RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00385
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Microwave Systems Operator Maintainer, medically separated for “bilateral shoulder pain” and “neck pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

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 - 20051031	VARD - 20070416	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Shoulder Pain	5099-5003	10%	Left Shoulder AC Separation	5299-5201	0%	STR	
			Right Shoulder AC Separation	5201	0%		
Neck Pain	5299-5237	0%	No VA Placement	
Low Back Pain	Not Unfitting 	Back Pain	5237	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Bilateral Shoulder Pain.  The PEB combined the right and left shoulder conditions under a single service disability rating, coded analogously to 5003 and rated 10%.  The 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 also noted that “bundling,” the combining of 2 or more major joints, may be permissible under the VASRD 5003 rating requirements, and this approach does not compromise the VASRD §4.7 directive to choose the higher of 2 valid ratings.  The panel’s initial charge in this case was directed at determining if the PEB’s approach of combining 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.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the right and left shoulder conditions are presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to STR and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the left-hand dominant CI injured his right shoulder in October 2003 after falling on his shoulder while playing flag football.  On the initial examination, he had full active range of motion (ROM) and no tenderness over the acromioclavicular joint (ACJ), the joint between the collarbone and the shoulder blade.  He subsequently injured his left shoulder in November 2003.  X-rays showed a grade II to III AC separation.  The CI was evaluated in orthopedics on 13 February 2004 and reported right greater than left shoulder pain.  X-rays showed a type II acromion (a congenital variant) and an ACJ separation.  On examination, the forward flexion was 170 degrees on the right and left with normal motor function.  The ACJ was clinically separated as well.  Abnormal motion of the shoulder blade was noted bilaterally.  He was referred to physical therapy an additional testing was done in anticipation of possible surgery.  In family practice on 15 June 2004 the ROM was full and strength normal.  Testing for impingement was negative.  The CI continued to have shoulder pain and was followed in orthopedics for possible surgery.  In orthopedics on 6 October 2004 flexion and abduction were 120 degrees bilaterally.  Signs of impingement were absent.  The ACJs were tender bilaterally.  He was seen again 2 weeks later and noted to meet retention standards.  Six weeks later though, he was issued a profile and referred for MEB.  In physical therapy on 25 May 2005, passive abduction was 135 degrees on the right and 130 degrees on the left (normal 180).  Passive abduction was 150 degrees on the right and 100 degrees on the left.  Motion was limited by pain.  

According to the 14 June 2005 MEB NARSUM evaluation, 6 months prior to separation, the CI complained of bilateral shoulder pain preventing him from performing push-ups, lifting objects greater than 30 pounds or fire an M-16 rifle.  The physical examination showed both shoulders to have full ROM without muscle atrophy.  Muscle strength and sensation were normal in both shoulders.  On the left, the shoulder was tender to palpation and exhibited marked distal clavicle motion consistent with a grade III ACJ separation.  On the right, the CI showed minimal tenderness at the ACJ.  A cross-over test was symptomatic on the left and minimally tender on the right, equivalent to painful motion.  There was no VA Compensation and Pension (C&P) examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating for the bilateral shoulders under an analogous 5003 code (degenerative arthritis), for involvement of two major joints.  The VA separated the shoulders, rating each 0% using the 5201 code (arm limitation of motion) for the right shoulder and an analogous 5201 code for the left shoulder, citing not being able to ascertain the severity of either shoulder as he had not yet had a C&P examination.  As noted above, there are no distinctions concerning clinical features or fitness considerations between the right and left shoulders.  It is reasonable to conclude that the effect of each shoulder reasonably rendered the CI unfit.  The panel then considered the rating.  There was no limitation of motion of the shoulder to support a rating under diagnostic code 5201 (arm, limitation of motion of).  In fact, the examination most proximate to separation, accomplished by a treating orthopedic surgeon, showed full ROM bilaterally.  There was no malunion, deformity, or recurrent dislocation of the humerus to justify a rating under the 5202 code (humerus, other impairment of); and no nonunion or malunion of the clavicle or scapula to warrant any rating under the 5203 code (clavicle or scapula, impairment of).  The NARSUM noted that the CI was limited in activity by pain.  Also painful motion was apparent on the physical therapy evaluation with passive ROM; and in the NARSUM, as evidenced by the positive cross arm tests, to support a 10% rating IAW VASRD §4.59, §4.40 or §4.45.  The bilateral diagnosis supported a single 5003 based rating for “2 or more major joints” without compensable limitations or painful motion; thus there is VASRD §4.71a latitude for a bilateral rating.  The panel majority agreed the evidence did not support recommending separate right and left shoulder disability ratings.  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 bilateral shoulder pain condition.  

Neck Pain.  The CI’s neck condition also began during a football game in 2003.  The 14 June 2005 MEB NARSUM examination noted complaints of continued neck pain.  The physical examination showed the CI had “fairly good range of motion” with tenderness to palpation of the mid cervical region noted.  There was no cervical muscle spasm noted.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck pain condition 0%, coded analogously to 5237 (cervical spine strain), citing normal ROM measurements and normal electro-diagnostic tests and neurologic examinations.  The VA did not identify a comparable condition.  There was no limitation of cervical spine motion to support a 10% rating under the General Rating Formula for Diseases and Injuries of the Spine and the MEB examination did not note the presence of painful motion, muscle spasm or guarding.  There was tenderness, which supported a 10% rating.  There was no history or evidence of vertebral body fracture with loss of 50 percent or more of the height, nor was there evidence of additional functional loss that would impact functioning in the average civil occupation.  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 neck condition.  

Contended PEB Conditions:  Low Back Pain (LBP).  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended LBP condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement, but was judged to fail retention standards.  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 contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the bilateral shoulder pain condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  In the matter of the neck pain condition, the panel unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended low back pain condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  The single voter for dissent submitted the appended minority opinion.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Bilateral Shoulder Pain	5099-5003	10%	
Neck Pain	5299-5237	10%	
COMBINED	20%	
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160606, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion PD-2016-00385

The panel minority agrees with the majority that the CI’s neck condition should have been rated at 10% under code 5299-5237, but disagrees with the majority regarding the 10% rating for the bilateral shoulders.  The objective evidence in the case file supports a 10% rating for each shoulder joint and the neck condition for a combined rating of 30%.  

The 6 October 2004 orthopedic examination showed that the CI had non-compensable limitation of motion of each shoulder, but there was evidence of painful motion in each shoulder from positive bilateral cross arm tests (regarded as equivalent to painful motion).  Subsequent orthopedic examinations on 20 October 2004 and 1 December 2004 showed no change in the above examination findings.  

The 6 May 2005 MEB examination (recorded on DD Form 2808) showed 170 degrees of flexion with tenderness (pain) and only 70 degrees of abduction, which warrants a 20% rating for arm limitation of motion at shoulder level.  The right shoulder showed mild AC joint crepitus tender (painful) “on ROM above 90 degree level.”  The 70 degree measurement was an outlier and was not consistent with other ROM examinations and holds little probative value. 

The 25 May 2005 physical therapy MEB ROM study for passive goniometric ROM showed that both of the CI’s shoulders were limited by pain.  Although the left shoulder abduction measurements was 100 degrees (at shoulder level) and would normally warrant a 20% rating, the fact that it was a passive ROM measurement decreased the probative value of the measurement, but not the evidence of painful motion.

The 14 June 2005 NARSUM examination, which was most proximate to separation and was conducted by an orthopedic surgeon, held the most probative value for rating despite the fact that the measurements were non-goniometric.  The examiner noted that the CI had good bilateral full ROM with no atrophy in the arms and normal strength.  However, crossover tests (equivalent to painful motion) for both shoulders were positive.

The conflicting ROM evidence in this case was problematic, but the thread of painful bilateral shoulder motion was consistent throughout the clinical history.  As state above, the NARSUM held the most probative value for rating even though the ROM measurements were not goniometric.  The NARSUM examination showed “good full ROM” of the bilateral shoulders with positive crossover tests (regarded as being equivalent to painful motion).  This is consistent with the clinical history of each shoulder showing that painful motion was present in almost all examinations.  Rating each shoulder joint under an analogous 5003 code is appropriate since there is objective evidence of periarticular pathology in each shoulder joint even though there was no X-ray evidence of arthritis.  The panel minority concedes that there was full, though non-goniometric, ROM in both shoulder joints, but notes that IAW §4.59 (painful motion) “the intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable or mal-aligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint.”  There is definitely evidence of periarticular pathology for each shoulder and there is consistent evidence of painful motion.  Therefore, the CI’s bilateral shoulders warrant the minimum rating of 10% for each shoulder joint coded 5099-5003.              

The panel minority accordingly 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	
Left Shoulder Pain	5099-5003	10%	
Right Shoulder Pain	5099-5003	10%	
Neck Pain	5299-5237	10%	
COMBINED	30%	

AR20170015455, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application recommended modification of your disability rating to reflect a combined rating of 20%.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion.  I reject the Board’s recommendation and I accept the Board’s minority opinion to recharacterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation, minority opinion and record of proceedings for your information.

	The recharacterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO) XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the counsel you listed on your application.

Sincerely,

Enclosure