RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02580
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20031219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O2, Sanitary Engineer, medically separated for “post traumatic degenerative joint disease, left elbow” and “chronic pain and instability right shoulder, with associated headaches,” rated at 10% and EPTS (existed prior to service), respectively, with a combined disability rating of 10%.

CI CONTENTION:  The CI contends that he was diagnosed with multiple sclerosis by the Veterans Administration and that he meets the rules for a presumption that it was caused during his military service.  He contends that his right shoulder and headache conditions were aggravated during weapons qualification while entitled to base pay.  He contends that his psychiatric disorder was caused by his military-incurred injuries.  He also contends that the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB) were missing information and records and that he was only given 3 days to rebut the PEB findings, which was not adequate given his physical disabilities.  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 – 20030902	VARD - 20030606	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Post Traumatic Degenerative Joint Disease, Left Elbow	5010	10%	Left Elbow Radial Head Fracture…	5209	NSC	STR	
Chronic Pain and Instability Right Shoulder, with Associated Headaches	5099-5003	EPTS	Right Shoulder Dislocation	5203	NSC	STR	
Mood Disorder	Not Unfitting	Depression	9434	NSC 	STR	
		PTSD	9411	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Post Traumatic Degenerative Joint Disease, Left Elbow.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s non-dominant left elbow condition began on 20 January 1998 after slipping and falling on ice while deployed.  X-rays demonstrated a radial head fracture.  A field hospital report dated 26 June 1998 noted an X-ray showed a relevant depression of 4 mm.  A Line of Duty (LOD) was issued for the left elbow injury.  X-rays dated 13 October 1998 demonstrated normal bone, joints, and soft tissue.  A VA orthopedic note dated 13 October 1998 indicated the left elbow range of motion (ROM) was 0-150 degrees (normal 0-145) with no limitation in pronation or supination.  A Tinel’s test (to determine irritation of the ulnar nerve) of the cubital tunnel (at the elbow) was positive.  X-rays showed the fracture of the radial head in satisfactory alignment.  In July 2002, a physical medicine and rehabilitation (PM&R) specialist noted the CI had pain to his arm when he had to reach out to use a remote gate opener.  A PM&R note dated 29 August 2002 indicated the visit was a follow-up for pain secondary to an injury to the left elbow on 20 November 1998 and indicated the CI was pending left elbow surgery.  The CI continued to note left elbow pain in August 2002, while on 26 September 2002 his left forearm was mildly tender on examination.  

The 15 January 2003 MEB NARSUM examination, 11 months prior to separation, noted complaints of chronic left elbow pain.  Physical examination showed left elbow flexion of 120 degrees (normal 145) and extension of 20 degrees (normal 0).  There was diffuse tenderness to palpation about the elbow.  He had 3/5 elbow flexion and extension strength and had pain with ROM of the elbow along with crepitus (grinding).  During the 16 January 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 11 months prior to separation, the CI reported a left elbow radial head fracture.  The CI also noted joint pain reported to the Gulf War Registry 97-98.  Physical examination showed decreased ROM due to pain.  In the summary of defects and diagnoses the examiner noted “ROM loss traumatic arthritis left elbow.”   The 1 July 2003 MEB NARSUM, 6 months prior to separation and based on an MEB physical examination 16 January 2003, noted complaints of a left elbow injury, residual post-traumatic arthritis and limited ROM.  The CI reported pain in the elbow 100% of the time with sleep disturbance.  He frequently dropped objects in the left hand as a result of sharp pains with movement.  Physical examination showed the elbow was tender with ROM testing, which was quantified by orthopedics as 20 degrees to 120 degrees passively.  On physical examination, the CI had decreased ROM as a result of guarding from 30 to 45 degrees but this increased to 100 degrees of flexion when distracted.  He wore a brace on the left arm with the ROM set at 30 to 70 degrees, where he described initiation of pain.  

At a 29 July 2003 workers compensation evaluation, 5 months prior to separation, the CI reported “a lot of pain in the left elbow.”  On examination his left elbow appeared to be painful with ROM testing, but the ROM appeared to be intact and full.  The examiner concluded that “he had prior trauma to the left elbow…”  At a 14 October 2003 PM&R examination, 2 months prior to separation, the CI’s left elbow ROM was restricted because he wore a Bledsoe type brace on his left arm and his left elbow was noted to have some crepitus.  

