RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX						       CASE:  PD-2014-03429
BRANCH OF SERVICE:  Army	BOARD DATE:  20141024
SEPARATION DATE:  20090127

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (63B/Light Wheeled Vehicle Mechanic) medically separated for left (non-dominant) shoulder pain secondary to a lateral tear.  The condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards.  He was issued a permanent P3U3 profile and referred for a Medical Evaluation Board (MEB).  The shoulder condition, characterized as “chronic left shoulder pain following labral tear,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (epilepsy and migraine headaches) for PEB adjudication.  The Informal PEB (IPEB) adjudicated the shoulder condition as unfitting, rated 10%, citing application of the VA Schedule for Rating Disabilities (VASRD).  The IPEB also determined there was compelling evidence to support a finding that the seizure condition existed prior to service (EPTS) and was not permanently aggravated beyond natural progression by military service.  The remaining migraine headache condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting shoulder condition is addressed below.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20081222	VA - (4 Yrs., 3 Mos Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left (Non-Dominant) Shoulder Pain Secondary to a Lateral Tear	5099-5003	10%	Rotator Cuff Tendinopathy And Subcoracoid with Labral
Tear, Left Shoulder	5201-5024	10%	20140425	
Epilepsy…	8910	--%	Seizures, Grand Mal (Claimed as Epilepsy)	8910	40%	20140419	
Headaches/Migraine	Not Unfitting	No VA Entry	
Other x 0 (Not in Scope)	Other x 4	20140419	
Rating:  10%	Combined:  100%	
Derived from VA Rating Decision (VARD) dated 20140521.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s implied contention for the ratings of his epilepsy and migraine condition which was determined to EPTS or not unfitting by the PEB, respectively, and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.  

Left Shoulder Condition.  The CI reported his left shoulder pain began during a combative tournament while in Advanced Individual Training in April 2007.  He was caught in a joint lock maneuver and while he attempted to pull out, he felt a popping sensation in his left shoulder.  He was transported to the emergency room (ER) for evaluation.  Radiographs were negative.  The CI was diagnosed with left shoulder sprain, prescribed anti-inflammatory medications for pain relief and referred to physical therapy (PT).  On 22 July 2007, magnetic resonance imaging (MRI) demonstrated a labral tear.  There was evidence of mild acromioclavicluar joint arthritis with normal joint alignment.  Range-of-motion (ROM) recorded during PT performed on 4 September 2007 noted flexion of 110 degrees and abduction to 110 degrees.  On 3 October a PT entry recorded pre-treatment flexion of shoulder to 155 degrees, abduction to 140 degrees.  After PT treatment there was full active ROM with pain at the end range.  Radiographs of the shoulder dated 13 November 2007 were normal.  Orthopedic visit on 14 November 2007, noted surgery to repair the tear was a treatment option.  The CI participated in 2 months of physical therapy, was treated with anti-inflammatory and narcotic medications but his pain continued.

The narrative summary (NARSUM) exam performed on 19 August 2008, 5 months prior to separation, noted the CI had not had surgery and was awaiting command approval.  The CI reported daily shoulder pain flare-ups, which lasted for approximately 10-20 minutes.  Rest and medication mitigated his pain.  Lifting and certain movements of the upper extremity exacerbated the pain.  The CI reported he was unable to perform the duties associated with being a light wheel mechanic.  He was unable to turn wrenches, lift parts and perform physical training.  The physician noted the CI had a profile for seizures and “prior shoulder injury.”  His profile limited his ability to carry and fire weapon, move with a fighting load at least two miles, wear protective mask and all chemical defense equipment, construct an individual fighting position and limited other physical activities.  Physical examination recorded tenderness to palpation throughout shoulder joints.  Minimal pain noted on forward flexion.  Muscle strength and sensory examination were normal.  ROM recorded on three separate measurements average 132 degrees of flexion with pain and 104 degrees of abduction with pain.  The examiner assessed chronic left shoulder pain status post labral tear and opined the condition failed to meet retention criteria.  The CI did not submit a VA claim prior to November 2013.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB chose to rate the condition analogous to 5003 (degenerative arthritis) and granted the minimal compensable rating for “limitation of motion of one major joint {flexion 132, abduction 104},” 10%.  The VA, approximately 4 years later, rated the condition at 10% (5201-5024).  In accordance with DoDI 6040.44, the Board is required to recommend a rating IAW the VASRD in effect at the time of separation.  Applicable diagnostic codes include: 5003 (degenerative arthritis) 5201 (limitation of arm motion); 5202, (humerus, other impairment) and 5203 (dislocation of clavicle or scapula).  The Board considered the rating under code 5003 and agreed there was pain supporting the 10%.  There was insufficient evidence to support the higher rating of 20% using this code since there were no incapacitating episodes.  The Board considered code 5201 for reduced ROM and agreed the reduced ROM was not compensable under any code.  The Board considered rating under the 5202 and 5203 codes; however, there was no clinical or radiologic evidence supporting the use of these codes.  Additionally, there was absence of clinical or radiologic evidence that suggested dislocation of, nonunion of, or malunion of the clavicle or scapula at the time of separation.  Hence, no alternative shoulder code is supported in justification of a rating higher than 10% under the above referenced codes.  There was no evidence of ratable peripheral nerve impairment which would provide for additional or higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded there was insufficient evidence to recommend a change from the PEB’s adjudication of the left shoulder condition.

