RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04307
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040922

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Rifleman) medically separated for right (dominant) shoulder pain and instability.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The “right shoulder pain and instability status post surgery,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other conditions (lower back pain, bilateral knee pain, insertional sartorius tendinitis, and bilateral ankle instability) for PEB adjudication.  The Informal PEB adjudicated the pain and instability of right shoulder as unfitting, rated 0%, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

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, Enclosure 3, paragraph 5.e. (2).  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/Naval 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:  

IPEB - Dated 20040818	VA* - (~14 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Pain and Instability of Right Shoulder...	5099-5003	0%	Status Post Right Shoulder Dislocation with Residual Tendonitis	5024	10%	20051121	
Lower Back Pain	Not Unfitting	No VA Placement	
Bilateral Knee Pain	Not Unfitting	Patello-Femoral Syndrome, Left Knee	5257	10%	20051121	
		Patello-Femoral Syndrome, Right Knee	5257	0%	20051121	
Insertional Sartorius Tendinitis	Not Unfitting	Insertional Sartorius Tendonitis	5299-5202	NSC	20051121	
Bilateral Ankle Instability	Not Unfitting	Status-Post Chronic Left Ankle Sprain	5271	10%	20051121	
		Right Ankle Condition	5271	NSC	20051121	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  0%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20060831 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Shoulder Condition.  During basic training, the CI fell directly on his right shoulder resulting in pain and joint instability.  Subsequent to numerous right shoulder dislocations, he underwent orthopedic surgery on 29 October 2002.  After extensive rehabilitation, a sports medicine examination performed on 26 January 2004 (15 months after surgery) revealed continued right shoulder pain and evidence of persistent instability despite normal range-of-motion (ROM).  He was permanently profiled in August 2004 and referred to a MEB.  The MEB narrative summary (NARSUM) dated 28 June 2004, 3 months prior to separation, the CI endorsed a constant right shoulder “ache” aggravated by strenuous use, overhead work, lifting and carrying items with his right hand.  Additionally, he endorsed ‘a feeling of instability’ of his shoulder.  His physical examination (PE) revealed normal ROM and normal neuro-sensory and strength parameters.  The test for anterior shoulder joint instability was positive specifically cited as “[The CI] has a markedly positive apprehension-relocation test with anterior shift.”  The examiner’s diagnosis remained right shoulder pain and instability status post surgery and rated his prognosis as “fair.”  

At the VA Compensation and Pension examination performed on 21 November 2005, 14 months after separation, the CI’s history of right shoulder surgery was summarized.  His PE revealed tenderness, guarding, and minimally decreased painful motion of the right shoulder.  Flexion and abduction of the right shoulder was measured as 170 degrees (normal = 180 degrees).  “There was no effusion, instability, weakness, redness, heat or any abnormal movements.”  X-ray of the right shoulder was “within normal limits.”  The VA’s diagnosis was listed as surgically repaired right shoulder dislocation with residual tendonitis.  

The Board directed attention to its rating recommendation based on the above evidence.  Utilizing the Army pain policy, the PEB rated 0% under analogous code of 5003 (degenerative arthritis), whereas the VA rated 10% coded under 5024 (tenosynovitis) citing painful motion.  Board members first considered and agreed that near exclusive examination probative value be apportioned to the MEB NARSUM due to its depth of clinical detail as well as its nearest time reference to the Service separation date.  Absent compensable ROM, the probative MEB examination clearly revealed persistent right shoulder instability described as “markedly” positive.  Board members deliberated on either the appropriateness of rating the shoulder condition based upon VASRD §4.71 (joint motion) versus §4.56 (muscle disability) due to inadequate tendon stability about the joint.  Members concluded that in light of a normal strength assessment coupled with no evidence of surrounding weakness or atrophy, a group muscle code was not appropriate.  Therefore, acknowledging that the shoulder joint consists of multiple bony attachments (to include the clavicle [collar bone] and scapula [shoulder blade]), the presenting evidence supported the sole VASRD rating of 20% under the analogous code 5299-5203 (clavicle or scapular dislocation; chronic) under §4.71a.  There was no additional evidence to support any possible higher rating than the Boards recommended 20%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a Service disability rating of 20% for the right shoulder condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the low back pain, bilateral knee pain, bilateral ankle instability, and the insertional Sartorius tendonitis conditions were 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 above conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.   There was no performance based evidence from the record that any of these conditions 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 determinations for the any of the contended conditions and so no additional disability ratings are 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.  As discussed above, PEB reliance on the USAPDA pain policy AR 635-40 DoDI 1332.39 for rating the shoulder was operant in this case and the condition was adjudicated independently of that policy/instruction by this Board.  In the matter of the right shoulder condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5203 IAW VASRD §4.71a.  In the matter of the contended low back pain, bilateral knee pain, bilateral ankle instability, and the insertional sartorius tendonitis, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.   

RECOMMENDATION:  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	
Instability; Right Shoulder 	5299-5203	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141122, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160005182, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,

XXXXXXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army

Enclosure