At a 3 December 2004 VA orthopedic surgery clinic visit, 12 months after separation, the CI reported left elbow pain and could not push anything.  He developed numbness to the fourth and fifth fingers.  He also noted problems with popping and dropping things.  Physical examination showed a ROM of 0-140 degrees with full pronation/supination and no swelling or crepitus.  There was also diffuse tenderness.  X-rays showed a healed radial head fracture with mild compression and computerized tomography (CT) had the same impression.  There was no surgical indication at the time of the visit.  The CI was urged to remove the brace to gain the most strength he could.  At the 6 February 2005 VA Compensation and Pension orthopedic evaluation, 14 months after separation, the right hand dominant CI reported joint pain of several joints including the left elbow from a previous fracture of the left radius in 1998.  ROM of the left forearm flexion was 0-145 degrees.  The VA Rating Decision (VARD), dated 3 November 2005, noted an MRI in January 2005 that showed no evidence of any abnormal signs seen in the marrow and no obvious fracture; the radial head appeared intact; and the bones were in alignment with no abnormalities seen in the muscles and ligaments.  A small amount of joint fluid was seen.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left (non-dominant) elbow condition 10%, coded 5010 (traumatic arthritis).  The VA determined the left elbow condition was not service-connected.  Members discussed whether the CI warranted a higher rating at the time of separation.  Code 5206 (forearm, limitation of flexion) requires flexion limited to at least 90 degrees for a 20% rating, while code 5207 (forearm, limitation of extension) requires extension limited to at least 75 degrees for a 20% rating.  Examinations prior to separation recorded flexion of 120 degrees and extension of 20 degrees, albeit one examination noted the ROM was based on passive motion rather than active motion with guarding from 30-45 degrees and with distraction to 100 degrees.  At the VA examination 12 months post-separation the CI had full ROM with diffuse tenderness.  In the absence of elbow ankylosis (code 5205), forearm flexion limited to 100 degrees and extension to 45 degrees (code 5208), elbow, other impairment of flail joint (code 5209), radius and ulna, nonunion with flail false joint (code 5210), ulna impairment (code 5211), radius impairment (nonunion or malunion) (code 5212) or supination or pronation impairment (code 5213), there was no route to a higher rating.
 
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left elbow condition.
  
Contended PEB Conditions:  Chronic Pain and Instability Right Shoulder with Associated Headaches.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions existed prior to service and were not permanently aggravated by service.  The CI reported right shoulder soreness originally in 1996 as part of a general medical examination for the Persian Gulf registry.  On 24 February 1997 the CI was evaluated for joint pain over the right shoulder.  He had full ROM for both shoulders with minimal crepitus in the right bicipital tendon area.  X-rays of the right shoulder dated 24 February 1997 demonstrated no bone or joint abnormality present.  An MRI of the right shoulder dated 20 June 1997 showed no evidence of a rotator cuff tear, but there was a thickened glenohumeral joint, minimal effusion, and anterior down-sloping that was impinging significantly on the supraspinatus.  On 26 November 1998 the CI, as part of his civilian job, was surveying a refinery and while climbing down a reactor tower lost his footing and reached around to grab the ladder to stop his fall, thereby suffering an injury to his right arm with significant pain in the right shoulder.  Non-surgical therapy was not successful, and he underwent an arthroscopic anterior-inferior glenohumeral reconstruction on 29 February 1999.  Postoperatively, he had chronic pain of the right shoulder with right trapezius spasm and an electrodiagnostic test in August 1999 showed mild suprascapular nerve injury.  On 2 November 1999 the CI complained of right arm pain and numbness in digits two, three, four and five; however, the CI had not attended physical therapy as recommended.  On examination he had shoulder impingement weakly positive on the right as well as pain and tenderness of the right trapezius and right rhomboid.  Neurologically he was intact.  The CI noted in his DD 294 addendum that on 6 November 1999 he was ordered to weapons requalify (M16A2) and cited 19991106 DA Form 3595, Record Fire Scorecard as evidence of participation and qualifying as a sharpshooter.  A subsequent clinical note dated 10 November 1999 indicated the CI had right shoulder impingement; his prognosis was guarded; and he was not recommended to run, walk, or do push-ups or sit-ups; however, there was no mention or reference to the weapons qualification event or any complaints related to it.  Electrodiagnostic testing on 4 April 2000 showed significant improvement and no evidence for right suprascapular neuropathy.  Computerized tomography (CT scan) of the brain without contrast was normal on 26 January 2002, but in March 2002 the CI did have some occasional headaches associated with shoulder pain.  A note dated 30 July 2002 indicated the injury was civilian job related.  The 1 July 2003 MEB NARSUM, 2 months prior to separation, the CI reported falling from a ladder in 1998 while in a civilian status, resulting in a recurrent dislocation and unstable right shoulder without improvement from arthroscopic reconstruction in February 1999.  He also reported prostrating headaches on a weekly basis as a result of his right shoulder pain and muscle spasms in the neck area secondary to the shoulder pain.  The examiner’s diagnoses were right shoulder instability, pain and decreased ROM, not incurred while on active duty with pain moderate and constant and prostrating headache secondary to the right shoulder condition.  A physical medicine note dated 14 October 2003 indicated the CI’s “right shoulder pain, unstable right shoulder, and right ulnar nerve injury as well as the depression with anxiety [were] the result of his [civilian] work-related injury in 1998.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB did not rate the right shoulder and headache conditions, citing “compelling evidence to support a finding that the current condition existed prior to service (EPTS) and was not permanently aggravated by such service.   Soldier injured his shoulder in a fall, unrelated to military service.”  The VA determined the right shoulder condition was not service-connected, citing no medical evidence of record showing the condition was related to military service.  The panel also noted that the PEB combined the EPTS right shoulder condition and EPTS headaches under code 5099-5003.  The evidence for the right shoulder and associated headache conditions was presented together above.  In this case, both conditions were profiled and both conditions were listed on the NARSUM dated 1 July 2003; however, the commander’s statement only mentioned the right arm injury.  Members agreed that the right shoulder was separately unfitting, but there was insufficient evidence to support a finding that the headaches, which were evidently related to the right shoulder condition, were separately and independently unfitting.  Regardless, the PEB determined both conditions to have existed prior to service.

