RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00817
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20040831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Fire Support Specialist, medically separated for “unstable right shoulder” with a disability rating of 20%.

CI CONTENTION:  Additional unfitting conditions were not considered.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040713	VARD - 20041102	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Unstable Right Shoulder…	5202	20%	Residuals Right Shoulder Injury, Status Post Inferior Capsular Shift Surgery	5202	30%	20040901	
Posttraumatic Stress Disorder	Not Unfitting	Posttraumatic Stress Disorder with Major Depressive Disorder	9411	30%	STR	
Major Depressive Disorder	Not Unfitting					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:

Right Shoulder.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right-hand dominant CI underwent right shoulder surgery in April 2002 for frequent recurrent dislocations and subluxations.  In September 2003 he had a right shoulder dislocation while weight lifting, which the CI reduced (reinserted) himself, and subsequently had recurrent subluxations (partial or temporary pop outs).  The CI elected activity restriction rather than additional surgery.

At the 2 June 2004 MEB orthopedic consult evaluation, 3 months prior to separation, the CI complained of right shoulder pain with recurrent episodes of instability; especially with overhead activities.  Physical examination showed normal right arm strength, reflexes, and neurovascular findings.  Range of motion (ROM) was forward flexion to 165 degrees (normal 180) and abduction to 140 degrees (normal 180); painful motion was noted with overhead use.  There was pain to palpation over the anterior/posterior aspects of the right shoulder, a positive apprehension sign with overhead use, and a positive sulcus sign.  There were three positive right shoulder instability tests:  the Job relocation test, a positive load shift which was recurrent and 2+, and a Lachman's test.

During the 21 June 2004 MEB NARSUM evaluation, 2 months prior to separation, the CI complained of right shoulder pain and instability, and experienced subluxations of the right shoulder once or twice a week with trivial activities of daily living; such as rolling over in bed, lifting his children, or pushing or pulling items.  Physical examination showed evidence of right shoulder instability.  External rotation was 60 degrees, marked by apprehension (sign of instability); forward elevation and lateral abduction were marked by a shift (also a sign of instability) at approximately 120 degrees.

At the 1 September 2004 VA Compensation and Pension (C&P) examination, 1 day after separation, the CI reported he could move his shoulder, but was advised not to lift more than 25 pounds.  Shoulder pain was present daily and he could easily aggravate the shoulder one to seven times a month, which restricted his activities and he had to be careful in order to avoid dislocations.  Physical examination showed no shoulder tenderness.  ROM was flexion to 135 degrees and abduction to 170 degrees.  There was weakness (4-/5) with diffuse shoulder pain.  There was no evidence of any subluxation or dislocation, but because of the laxity a mild to moderate shoulder instability was noted.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition 20% coded 5202 (humerus, other impairment), citing infrequent dislocation/subluxation with restricted shoulder motion, positive instability Lachman and Load Shift tests.  The VA rated the right shoulder condition 30% also coded 5202 code, based on the C&P evaluation 1 day after separation, citing recurrent and frequent dislocations with guarding of all arm movements.  The panel deliberated if the CI’s right shoulder disability picture was closer to the code 5202 30% criteria of “with frequent episodes and guarding of all arm movements;” or the 20% criteria of “with infrequent episodes, and guarding of movement only at shoulder level.”  Although the CI did not have examination findings of guarding of all arm movements, the preponderance of the CI’s medical history indicated voluntary restrictions of right arm use with subluxation with even “trivial” activity.  The CI’s right shoulder dislocations were self-reducible (making subluxation versus dislocation distinctions problematic) and he had frequent shoulder subluxations or dislocations without significant stresses as noted on all examinations proximate to separation.

Panel members agreed that a 30% rating was justified for recurrent episodes of frequent dislocation of the right humerus and guarding of all arm movements (code 5202).  The ROM examinations demonstrated motion approximating shoulder level which did not support a higher rating under diagnostic code 5201 (arm limitation of motion).  There was no higher rating available under the 5203 code (clavicle or scapula, impairment).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the right shoulder condition, coded 5202.

Contended PEB Conditions: Posttraumatic Stress Disorder and Major Depressive Disorder.  The panel’s main charge is to assess the fairness of the PEB’s determination that post-traumatic stress disorder (PTSD) and major depressive disorder (MDD) were not unfitting.  The 17 June 2004 psychiatric MEB consult diagnosed both PTSD and MDD as well as recent increased regular use of alcohol; however, the psychiatrist indicated that the CI was just starting treatment and that the CI’s overall prognosis was reasonably good.  The psychiatrist stated:  “In my opinion, (the CI’s) psychiatric condition is not unfitting for military duty and is not a boardable condition.  Although the conditions are relatively significant, he is just starting treatment and thus I would not initiate a MEB for psychiatric reasons at this time.” No mental health conditions were profiled, implicated in the commander’s statement, nor judged to fail retention standards.  There was no performance-based evidence from the record that any mental health 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 conditions and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the right shoulder condition, the panel unanimously recommends a disability rating of 30%, coded 5202 IAW VASRD §4.71a.  In the matter of the contended post-traumatic stress disorder and major depressive disorder conditions, 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; 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	
Unstable Right Shoulder	5202	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160914, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180005747, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize 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 and record of proceedings for your information.

	The re-characterization 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure