RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00292
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050812

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E4, Infantryman, medically separated for “chronic pain, right shoulder and left thigh”, with a disability rating of 20%.

CI CONTENTION:  “I do not believe my PTSD, TBI, or the retained foreign body in my left eye were correctly addressed when the Army decide to give a medical discharge rather than a medical retirement.  These issues are clearly a result of being hit with an IED while patrolling an alleyway in Baghdad.”  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 - 20050707	VARD – 20060109 and 20070707	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Shoulder and Left Thigh	5099-5003	20%	Residual Shrapnel Injury Left Thigh without Joint Involvement	5314	30%	20050913	
			Residuals Shrapnel Wound Right Neck and Shoulder Area	5301	10%	20050913	
Posttraumatic Stress Disorder	Not Unfitting	Post Traumatic Stress Disorder	9411	50%	20050915	
Right Eye Shrapnel Injury with Intraocular Lens Replacement	Not Unfitting	Left Eye Pseudophakia, with Corneal Scar, Post Laser for Removal of Floating Body Left Eye	6609	30%	20050913	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Pain, Right Shoulder.  The PEB combined the right shoulder and left thigh conditions as a single unfitting condition coded analogously to 5003 and rated 20% with application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  The panel’s recommendations, IAW DoDI 6040.44, must comport strictly with the VASRD criteria.  Thus conforming to separate ratings, the panel concluded that both conditions were de facto separately unfitting and thus rated as such.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right hand dominant CI’s chronic pain, right shoulder condition began in May 2004 after sustaining multiple shrapnel wounds while serving in Iraq.

During the 29 March 2005 MEB NARSUM examination, 4 months prior to separation, the CI complained of right shoulder pain.  He noted that he had shrapnel removal surgery and had spent some time on the inpatient unit with physical therapy aimed at improving his range of motion.  The CI reported he still had pain that was constant throughout the day, but he had not experienced weakness or instability of the shoulder joint.  Physical examination showed bilateral shoulders range of motion (ROM) flexion to 150 degrees (normal 180) and abduction of 150 degrees (normal 180).  The examiner opined that the measurements represented “full ROM.”  The CI had 5/5 strength in the shoulder muscles and there was no evidence of neurovascular compromise.  The surgical scar was tender to palpation and there was no evidence of infection or inflammation of the scar.  Radiographs taken the day before the MEB showed no bony injuries, healed soft tissue injury, and stability of the small metal fragments (retained shrapnel).  At the May 2005 MEB examination (recorded on DD Forms 2807 and 2808) dated 2 months prior to separation, the CI reported he had shoulder pain and numbness and tingling.  Physical examination of the left shoulder demonstrated tenderness to the superior aspect of the shoulder and “full range of motion”.  

At the 13 September 2005 VA Compensation and Pension (C&P) evaluation, 1 month after separation, the CI reported he had suffered soft tissue injuries of the shoulder without joint involvement.  He reported that the shoulder had healed but he continued to have pain near the area of the scar.  He had trouble carrying a strap backpack or carrying anything that put pressure over the area of the scar. Physical examination focused on the scar, which was described as tender, not involving the shoulder joint, “somewhat indurated and elevated” with no retraction or swelling or redness.  

The panel directed its attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the right shoulder condition with left thigh and applied a single 20% rating coded analogously as 5099-5003 citing the USAPDA pain policy.  The VA rated the right shoulder condition 10% coded 5301 (Group I. Function), based on the VA C&P examination 1 month after separation, citing moderate muscle disability.    

The panel proceeded with the rating recommendation for the shoulder pain condition.  In accordance with DoDI 6040.44, the panel is required to recommend a rating IAW the VASRD in effect at the time of separation.  Applicable diagnostic codes include: 5003 (degenerative arthritis) 5201 (limitation of arm motion); 5202, (humerus, other impairment), and 5203 (dislocation of clavicle or scapula).  The panel considered all of the applicable codes and was unable to find a pathway to a compensable rating.  However, the record sufficiently documented pain and functional loss (unable to carry a back pack), compensable under VARSD §4.59 and §4.40.  Thereupon, 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 right shoulder pain condition.