The panel noted that although there was evidence of right shoulder pathology from a previous tour of active duty, radiographic studies at the time were normal and the CI was not separated from active duty for reasons of disability.  The CI significantly injured his right shoulder on 26 November 1998, which required surgical intervention in February 1999.  The CI contended that he subsequently aggravated his right shoulder condition on 6 November 1999 during weapons qualification.  However, there was no LOD investigation conducted for any injury that may have been sustained during the rifle qualification event that was accomplished during Reserve inactive duty training (Drill weekend).  Furthermore, although allegedly “ordered” to qualify, there was no record that the CI contacted a medic or medical officer prior to the event to indicate he had a preexisting shoulder condition nor was there any entry in the STR from a medic, medical officer, physician or surgeon that addressed, commented on, or alluded to any injury or worsening of the right shoulder as a result, directly or indirectly related to the event.  While on the surface it appears that the rifle qualification event may have been suggestive of evidence of service aggravation, there was no objective medical evidence to support that contention.  Furthermore, whereas at the visit after the event, impingement was noted, it was not inconsistent with the impingement noted just prior to the qualification event.  Furthermore, 4 months later, electrodiagnostic testing on 4 April 2000 showed significant improvement and no evidence for right suprascapular neuropathy, which implies that there was no permanent service aggravation.  The CI, having received a prior LOD for his left elbow, would have been well aware of his duty to give notice to his command to have one issued.   Furthermore, in an email dated 29 January 2003, the CI acknowledged that “the military examined [his] Line of Duty Left Elbow injury,” but the CI was silent in regards to the right shoulder.  Of interest the Texas Physical Evaluation Board (PEB) Fact Sheet indicated: “To receive compensation, the injury or disease must be determined to be in LINE OF DUTY.”  Therefore, while the CI had right shoulder pain, which was prior to the fall as a civilian, the injury sustained to the right shoulder in that fall while a civilian was the proximate cause of his ultimate separation from the service.  There was no documented objective medical evidence of any aggravation, let alone permanent service aggravation.  

The panel found no evidence that the PEB’s finding to indicate the right shoulder condition with associated headaches existed prior to service was not correct.  The CI’s contention of service aggravation could not be verified by any supporting documentation submitted by the CI, in the STR, or from VA examinations proximate to separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right shoulder and associated headaches conditions.  

Contended PEB Condition:  Mood Disorder.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement or judged to fail retention standards.  The panel notes that according to the CI’s Reserve retirement points statement, the last day he performed military duty was on 17 December 2000.  At a psychiatric evaluation on 11 December 2002 it was noted that the CI underwent psychiatric care for depression related to pain from the right shoulder and left elbow injuries.  As pain was controlled with narcotics, depression initially improved, but then persisted, eventually abating when combined anti-depressant therapy was provided.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the mood disorder condition; and so no, additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the left elbow condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the chronic pain and instability right shoulder condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended associated headaches condition and IAW VASRD §4.124a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended mood disorder, the panel unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

The panel, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20151208, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170013333, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.

Sincerely,					      
						      					
Enclosure