RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03840
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071230

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Laboratory Technician, medically separated for “right ankle injury” and “right shoulder subluxation” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  The CI made no specific contention in his application.  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 - 20071108	VARD - 20080610	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Ankle with Torn Achilles Tendon	5271	10%	Right Achilles Tendon Rupture	5024-5271	10%	20080129	
Right Shoulder Subluxation	5099-5003	0%	Right Shoulder	5010-5203	10%	20080129	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS: 30%	

ANALYSIS SUMMARY:  

Right Shoulder Subluxation.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right-hand dominant CI underwent right shoulder surgery in June 2005 for Bankart repair to stabilize his shoulder.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “right shoulder pain with feeling of apprehension in right shoulder status post Bankart repair” for PEB adjudication.

According to the MEB NARSUM evaluation on 21 September 2007 (3 months prior to separation) the examiner recorded that the CI had right shoulder pain with a feeling that it would sublux in certain positions.  Shoulder dislocations were denied.  Physical examination showed that the CI had normal shoulder strength and ROM with abduction.  Tests for instability were positive (1+ load shift, apprehension, and relocation).  At the time of the physical therapy ROM study on 26 September 2007, 3 months prior to separation, the physical examination showed normal ROM with pain during passive testing of external rotation.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 9 October 2007, 2 months prior to separation, the physical examination showed weakness in the right upper extremity and right shoulder pain with passive ROM testing. At the VA Compensation and Pension (C&P) examination on 29 January 2008, performed 1 month after separation, the CI reported instability with weightlifting and pain with overhead activity.  Physical examination showed normal ROM with pain during external rotation and abduction testing.    

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 5099-5003 code (degenerative arthritis), citing the Army’s Physical Disability Agency pain policy with minimal and intermittent pain.  The VA assigned a 10% rating using the 5010-5203 code (arthritis caused by trauma to the clavicle or scapula), for “arthritis of a major joint with painful or limited motion.”  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 above this level.  However, Board members 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 and no dislocation or nonunion of the clavicle or scapula to justify a higher rating under the 5202 (humerus, other impairment of).  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 right shoulder condition.  

Right Ankle Injury with Torn Achilles Tendon.  According to service treatment records and the MEB NARSUM, the CI underwent right ankle surgery in March 2006 for Achilles tendon repair.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “right ankle pain status post Achilles tendon repair” for PEB adjudication.  According to the MEB NARSUM evaluation on 21 September 2007 (3 months prior to separation) the examiner recorded that the CI had pain and swelling with prolonged standing.  Physical examination showed that the CI had limited motion and tenderness to palpation over the incision area.  There was normal strength with plantar flexion and dorsiflexion.  At the time of the physical therapy ROM study on 26 September 2007, 3 months prior to separation, the physical examination showed near normal ROM.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 9 October 2007, 2 months prior to separation, the physical examination showed tenderness to palpation with passive ROM testing.  The therapist noted that the ankle limitation of motion was secondary to soft tissue restrictions.  At the VA C&P examination on 29 January 2008, performed 1 month after separation, the CI reported right ankle pain, easy fatigability, swelling and some weakness.”  He denied instability.  Physical examination showed limitation of motion of plantar flexion to 30 degrees (normal 45).  His ROM was not painful and was not additionally limited with repetitive use.  His ankle was not tender to palpation nor was his surgical scar.  His right ankle was stable and his strength was normal.    

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, coded 5271 (limited motion of the ankle), citing moderate limitation of motion.  The VA rated the right ankle condition 10%, coded 5024-5271 (limited motion of the ankle due to tendonitis), citing evidence of pain and limited motion due to a healed injury.  The Board considered if the limitation of motion was moderate or marked when considered under code 5271.  All Board members agreed the limitation of motion was no more than moderate supporting the 10% rating adjudicated by the PEB.  A higher rating of 20% was not indicated in the absence of marked limited ROM of the ankle.  The Board considered alternative VASRD ankle and analogous codes, but all were less applicable and not advantageous to rating.  There was no ankylosis of the ankle or subastragalar (sub-tarsal) joints, no malunion of the os calcis (calcaneus) or astragalus (talus) or astragalectomy for consideration under the respective diagnostic codes (5270, 5272, 5273 or 5274).  The Board also considered whether ratings under the VASRD code for other foot injuries (5284) provided for a higher rating (§4.7) however all Board members agreed that the impairment did not more nearly approximated moderately severe to support a higher rating.  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 right ankle condition.  

BOARD FINDINGS:  In the matter of the right shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the right ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 Ankle Injury with Torn Achilles Tendon 	5271	10%	
Right Shoulder Subluxation	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140222, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160009389, 

Dear 

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay. A copy of this decision will be filed with your Physical
Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure