RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00820
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040501

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Military Police, medically separated for “chronic pain and instability right shoulder” with a disability rating of 10%.

CI CONTENTION:  She is still having shoulder issues.  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 - 20040302	VARD - 20050311	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain and Instability, Right Shoulder…	5099-5003	10%	Right Shoulder Instability	5299-5203	10%	20050124	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Pain and Instability, Right Shoulder.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the right-hand dominant CI’s right shoulder condition began in October 2002 after she attempted to push a 20-25 pound bag into a truck and felt her shoulder pop out of position.  She was able to reduce it herself, and continued to have subluxation and pain in the shoulder.  Magnetic resonance imaging on 6 January 2003 was reported to demonstrate no rotator cuff or labral tear, but showed degenerative changes and prominence of the acromioclavicular joint.  However, an orthopedic surgeon felt it demonstrated what appeared to be a partial thickness cuff tear with some increased fluid signal around the biceps tendon and no labral tear.  At the 2 February 2003 Physical Therapy evaluation, 15 months before separation, the range of motion (ROM) was flexion to 155 degrees (normal 180) and abduction 150 degrees (normal 180) with painful motion.  The CI underwent right shoulder arthroscopy with a thermal capsuloraphy (tighten a loose shoulder) and a rotator cuff interval closure in April 2003.  In June 2003 the CI’s ROM was 0-170 for both flexion and abduction, while in August 2003 the ROMs were flexion 150 degrees and abduction 170 degrees.  In follow-up examinations the CI was diagnosed with biceps tendonitis.  The CI underwent a second arthroscopy and anterior capsuloraphy (to correct anterior shoulder instability) on 3 November 2003, 6 months before separation.  Five weeks postoperatively the CI had about 110 degrees of abduction and forward flexion.  

The 8 January 2004 MEB NARSUM Addendum examination, 4 months before separation, noted right shoulder pain with some improved stability post-surgery, but the CI was still not able to lift strenuously with arm.  Physical examination showed ROM of full-overhead flexion and abduction with painful motion 2 months after surgery. She still had a mild 1+ sulcus sign and what seemed to be a 2 quadrant anterior and posterior glide.  The examiner did not feel the CI would be able to withstand full activity and heavy lifting as an occupation.  During the 5 February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported surgeries on the right shoulder and constant pain in the shoulder.  Physical examination showed pain of the right shoulder on abduction to about 90 degrees and flexion to about 90 degrees.  The 5 February 2004 MEB NARSUM examination, 3 months before separation, noted complaints of continuous right shoulder pain.  Physical examination revealed normal upper extremity motor strength, no sensory abnormality, and abduction ROM with pain at approximately 90 degrees.  The examiner referenced the aforementioned physical therapy ROM examination performed 15 months before separation when flexion was 155 degrees and abduction was 150 degrees, both with pain. The examiner’s diagnosis was chronic right shoulder instability.

At the 17 February 2004 physical therapy evaluation, also 3 months before separation, noted mild impingement signs.  Three months after surgery ROM flexion was to 170 degrees and abduction to 180 degrees with painful motion and mild impingement signs.  The examiner opined the CI “will continue to progress towards functional activities as well as emphasis on scapular stabilization exercises and rotator cuff strengthening.”  The CI received an injection in the bicipital groove to treat bicipital tendonitis on 25 February 2004 and a possible biceps release procedure was discussed.  On 12 April 2004 the CI underwent an arthroscopy and limited open biceps tenodesis (detaching the long head of the biceps and reattaching it to the humerus) to resolve the biceps tendonitis.  

At the 24 August 2004 VA Compensation and Pension (C&P) examination, less than 4 months after separation, the CI reported periodic sharp pains in the right shoulder and crepitation with the ROM.  On examination the ROM of the right shoulder was normal, but there was some instability and tearing in the posterior and anterior areas.  There was some weakened motion in the right shoulder against moderate resistance.  The examiner’s diagnosis was “[I]nstability of right shoulder, condition after 3 operations of right shoulder.”  X-rays in August 2004 showed slight widening of the right acromioclavicular joint.  At the 24 January 2005 VA C&P examination 9 months after separation, the CI reported periodic sharp pain with ROM with crepitus (grinding).  The ROM for flexion was to 160 degrees.  The examiner opined the shoulder could dislocate at this level.  Abduction was 90 degrees as the CI was afraid to go higher because of dislocation.  External rotation is 90 degrees, and she felt at this point that it could dislocate.  There was no additional loss of motion with repetitive movement.  The examiner’s diagnosis was instability of right shoulder and chronic pain.  X-rays of the right shoulder were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder 10%, analogously coded 5099-5003 (degenerative arthritis), citing slight/constant pain.  The VA also rated the right shoulder 10%, analogously coded 5299-5203, (clavicle or scapular, impairment), based on the C&P examination 9 months after separation, citing malunion or nonunion of the clavicle or scapula.

