RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02281
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040412

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E6, Infantryman, medically separated for “chronic right shoulder pain” with a disability rating of 0%.

CI CONTENTION:  “Review all conditions.”  The CI’s 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 - 20031229	VARD - 20041013	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Shoulder Pain	5099-5003	0%	Right Shoulder Instability	5014	10%	20040911	
Left Shoulder Separation	Not Unfitting	Left Shoulder Separation	5014	10%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Right Shoulder.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI suffered chronic pain and subjective instability of his dominant right shoulder dating to parachute incident in 1994.  There was no subsequent injury, but reportedly the right shoulder pain increased after surgery for the left shoulder (8 months before separation, detailed below).  There were STR clinical entries (corroborating the NARSUM) that documented an unspecified frequency (possibly clarified in VA evidence below) of subjective subluxations.  There was no STR evidence for clinical dislocations requiring medical intervention and no imaging corollaries of recurrent dislocation (MRI demonstrated no “Bankart or Hill-Sachs lesions [and no] rotator cuff tears or other significant pathology”).  There was ample STR documentation of grossly normal range of motion (ROM), full (5/5) strength, no signs of impingement, and no finding of apprehension was specifically noted.  

There were no STR entries that suggested any significant ROM limitation or functional impairment, or that documented any additional VASRD-ratable findings or alternate diagnoses.  Surgery was not recommended; conservative treatment did not result in sufficient improvement to allow unrestricted duty; and, the CI was referred for an MEB.

The 25 November 2003 NARSUM examination, 6 months before separation, documented pain rated “occasional and slight;” but, noted a history of subluxations.  The latter were characterized as “... pops out with abduction and external rotation.  Just reaching this happens.  It is improving.” The physical examination recorded “full” ROM and strength with “crepitus on circumduction [full anterior-posterior rotation]” without addressing painful motion, and did not note impingement.  As regards objective joint stability, the orthopedist described an earlier examination as “minimally lax ... to distal traction” with a positive “apprehension sign;” but, the contemporary examination stated “no laxity” without additional comment regarding apprehension.

An 11 September 2004 VA Compensation and Pension (C&P) evaluation, performed 5 months after separation, documented “six or seven dislocations” since the 1994 parachute injury; although, members agreed that this likely represented an estimate of the number of the subjective subluxations as referenced in the STR and NARSUM.  The examiner described non-specific pain that “does not bother him daily,” but that forced him to “modify his activities ... avoiding overhead activities” because of apprehension.  The physical examination did not comment on strength or any findings of tenderness or impingement, and did not document objective testing for stability; but, did record a “positive apprehension test” and negative sulcus sign (no anatomically obvious joint laxity).  Measured ROM was normal or near normal for internal and external rotation (not VASRD-ratable) with forward flexion to 180 degrees (normal).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating under code 5099-5003 (analogous to degenerative arthritis) referenced the US Army Physical Disability Agency pain policy.  The VA‘s 10% rating under code 5014 (osteomalacia, defaulting to criteria of 5003) cited the normal ROM from the C&P but referenced the apprehension sign (logically as equivalent to painful motion).  Of note, the VA rating decision acknowledged, but did not rate for, instability.  

There was no minimum compensable ROM limitation and painful motion was not directly addressed in the STR, NARSUM, or by the VA examiner.  Members agreed with the VA decision, however, that the well documented apprehension was reasonably equivalent to VASRD §4.59 (painful motion) in support of the minimum compensable (10%) rating.  There was no ankylosis or fracture (nonunion/malunion) of the shoulder girdle or any 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.

The evidence sufficiently established that there were no true dislocations of the joint as specified under 5202, but members considered the functional evidence as a justification for analogous rating under those criteria as above.  The subjective subluxations were quite infrequent judging by the VA examiner’s estimate; and, although the CI’s apprehension caused him to guard certain movements, members agreed that this was more fairly captured as the painful motion conceded above, not as analogous to ratable dislocations.  The full ROM, the lack of objective instability with an improving course, and the lack of surgical indication were all compelling evidence in support of that conclusion.

After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the panel recommends a 10% rating for the right shoulder condition under code 5099-5024 (analogous to tenosynovitis, defaulting to criteria of 5003).

Contended PEB Condition:  Left Shoulder Separation.  The CI suffered a left acromioclavicular separation from a fall in Iraq in August 2003 followed that April (8 months before separation) by surgical intervention (Weaver-Dunn reconstruction).  An orthopedic note six weeks post-operatively documented good results with full strength and normal ROM.  These findings were corroborated in subsequent physical therapy notes, with a final note confirming full ROM, 5/5 joint strength, and the conclusion “all goals reached.”  The NARSUM documented pain rated “occasional and slight” that was “improving postop” without specifying functional limitations for the left shoulder.  The physical examination recorded “full” ROM and strength (no atrophy), and the unelaborated comment “residual impingement.”  

The MEB’s DA Form 3947 listed the left shoulder condition as failing retention standards, and it was referenced in the commander’s performance statement.  The permanent U3 profile, however, was for the right shoulder only.  

The 5-month post-separation VA C&P examiner documented “gradually decreasing amounts of pain” and an unelaborated need “to modify his activities because of his left shoulder.” The VA physical examination recorded all normal findings; e.g., full ROM and strength, no apprehension, and no note of painful motion.  The VA’s 10% rating was rationalized “because of complaint of chronic left shoulder pain.”  

The panel directed attention to its recommendation based on the above evidence, and its main charge was an assessment of the fairness of the PEB’s determination that the left shoulder condition was not unfitting. The panel’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  Although it was clear that the left shoulder was still symptomatic at separation, the improving post-operative course reflected by the service and VA evidence did not indicate that it would have (in isolation) ultimately resulted in medical separation.   Members agreed thus that there was not a preponderance of performance-based evidence satisfactorily supporting an opinion that the left shoulder condition was separately unfitting.  

Therefore, after due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the left shoulder condition; thus, it was not eligible for service rating.  

BOARD FINDINGS:  In the matter of the right shoulder condition, the panel unanimously recommends a disability rating of 10%, coded 5099-5024 IAW VASRD §4.71a.  In the matter of the contended left shoulder condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There are 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 his prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Capsular Strain without Objective Instability, Right Shoulder	5099-5024	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150825, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170012173, 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,	
Enclosure