RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02073
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061011

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Military Police, medically separated for “right shoulder (dominant side) pain” with a disability rating of 0%.  

CI CONTENTION:  The CI requested a review of 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 - 20060630	VARD - 20070416	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder (Dominant Side) Pain…	5099-5003	0%	Right Shoulder Instability with Recurring Dislocations Status Post Superior Labral Anterior Posterior (SLAP)	5202	30%	20070118	
Intrauterine Pregnancy	Not Unfitting	No VA Placement	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Right Shoulder (Dominant Side) Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right-hand dominant CI underwent right shoulder surgeries in December 2003 and July 2004 for superior labral anterior posterior (SLAP) II tear repairs and in October 2005 for inferior capsular shift.  Following surgery further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic subluxation and pain of the right shoulder with failed surgical correction times 3” for PEB adjudication.  
According to the MEB NARSUM evaluation on 28 April 2006 (6 months prior to separation) the CI reported she continued to have dislocations of her right shoulder and had lack of strength.  She had constant pain which she rated at 8/10.  Precipitating factors were any right arm activity.  During flare ups she was not able to do anything with her right arm.  She reported her shoulder dislocated anytime she raised the right arm too far up, carried heavy objects, or rolled around in her sleep.  On examination, the right shoulder demonstrated subluxation during range of motion (ROM) measurements.  The right shoulder also demonstrated laxity.  An apprehension test of the shoulder was positive.  There was no muscle atrophy or spasms of the shoulder.  Right shoulder flexion was 155 degrees (normal 180 degrees) and abduction was 145 degrees (normal 180 degrees) after repetitive motion and “constitute the mechanical limits of her shoulder joint.”  There was tenderness and painful motion present.  

At the 18 January 2007 VA Compensation and Pension (C&P) examination, performed 3 months after separation, the CI reported pain which she rated at 5/10.  She could carry her baby on the car seat with her left hand only.  She could not sleep on the right arm.  Right-sided lifting/carrying was possible only for short times and only for very light weights.  She was still experiencing frequently recurring dislocations in the right shoulder joint.  She also avoided any too high motions of the right shoulder and/or lifting and carrying much on the right side.  Physical examination showed no edema or effusion.  There was slight atrophy of the right upper arm.  There was no redness or heat.  Strength testing was 4 out of 5 (normal 5/5) and the CI was unable to hold her right arm against strong resistance.  Right shoulder flexion was 84 degrees (normal 180 degrees) and abduction was 87 degrees (normal 180 degrees).  Painful motion was present.  The orthopedic diagnosis was “chronic instability, right (major) shoulder, with frequently recurring dislocations, SLAP II tear, capsular shift and scary changes…”  

The panel 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 US Army Physical Disability Agency Pain Policy.  The VA assigned a 30% rating using the 5202 code (other impairment of humerus) for recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all movements, and for malunion of the humeral head with marked deformity.  The panel noted the disparity between NARUM and VA examinations and carefully reviewed the evidence proximate to separation to determine the probative value of each examination.  The VA examination was further from surgery and closer to the date of separation, and was assigned the higher probative value for rating.  

All examinations documented recurrent subluxation of the scapulohumeral joint for analogous rating under code 5202 (other impairment of humerus) IAW VASRD §4.20 (analogous ratings).  The panel discussed the differences between subluxations, dislocations, guarding of movement, and measurements of strength and muscle atrophy.  The panel deliberated if the CI’s disability picture more nearly approached the 30% rating level for “frequent episodes and guarding of all arm movements,” or the 20% rating level for “infrequent episodes, and guarding of movement only at shoulder level.”  

Service examinations showed right shoulder subluxation on multiple examinations, the NARSUM indicated shoulder laxity, and the history indicated the shoulder dislocated anytime she raised the right arm too far up, carried heavy objects, or rolled around in her sleep.  The VA examination indicated persistent frequent subluxations/dislocations as well as 4/5 shoulder weakness, slight muscle atrophy, and pain-limited motion below shoulder level.  

Panel members’ consensus was that the CI's disability picture and functional impairment at separation more nearly approached the 30% rating criteria under code 5202 (major/dominant).  The ROM examinations demonstrated shoulder motion that would not rate higher than the 5202 rating.  