The VASRD §4.71a threshold for rating for ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the physical therapy and VA examinations in evidence demonstrated motion above this level for flexion; however abduction was 90 degrees at the VA C&P examination 9 months post-separation.  From a probative value standpoint, the VA examination 9 months from separation was further than the physical therapy examination 3 months before separation.  Therefore, despite the decrement of abduction at 90 degrees recorded at the VA examination, there was no evidence of an accident or injury to explain its presence; however, the CI did undergo an additional surgery (open biceps tenodesis) 2 months after the physical therapy examination, but 7 months before the VA examination.  A majority of members found the physical therapy examination warrants a higher probative value.   Although there was no limitation of motion to support a rating under the 5201 code proximate to separation based on the physical therapy examination 3 months before separation, the panel agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion).  There was no subluxation or dislocation documented in the STR or VA examinations proximate to separation, albeit the initial surgery was performed for subluxation/instability.  There was no malunion or recurrent dislocation of the humerus to justify a rating under the 5202 code (humerus, other impairment), although both the NARSUM and VA examiners’ diagnosis was instability of the right shoulder; and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating 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 majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right shoulder condition.

BOARD FINDINGS:  In the matter of the chronic pain and instability, right shoulder condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the panel’s scope of review for consideration. Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160913, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion.  The minority voter recommends a 20% rating for the CI’s chronic pain and instability, right shoulder based on the indisputable facts that the CI underwent surgery for subluxation of the right shoulder in November 2003 and a second surgical procedure in November 2003 again to address instability of the right shoulder.  However, the CI had a third surgery just proximate to separation for which there no postoperative details, but for subsequent VA examinations within 9 months of separation.  So the question is did the PEB get it right at the time of separation.  The simple answer is no since it adjudicated the CI’s condition with the evidence it had at the time of its convening and it did not and could not account for the surgery performed just prior to separation.  However, the PEB did get it right that the CI had pain and instability of the right shoulder, but it failed to address the ROMs reported at the MEB examination on DD Form 2808, which noted painful flexion 90 degrees and abduction 90 degrees.  Furthermore, the MEB NARSUM was vague in regard to the physical examination findings, which reported abduction ROM with pain at approximately 90 degrees, but was silent on any further ROM measurements except those of a prior remote physical therapy examination some 15 months prior to separation.  Therefore, to base a rating on incomplete measurements failed to afford the CI any benefit of doubt, but the PEB did rate according to painful motion, which captured only a portion of the CI’s disability.  

The question then is whether the VA rating was correct.  Like the PEB, the VA did not address the full measure of the CI’s disability, although both VA examiners noted instability.  However, the VA rated the CI’s condition using code 5203 (clavicle or scapula, impairment of) at 10% and indicated in the VA Rating of Disability (VARD) there was no dislocation.  However, the VA C&P examiner for the joints stated unequivocally “Range of motion of her right shoulder revealed forward flexion 160 degrees.  At this level her shoulder could dislocation.”  Furthermore, the examiner noted “Right should abduction:  She raised it to 90 degrees and was afraid to raise it more because she is afraid of dislocation.”  Once again the examiner noted “External rotation is 90 degrees, and she is feeling at this point that it could dislocate.”  Therefore, when the VA rated the CI’s condition using code 5203, it missed the point and the panel majority relied upon that rating as further evidence for a 10% rating.  However, the issue was not primarily with clavicle or scapula impairment, although X-rays in August 2004 showed slight widening of the right acromioclavicular joint.  Clearly the more accurate rating the CI’s shoulder instability comes with the use of code 5202 (humerus, other impairment of) and more specifically recurrent dislocation at the scapulohumeral joint with infrequent episodes, and guarding of movement only at the shoulder level, which warrants a 20% rating for the dominant right arm.  Majority members noted that the CI did not mention shoulder dislocation at the VA General Medical Examination; however, the examiner noted there was some instability of the right shoulder without being more specific.  More importantly, at the next VA examination, which was specific for joint conditions, the examiner stated not once, not twice, but three times that the CI was afraid or felt the right shoulder would dislocate during flexion, abduction, and external rotation.  Therefore there is no doubt that her original condition of subluxation persisted into the post-separation time frame and she had recurrent dislocation in the form of feeling the joint was about to sublux, thereby guarding her should to prevent a dislocation, which could invoke not only further pain, but affect the already tenuous surgical repairs and possibly cause more damage to the already impaired right shoulder.

For all the aforementioned reasons including decreased ROMs for flexion and abduction at the MEB examination, an incomplete MEB NARSUM examination that relied on remote physical therapy measurements, and subsequent VA examinations having more probative value than the several examinations prior to her third surgery, which demonstrated instability and ROMs just short of invoking dislocations in three separate planes of motion, the CI unquestionably warrants a 20% rating, coded 5202.

Therefore, the minority voter recommends the Board Findings be modified as follows:

In the matter of the chronic pain and instability, right shoulder condition, the panel recommends a disability rating of 20%, coded 5202 IAW VASRD §4.71a.

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	
Chronic Pain and Instability, Right Shoulder	5202	20%	

AR20180005749, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	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