RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01751
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040308

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Explosive Ordnance Disposal Specialist, medically separated for “bilateral shoulder pain and instability,” with a disability rating of 0%.

CI CONTENTION:  The CI contends that his bilateral shoulder instability continues to worsen and that his rating should be changed.  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 based upon a 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 - 20040129	VARD - No VA Claim	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Shoulder Pain and Instability	5099-5003	0%	--	--	--	--	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  N/A	

ANALYSIS SUMMARY:  The Board provides the following clarification regarding its approach to PEB consolidated ratings.  The PEB combined the right and left shoulders under a single service disability rating, coded analogously to 5003 (degenerative arthritis).  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and that there was no need for separate fitness adjudications.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under VASRD criteria of 5003, and that this approach does not necessarily 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 that it alone would not have caused the member to be referred into the DES 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.

Bilateral Shoulder Pain and Instability.  There was a paucity of source clinical notes in the available service treatment record (STR) for this case, and the Board’s recommendation was derived primarily from the Medical Evaluation Board (MEB) narrative summary (NARSUM) with an orthopedic addendum, and the core military disability evaluation system documents.  The right-hand dominant CI began to complain of bilateral shoulder pain and instability in 1996 (approximately a year after service entry).  He underwent surgery (Bankart repair) of the left shoulder in November 1997; and, subsequently of the right one (arthroscopic capsular shrinkage) in June 1998.  With recurrent subluxation of the left shoulder, he underwent repeat surgery on that side (open capsular shift) in February 2002 (2 years before separation).  The CI did well post-operatively and successfully managed a deployment to Afghanistan in 2002.  In November 2003 (4 months before separation) he suffered a subluxation (partial dislocation) of his right shoulder while weight lifting.  This was corroborated by an STR clinical entry from that period.  He was seen by orthopedics and no additional surgery was recommended, but it was judged that he could no longer handle the demands of his specialty.  He was referred for an MEB which in turn forwarded “bilateral shoulders, persistent arthralgia” to the PEB.

An orthopedic addendum to the NARSUM was dated 11 December 2003 (3 months before separation) and stated, “He has done well but continues to complain of some discomfort and laxity in his right shoulder as well as pain and inability to perform his duties ... in his left shoulder.”  The physical examination recorded “mild positive impingement [not probative to rating],” “positive apprehension [suggestive of joint laxity],” “negative sulcus [joint properly in place],” and “positive relocation [reinforces validity of positive apprehension]” for both shoulders.  The examiner noted “1+ load and shift [objective instability to stress maneuver]” for the right shoulder, but a negative load and shift sign on the left.  Measured range of motion (ROM) was bilateral forward flexion to 170 degrees (normal 180, 90 for minimum 20%) and bilateral abduction to 160 degrees (same parameters), without comment regarding painful motion.  

The NARSUM was dated 3 December 2003 (2 months before separation) and stated, “His current status is that he continues to have right shoulder pain and apprehension provoked by ... certain movements such as abduction and overhead lifting ... feels unstable with lifting more than 20 pounds ... left shoulder feels fine except for pain with abduction and extension [e.g., painful motion].”  In addition to prohibiting overhead lifting greater than 15 pounds, the NARSUM listed prohibition of requisite elements of physical fitness testing (push-ups, pull-ups, pain with the jostling of running).  The physical examination (also referring to the findings in the addendum) recorded “mild” tenderness (subacromial) on the right with none on the left, and normal strength at the shoulder girdle.  Measured ROM was bilateral forward flexion to 160 degrees and abduction to 160 degrees left and 175 degrees right.

There was no VA claim, evaluation, or treatment; and, there was no other post-separation evidence in this case.

The Board directed attention to its rating recommendation based on the above evidence.  First it was noted that the PEB’s bilateral rating of 0% did not comport with VASRD §4.71a which confers a 10% rating under 5003 for the involvement of “2 or more major joints” without specifying a need for additional criteria.  This notwithstanding, members first deliberated whether separate joint ratings were justified based on fitness considerations as elaborated above.  Although the left shoulder was not as acutely symptomatic as the right one at the time of separation, it remained problematic with regard to continuing performance within the CI’s military specialty.  This was forthrightly stated in the orthopedic addendum.  Both shoulders were chronically painful and both had required surgical intervention; and, logically each one would have prevented satisfactory compliance with physical fitness testing.  Members thus agreed that each shoulder was reasonably justified as separately unfitting and thus eligible for Service rating.  

Having so concluded, members turned to deliberation of the appropriate coding and rating recommendations for each shoulder.  Although there was no minimum compensable ROM limitation, members agreed that VASRD §4.59 (painful motion) and/or §4.40 (functional loss) were reasonably supported by the evidence and fairly conceded in support of the minimum compensable 10% rating for each joint.  There was no ankylosis or fracture (nonunion/malunion) of the shoulder girdle or other criterion supported by the evidence that would satisfy a rating higher than 10% under any applicable code available in VASRD §4.71a, except for consideration of rating under code 5202 (humerus, other impairment).  Code 5202 offers ratings for recurrent dislocation, and its analogous application is justified for instability and “guarding of movement” that is functionally equivalent to recurrent dislocation.  Members agreed that the left shoulder was objectively stable after the 2002 surgery, with no evidence of recurrent dislocation; and, although there was apprehension to exam maneuvers, there was no evidence that this was functionally significant to an extent meriting even analogous rating for instability.  

Although there was a stronger case for rating under 5202 for the right shoulder (a recent subluxation and some mild objective instability on examination), it was noted that ROM was well preserved, that the only subluxation was due to significant stress on the joint (weight lifting), and that the MEB orthopedist characterized the condition as some joint laxity with “arthralgia” rather than as frank instability.  The functional evidence indicated that there was pain with overhead use, but not guarding that prohibited any activity other than overhead lifting.  Member consensus was therefore that the right shoulder also did not meet a satisfactory threshold for rating (even analogously) under 5202.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board’s consensus recommendation is separate 10% ratings under code 5099-5024 (tenosynovitis) for each shoulder.

BOARD FINDINGS:  In the matter of the PEB-combined bilateral shoulder condition, the Board by a majority vote recommends that each joint be rated as separately unfitting at 10%, each coded 5099-5024 IAW VASRD §4.71a.  The single voter for dissent recommended a 20% rating for the right shoulder under code 5299-5202 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 his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Ligamental Injury with Surgical Residuals, Right Shoulder	5099-5024	10%	
Ligamental Injury with Surgical Residuals, Left Shoulder	5099-5024	10%	
COMBINED (w/BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150612, w/atchs
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 300, Arlington, VA  22202-3557

11 Apr 2017

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20170001943 (PD201501751)

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