler’s disease (unlikely since it affects predominantly males at an early age); and, even if that were conceded, it would still constitute an EPTS condition occurring atypically in later life with no medically-recognized relationship to any physical stressors (the cam boot still being the logical culprit at any rate).  

Members agreed, therefore, that the third premise was also supported by a preponderance of medical evidence in compliance with DoDI 1332.38.  The aggravation of the pes planus condition by the CI’s obesity (ineligible for rating via DoDI 1332.38, E5.1.3.10) was also considered in, but not critical to, the Board’s recommendation. 

After due deliberation, with application of the above standards of DoDI 1332.38, members agreed that there was insufficient cause to recommend a change in the PEB's determination that the bilateral foot condition existed prior to service and was not permanently aggravated by service, rendering it ineligible for rating.

Contended PEB Conditions:  Situational Depression.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the PEB-combined bilateral shoulder condition, the Board unanimously recommends a rating of 10% for an unfitting right shoulder condition coded 5099-5024 IAW VASRD §4.71a; and, unanimously agrees that the left shoulder condition was not reasonably justified as separately unfitting and thereby not subject to service disability rating.  In the matter of the bilateral foot condition, the Board unanimously recommends no change in the PEB adjudication that it existed prior to service and was not permanently aggravated by service.  In the matter of the situational depression, 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.  

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	PERMANENT RATING	
Tenosynovitis, Right Shoulder	5099-5024	10%	
Surgical Residuals, Labral Tear, Left Shoulder	Not Unfitting	
Bilateral Pes Planus with Recognized Surgical Sequelae	Existed Prior to Service Without Permanent Service Aggravation	
Situational Depression	Not Unfitting	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140625, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXX AR20160013904 (PD201403110)

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