Epilepsy Condition.  Orthopedic clinic entry dated 26 December 2007 recorded the CI’s reported he had experienced a seizure “last summer,” had been evaluated at a civilian hospital, prescribed medication but did not take the medications given to him after discharge.  He noted he had no recurrent seizure activity.  On 2 January 2008, records indicated the CI experienced a seizure and was prescribed medication in the ER; however, had not picked up the medication.  On 15 January, electroencephalogram (EEG) report was negative for seizure activity.  Neurology clinic entry dated 18 January 2008 recorded the 2 January seizure was witnessed by his unit.  He reportedly stated he had no recollection of the event, he blacked out.  The CI reported he was on medication in 2006 (pre-service) for “black out” with headache, drooping and foaming at the mouth (highly suggestive of grand mal seizure).  Neurology clinic encounter on 8 April 2008, noted the CI reported he had “two more spells,” witnessed by his wife who said he was shaking and “out for two minutes.”  The neurologist noted the CI was placed on anti-epileptic medication on 8 January.  The dose of his medication was increased and the CI was instructed to present to the lab for assessment of drug level.  On 19 May 2008, a neurology visit recorded the CI had no more spells after the increase in medication dose.  There was no mention of a seizure on 16 May as documented in the neurology MEB below.  The neurology MEB recorded his history of seizures prior to entry into the military.  The physician noted the CI had not obtained the labs required for monitoring treatment ordered in January and April 2008, was non-attendant to the neurology scheduled follow-up appointment in February and non-attendant for the brain MRI scheduled in May 2008.  The examiner noted the medication dose was increased in May (records recorded April) after the CI reported two small spells and had remained free of spells until 16 June 2008, (treatment records suggested he was seizure free until Sep. 2008).  Medication levels were drawn on 22 May and 16 June 2008, both recorded a level of less than 10, indicating non-compliance.  The physician noted the CI had failed a trial of therapy with adequate dosing of anti-epileptic medication and failed to meet retention standards.  The neurologist recorded the diagnosis of epilepsy and noted the condition EPTS and had no clear links to military service.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB indicated the seizure condition was unfitting, not compensable and EPTS.  The PEB further stated, “There is no evidence that anything in the military has permanently aggravated his condition beyond the natural progression of a seizure disorder.”  In addition, the PEB cited 1332.38, Part 3, E3.P3.2.2.1 (unfit because medical condition represents a decided medical risk).  The VA rated the condition of seizures 4 years after separation, at 40%.  The Board deliberated if there was evidence to support that the CI had a compensable condition.  The PEB recorded that the CI had several seizures that could not have been attributed to “break through” because he was either not taking his medication or his medication levels were sub-therapeutic.  The PEB also noted it was believed that if the CI had been compliant with his medication, he would have likely been retained and not found unfit.  DoDI 1338.38, Part 3, E3.P4.5.2.3 (presumption of aggravation) notes “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…..preponderance of evidence is defined as that degree of proof necessary to fully satisfy that there is greater than a 50% probability that the disease was neither incurred during nor aggravated by military service.”  

The Board undertook a careful review of the available clinical evidence and noted the CI had acknowledged his seizure condition existed prior to joining the military.  The neurologist noted in the NARSUM that the CI reported he was treated for “blacks out,” did not recall the name of the medication and had taken the medication up until the time of entering the service.  The record in evidence recorded two reported drug levels of less than 10 (50-100).  After his first recorded seizure in 2008, the neurologist noted the CI had not picked up his prescribed medication.  In April 2008, the CI did not go to the lab as instructed to obtain the necessary labs to determine effectiveness of treatment.  He then had two more seizures.  The CI presented to the ER in September 2008 after having a seizure and admitted he had not been compliant with his anti-epileptic medication.  The neurologist opined that his seizure disorder had no clear links to military service.  The PEB noted that the CI would have been retained if the CI had have been compliant with treatment protocol.  DoDI 1332.38, Part 3, E3.P4.5.3 (prior service impairments) states, “Any medical condition incurred or aggravated during one period of service…should normally be considered incurred in the line of duty provided the condition or subsequent aggravation was not the result of the member’s misconduct or willful negligence.”  The Board noted the NARSUM physician stated, “Anti-epileptic medications don’t work if you don’t take them.”  The neurologist noted that the medication never reached the therapeutic level over a 6-month period.  In April 2008, his medication dosage was increased and the treatment records suggested he had no seizures until September 2008, at which time he reported he had not been compliant with medication.  The Board noted the CI experienced another seizure in April 2009, 3 months after separation and the ER physician indicated the CI had not been compliant with his medication.  After deliberating, all Board members agreed, per the CI’s admission, the condition EPTS and there was not a preponderance of evidence to support that the condition was aggravated by service.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the seizure condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that migraine headache condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board reviewed the record in evidence and noted the CI reported he had good response to abortive therapy; however, reported headaches were present every other day.  He was instructed to maintain a self- assessment calendar so that more definitive treatment could be rendered; however, no calendar was ever recorded.  The migraine headache condition was not profiled and was not judged to fail retention standards.  The condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the headache condition 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 migraine headache 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 left shoulder pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the epilepsy condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended migraine headache 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, 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 20140703, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150011221 (PD201403429)

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:

Encl			     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA