RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03129
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040928

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Radar Repair Specialist, medically for “bilateral shoulder pain with instability,” with a disability rating of 10%.  

CI CONTENTION:  The applicant has asked for consideration of all conditions.  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 - 20040817	VARD - 20030825	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Shoulder Pain and Instability...	5099-5003	10%	Right Shoulder Condition	5299-5201	NSC*	N/A	
			Left Shoulder Condition	5299-5201	NSC	N/A	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  N/A	
* VARD dated 20060510 rated the right shoulder 20% coded 5202 based on examination in July 2005 (effective at separation) with a combined 60% rating.  

ANALYSIS SUMMARY:  

Bilateral Shoulder Pain and Instability.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right hand dominant CI first dislocated his left shoulder during an airborne jump in September 1998.  In 2002, he dislocated his right shoulder for the first time.  He had multiple bilateral shoulder dislocations and reported pain and discomfort.  The CI did not desire surgery.  

Despite treatment, the bilateral shoulder condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “bilateral shoulder pain and instability, pain is slight/frequent,” for PEB adjudication.  There were no goniometric range of motion (ROM) evaluations in evidence proximate to separation.  An administrative MEB summary dated 5 May 2004, 4 months prior to separation, noted that the CI’s “shoulders have full range of motion.”  

According to the MEB NARSUM evaluation on 28 July 2004 (2 months prior to separation), the CI reported a 5-year history of dislocations of both shoulders starting in 1998 with his left shoulder and then in 2002 with his right shoulder.  He reported two more and three more dislocations of the right and left shoulders respectively with this most recent being right shoulder in October 2003 and the left shoulder in March 2004.  Examination demonstrated full ROM and no tenderness to palpation.  There was “a slight sulcus sign on his left and positive apprehension sign…Positive O’Brien sign [tests for rotator cuff impingement and instability].”  He had normal strength and normal reflexes.  The examiner indicated “Present Condition and Functional Status:  The (CI’s) shoulder symptoms significantly interfere with his ability to perform his duties since, he is unable to any overhead work.  He cannot do pushups and he is unable to carry a rucksack.”  

The CI did not attend his initial VA Compensation and Pension (C&P) examination proximate to separation.  The VA examination in July 2005 (9 months after separation) was detailed in the May 2006 VARD and indicated the CI reported that he had to have his right shoulder reset as often as every 2 months and that the pain and difficulty moving lasted about 3 weeks.  The ability to perform daily functions during flare-ups was his shoulder would pop out of joint.  Treatment was pain killers and rehabilitation in the past.  Examination showed the right shoulder joint appearance was abnormal with finding of 1 + laxity.  ROM had flexion and abduction to 180 degrees (normal) and was not additionally limited following repetition.  Flare-ups were noted as the right shoulder popping out of joint as often as every 2 months.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5099-5003 code (degenerative arthritis) citing the US Army Physical Disability Agency (USAPDA) Pain Policy; rated as slight/frequent.  The VA did not initially service-connect either the left or right shoulder condition citing a missed VA examination and lack of evidence of a chronic or permanent disability.  The VARD dated May 2006 rated the right shoulder at 20% coded 5202 (humerus, other impairment of) based on the examination 9 months after separation.  There was no VA examination or rating for the left shoulder.  The PEB combined the right and left shoulder conditions as a single unfitting condition coded analogously to 5003.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred to the MEB or be found unfit because of physical disability.  

When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  Both the right and the left shoulder conditions were implicated in the commander’s statement and both shoulders were profiled.  Based upon this evidence the Board surmised that each shoulder condition was separately unfitting and should be considered and rated separately.  The Board considered the NARSUM examination was closest to separation and had the highest probative value for rating at separation.  There was no limitation of motion to support a rating under 5201 for either shoulder.  However, Board members agreed that with consideration of VASRD §4.40, §4.45, and §4.59, that there was additional functional limitation due to infrequent dislocation and instability, that justified a 10% rating for each shoulder, analogous to 5203 (clavicle or scapula, impairment of).  There was no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under the 5203 code (clavicle or scapula, impairment of).  There was infrequent recurrent dislocation of each shoulder and the Board considered if there was sufficient evidence of “recurrent dislocation with infrequent episodes, and guarding of movement only at shoulder level” for either shoulder to warrant a 20% rating under the 5202 code (humerus, other impairment of).  The focus of deliberations was on the NARSUM examiner’s indication of inability to do any overhead work and consideration of the 9 month post-separation VA examination of the CI’s dominate right shoulder.  Board members agreed that there was insufficient evidence to justify a 20% rating for the left shoulder, and the Board majority adjudged that there was insufficient evidence to justify a 20% rating for the right shoulder.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends that each shoulder be unfitting with a disability rating of 10% for the right shoulder condition (by consensus), coded 5099-5203; and 10% for the left shoulder, coded 5099-5203 (unanimously).  

BOARD FINDINGS:  In the matter of the bilateral shoulder condition, the Board unanimously recommends that each joint be separately adjudicated as follows:  an unfitting right shoulder condition coded 5099-5203 and rated 10% (by majority), and an unfitting left shoulder condition, coded 5299-5203 and rated 10% (unanimously), both IAW VASRD §4.71a.  The single voter for dissent recommended re-characterization and did not elect to submit a minority opinion.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Shoulder Pain and Instability	5099-5203	10%	
Left Shoulder Pain and Instability	5099-5203	10%	
COMBINED	20%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140628, with attachments
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 XXX, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXX, AR20160011125 (PD201403129)

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 20% 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