Contended PEB Condition:  Intrauterine Pregnancy.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  Pregnancy is not a ondition that constitutes a physical disability, and is therefore not compensable.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the right shoulder pain condition, the panel majority recommends a disability rating of 30%, coded 5299-5202 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion. In the matter of the contended intrauterine pregnancy condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  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; and, that the discharge with severance pay 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 Pain	5299-5202	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150810, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

Minority Opinion

The minority voter respectfully submits evidence of the following incongruities in the record and what is believed to be a solid case for recommending the CI’s current disability separation rating be modified from 0% to 20% for her right shoulder condition.  There is beyond a reasonable doubt the PEB inappropriately applied the US Army pain policy in this case.  The PDBR therefore has ample justification to propose a new rating in accordance with USC Title 38, part IV (VASRD).

Per VASRD § 4.7 higher of two evaluations:  “where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.”  In this case, the choice for a fair and equitable disability recommendation for this CI is clearly between 20% and 30% under code 5202.  No other code under the VASRD is more appropriate given the pathology in this case.  The 20% vs. 30% criteria for this code are as follows (relevant portions underlined):

5202 Humerus, other impairment of:			Major		Minor
Recurrent dislocation of at scapulohumeral joint.
With frequent episodes and guarding of all arm movements  	30 		20
With infrequent episodes, and guarding of movement only at
shoulder level  			20 		20

The majority correctly identifies the VA examination as being closest to separation.  It is debatable that it is however, most probative in determining a rating recommendation in this case.   Service examinations specifically documented subluxation.   Per Miller-Keane Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health, Seventh Edition, subluxation is defined as “an incomplete luxation or dislocation; although a relationship is altered, contact between joint surfaces remains.”  Medicine specifically differentiates between dislocation of a joint vs. subluxation.  Subluxations were well documented during the NARSUM examination and were a part of the examiner’s final assessment.  The VA examination, as correctly noted above, proffered a diagnosis as follows:  “chronic instability, right (major) shoulder, with frequently recurring dislocations, SLAP II tear”.  However the examination itself did not clearly document any dislocation after repeated range of motion testing, and in fact documented “persistent, frequent right-sided luxations” during said examination.  The examiner further noted “abnormal movement: still frequently recurring dislocations, right shoulder joint.  Guarding of movement:  avoids any too high motions of the right shoulder”.   This statement seems to indicate an historical account of the dislocations and implicitly documents absence of guarding of arm movements in all planes of movement.  It is quite a difference between the CI self-reporting dislocations vs. objective examinations noting such dislocations.  Furthermore, nowhere in the record proximate to separation is there evidence of the CI being urgently or emergently treated for a dislocation of her disabled right (major) shoulder.  In addition, there is no evidence whatsoever to substantiate the CI had guarding of all (with emphasis) arm movements, as is stipulated by the criteria above – to meet the 30% disability level in this case.  No focused examination showed this.  In fact, an examination from April 2006 by orthopedics showed full range of motion, no muscle atrophy (atrophy would be a sign of disuse – something reasonably deduced from someone who would guard all arm movements).  Further, no examination showed such atrophy.  From a functional standpoint, the CI’s commander, in April 2006, stated: “She has been assigned to the Administrative Office primarily because she is pregnant and not because she is unable to perform her jobs as a Military Police soldier.”  The commander documented the CI could run and that she “has a problem with lifting heavy weights over her head.”  This implicitly indicates she did not have guarding of all arm movements.  The commander also assessed that the CI could perform most tasks required of her physically.  

The PDBR reviews rating determinations by the Service departments and in making recommendations, must apply the VASRD in accordance with VASRD § 4.1 essentials of evaluative rating (excerpted, with relevant policy underlined):  “This rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.   Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.”

In summary, the majority failed to prove two critical elements in recommending a 30% rating in this case.  Primarily, the evidence in record does not support the VASRD criteria under 5202 for a major joint at the 30% level (or above).  Secondly, the disability picture given the CI’s well documented range of motion, absent atrophy, solid performance in a civil-like occupation, ability to run, as well as ability to perform most physical tasks required of her, more nearly approximates the lower disability rating under code VASRD 5202, that being 20% for the major (shoulder) joint.  The minority voter therefore recommends the following in order to fairly and justly modify the CI’s current disability rating which she received at the time of her medical separation from the Army:

CONDITION	VASRD CODE	PERMANENT RATING	
Right Shoulder Pain	5299-5202	20%	

AR20170009994, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and recommended that your percent of disability be increased to 30%.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I regret to inform you that I reject the Board’s majority recommendation and accept the Board’s minority opinion that your disability rating should be modified to 20% but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.  

	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