RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03304
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050911

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Infantryman) medically separated for chronic bilateral shoulder pain, rated at 0%.

CI CONTENTION:   The applicant has asked for consideration of all conditions in his application.  His 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 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:  
FPEB - Dated 20050802	VA* -  based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Shoulder Pain with…	5099-5003	0%	Bilateral Shoulder Condition	5299-5201	NSC**	STR	
Obstructive Sleep Apnea	Not Unfitting	Sleep Apnea	6847	NSC	STR	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0	
RATING:  0%	RATING:  NA	
*Derived from VA Rating Decision (VARD) dated 20061013 (most proximate to date of separation (DOS)).  
**Service connection granted for RT Shoulder at 20% (Lt Shoulder still NSC), effective 20090928 on VARD 20101019.

ANALYSIS SUMMARY:  

Bilateral Shoulder Pain.  An orthopedic evaluation dated 14 February 2005 documented an eight year history of bilateral shoulder pain.  At that time the CI reported shoulder popping and instability.   On physical examination there was full active shoulder range-of-motion (ROM) with bilateral subacromial (front of the shoulder) tenderness to palpation.  The examiner opined that the CI possibly had an impingement on the right and possible labral tear on the left.  A magnetic resonance imaging (MRI) study without contrast performed 6 October 2004 was normal.  The CI was treated with activity modification, physical therapy, and anti-inflammatory medications.  A MRI arthrogram dated 4 April 2005 revealed bilateral subacromial bursitis with degenerative arthritis of the acromioclavicular joint.  At the narrative summary (NARSUM) examination approximately 3 months prior to separation the CI reported a history of a right shoulder dislocation during combat training with spontaneous reduction.  He underwent steroid injections in November 2004 without pain resolution.  Physical therapy shoulder ROM measurements demonstrated pain limitation of flexion to 175 degrees (normal 180) on the left and 170 degrees on the right and abduction to 177 degrees (normal 180) on the left and to 175 degrees on the right.  The CI did not report for a VA Compensation and Pension examination.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral shoulder condition at 0%, coded 5099-5003 (analogous to degenerative arthritis).  VA did not service-connect the condition.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each joint subsumed under the single disability rating must be reasonably justified as separately unfitting in order to remain eligible for rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  In this case, both shoulders were profiled, considered to fail retention standards, and implicated by the NARSUM and in the commander’s statement.  Members agreed that each shoulder is separately unfitting and that identical coding and ratings are applicable. The Board then considered whether the evidence supported a higher than 0% rating.  The Board determined that radiographic evidence of bursitis and degenerative arthritis of the acromioclavicular joints, subjective reports of pain with use, objective findings of non-compensable pain limited shoulder motion, and tenderness to palpation met criteria for the application of VASRD §4.40 (functional loss).  There was no objective evidence of shoulder instability for an additional 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 left shoulder and 10% for the right shoulder.    

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that obstructive sleep apnea (OSA) condition 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 condition was permanently profiled, identified by the MEB as not meeting retention standards, but was not judged to fail retention standards by the PEB.  Treatment records evidence that the CI was placed on a no physical training duty restriction on 27 October 2004.  He was evaluated by otolaryngology on 15 February 2005 for possible sleep apnea.  At that time he reported loud snoring, disruptive sleep, day time sleepiness, and witnessed apnea.  A polysomnogram performed on 11 March 2005 demonstrated moderate OSA controlled by CPAP.  At the time NARSUM examination the CI reported “better sleep” with CPAP.  Board members agreed that there was no performance based evidence from the record that OSA 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 contended  OSA condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the bilateral shoulder pain condition, the Board unanimously agreed that each shoulder was separately unfitting and recommends a disability rating of 10% for each shoulder, coded 5003 IAW VASRD §4.71a and §4.40.  In the matter of the contended obstructive sleep apnea 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.  

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%	
Left Shoulder Pain 	5099-5003	10%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140616, w/atchs
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 XXXXXXXXXXXXXXXXXXXX, AR20160005520 (PD201403304)

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
( ) OVA