Chronic Pain, Left Thigh.  According to STR and the MEB NARSUM, the CI’s chronic pain, right shoulder and left thigh condition began in began in May 2004 after sustaining multiple shrapnel wounds while serving in Iraq.  

The 29 March 2005 MEB NARSUM examination 4 months prior to separation, noted the complaint of left thigh pain that limited the CI’s activities at work and as well as in his daily activities.  He denied weakness or instability of his joint.  Physical examination recorded the presence of a mid-lateral thigh scar with normal size thigh and intact skin.  There was tenderness to palpation with reported pain radiating to the left lower extremity.  Hip flexion was to 95 degrees and he had 20 degrees of extension, and internal and external rotation.  The examiner assessed left thigh pain secondary to left quadriceps soft tissue injury.  There was no documentation of motor weakness in the quadriceps (anterior thigh muscles (4) or other muscles of the leg.  The knee showed “full ROM’ and the right lower extremity had normal neurological and vascular function.  At the May 2005 MEB examination (recorded on DD Forms 2807 and 2808) 2 months prior to separation, the CI reported he had impaired use of his leg, but had no need of any supportive device and no joint pains in the lower extremity.   Physical examination showed full ROM in the knees and tenderness in the left mid-thigh.

At the 13 September 2005 VA C&P evaluation, 1 month after separation, the CI reported pain in the left thigh secondary to shrapnel injuries.  The CI noted that his knee joint was not affected.  Physical examination showed a normal gait.  Examination of the left thigh revealed a tender surgical scar with “approximately 2% loss of tissue beneath the scar where it is retracted.”  Evidence of infection or inflammation was absent.

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the left thigh with the right shoulder condition applied a single 20% rating coded analogously as 5099-5003 citing the USAPDA pain policy.  The VA rated the left thigh condition 30% coded 5314 (Group XIV. Function), based on the VA C&P examination 1 month after separation, citing the condition as a moderately severe muscle injury.  

The panel proceeded with the rating recommendation for the shoulder pain condition.  Applicable diagnostic codes include: 5003 (degenerative arthritis) 5252, 5253 (both limitation of thigh motion), 5255 (impairment of femur), and 5314 (Group XIV function).  

The panel considered all of the applicable ROM codes and was unable to find a pathway to a compensable rating.  However, the record sufficiently documented pain with functional loss, compensable under VARSD §4.59 and §4.40 for a 10% rating.  The panel then considered if a higher rating was possible under the muscle code.  A higher rating under the 5314 code requires documented evidence that the condition demonstrated impaired muscle function of moderately severity.   Moderately severe disability IAW VARSD §4.56 (evaluation of muscle disabilities) requires that there be evidence that considers cardinal signs of muscle damage (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement), objective findings (loss of deep fascia, muscle substance, tests of strength and endurance compared with sound side demonstrate positive evidence of impairment), and history and complaint consistent with the description set forth in 4.56.  The panel agreed the threshold for the 30% rating was not approach.  There were no additional codes to consider.  

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 thigh pain condition.

Although the panel concluded that the right shoulder and left thigh conditions were separately unfit, neither were ratable above 10%.  To unbundle and rate each condition separately offers no advantage to CI in this case.  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 left thigh conditions.

Contended PEB Conditions:  Posttraumatic Stress Disorder and Left Eye Injury.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Both conditions were profiled with a ‘2’.  The PTSD was not implicated in the commander’s statement but the CI’s eye injury was.  Neither were judged to fail retention standards.  Although the CS mentioned the eye, it was noted that the CI was unable to perform duties such as lifting heavy equipment, walk for long periods of time, or perform any strenuous activities.  The STR noted the CI’s corrected visual acuity was 20/30 in the left eye, and case management notes during the months prior to separation made no mention of eye problems interfering with occupational functioning.  Panel members concluded there was not a preponderance of evidence that, the eye 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 any of the contended conditions and so no additional disability ratings are recommended.   

BOARD FINDINGS: In the matter of the right shoulder pain and left thigh pain conditions and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended PTSD and left eye injury conditions, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’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 20160513, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014152, 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