RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01935
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070524

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “chronic bilateral shoulder pain” with a disability rating of 0%.

CI CONTENTION:  “Review all conditions.”  The complete submission is at Exhibit A.

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20070424	VARD - 20070907	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Shoulder Pain	5099-5003	0%	Right Shoulder Instability	5201	0%	STR	
			Left Shoulder Instability	5201	0%	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Bilateral Shoulder.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral shoulder condition began in 2005 while deployment to Iraq having to wear individual battle armor, ruck sack and persistent weapons use.  Radiographic imaging revealed bilateral shoulder ligament tears as well as tendonitis and a left distal collar bone separation.  A January 2007 orthopedic examiner indicated physical findings of bilateral shoulder multidirectional instability (left > right), noting the diagnosis of joint instability shoulder region.

At the 21 August 2006 primary care clinical encounter, 9 months prior to separation, the provider documented the following under history of present illness:  “[CI] with longstanding shoulder pain, L > R.  Notes pain with bench press intermittently.  States he can 'pull his shoulder out of joint' on both shoulders, and has been able to put it back in on his own each time.  Has been able to do this as long as he can remember.  No history of trauma to shoulders.”

A second 11 October 2006 primary care encounter, 7 months prior to separation, noted the CI having a history of being diagnosed with hypermobility syndrome.  Additionally, during the examination of the extremity, the provider documented the following:  “no obvious shoulder deformity, patient [CI] demonstrated ability to partially dislocate both shoulder joints anterior, Full ROM, rotator cuff intact.”  The diagnosis was listed as bilateral shoulder pain.

A 19 October 2006 PT evaluation, 7 months prior to separation, revealed normal strength and range of motion (ROM) of both shoulders with objective subluxations (temporary or partial dislocation with movement back into normal joint position) upon local manipulations.  The examiner opined, “Consider for P3 for change MOS [military specialty], this Soldier wants to remain in the military but is having difficulty with infantry duties.”

At the 02 March 2007 MEB NARSUM examination, 3 months prior to separation, the CI’s chief complaint was, “Both my shoulders are in constant pain and unstable.”  His physical examination revealed normal strength and “full” ROM in both shoulders.  Bilateral subluxations were again noted at various measurements in arm movements.  ROM testing performed by physical therapy on 6 March 2007 was also normal.  Painful motion was documented in the left shoulder 

During a 27 March 2007 orthopedic ROM evaluation, 2 months prior to separation, the CI complained of continued instability problems, worse with firing weapon, lifting, jumping, etc.  Physical examination revealed normal strength with objective subluxations (partial dislocations of a joint) upon local manipulations. There was no VA examination in evidence proximate to separation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral shoulder condition 0%, analogously coded 5099-5003 (degenerative arthritis), citing shoulder pain without specific trauma or injury, the condition existed prior to service (EPTS), but was permanently service aggravated.  The VA rated each shoulder 0%, coded 5201 (arm, limited motion), citing the CI failed to report to two C&P examinations.

The panel considered the bundled approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining the left and right conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.

After extensive deliberation the panel agreed that the evidence supports each shoulder as functionally limiting or reasonably justified as separately unfitting to perform his military specialty and accordingly a separate disability rating is recommended.  Both shoulders were implicated by the commander as interfering with the ability to perform his military specialty, bilateral shoulders were profiled, but neither shoulder was successfully rehabilitated to perform satisfactory duty.

The VASRD §4.71a threshold for rating ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion above this level by noting full ROM.  Only the left shoulder revealed pain upon motion and therefore, all members agreed that a 10% was justified under VASRD §4.59 (painful motion) of the left shoulder.  The panel majority agreed 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) or 5203 (clavicle or scapula, impairment of) codes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the left and 0% for the right shoulder condition, coded 5299-5201.

BOARDS FINDINGS:  In the matter of the left and right shoulder conditions, the panel majority recommends a disability rating of 10% and 0%, respectively, analogously code 5299-5201 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the panel’s scope of review for consideration.  

The panel 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 Shoulder Pain	5299-5201	0%	
Left Shoulder Pain	5299-5201	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150709, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:  The minority voter recommends a 20% rating for each shoulder based on instability.

The CI’s pre-existing/prior to service multidirectional-bilateral shoulder instability became problematic/impairing in 2005 while deployed to Iraq, due to:  wearing individual battle armor, rucksack and persistent weapon use.  Follow on state-side STR examinations documented continued shoulder difficulty with infantry duties leading to a U3 profile.

The U3 profile, 4 months before separation, profiled bilateral shoulder “instability”, which is clear and distinctive from bilateral shoulder “pain”.

The commander’s statement, 4 months prior to separation, implicated bilateral shoulder instability…can’t perform MOS [military specialty] and referenced the aforementioned profile.  The commander stated, “According to the PA's and doctors the CI has seen, Bilateral Shoulder Instability is difficult to recover from.”

The MEB NARSUM, 3 months before separation, rendered “Bilateral multidirectional shoulder instability, not secondary to any specific trauma”; medically disqualifying. 

During an orthopedic consult, 2 months before separation, the examiner opined, the CI is a non-surgical candidate due to significant laxity in both shoulders with multidirectional instability; medically disqualifying.  The MEB forward this same diagnosis as medically disqualifying.

The VASRD §4.71a threshold for rating under the 5202 code (humerus, other impairment) indicates 20% rating for recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements.  It is the minority voter’s position that the CI’s bilateral-multidirectional shoulder instability condition resulted in recurrent dislocations or subluxations (temporary dislocations) of the scapulohumeral joint that the CI resolved by himself not requiring immediate medical care.  This multidirectional instability became officially impairing with the issuance of the U3 profile.  The guarding of all arm movements is substantiated by the STR which documents the CI with significant laxity, as well as the CI’s U3 profile which prohibited the CI from: carrying and firing a weapon; performing pushups and pullups; no rucksack marches; no overhead exercises or activities; and no upper body weight training.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the minority voter recommends a disability rating of 20% for each right and left unstable shoulder condition, coded 5202.

The CI’s prior determination should be modified as follows; and, the discharge with severance pay should be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Right Shoulder Instability	5202	20%	
Left Shoulder Instability	5202	20%	
COMBINED	40%	

AR20170009304, 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.

Sincerely,	
Enclosure