RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  pd-2016-00992
BRANCH OF SERVICE:  army	SEPARATION DATE:  20040729

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

CI CONTENTION:  The CI made no specific contention.  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 - 20040408	VARD - 20040812	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Left Ankle and Right Shoulder	5099-5003	10%	Status Post Humeral Fracture with Residual Right Shoulder Strain	5203	10%	20040528	
			Status Post Left Ankle Surgery with Residuals of Posttraumatic Degenerative Changes and Scar	5010-5271	10%	20040528	
	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Pain Left Ankle and Right Shoulder.  The PEB combined the left ankle and right shoulder conditions as a single unfitting condition coded analogously to 5003 (degenerative arthritis) and rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  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 two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore 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.  

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI sustained a fracture of the distal left fibula (lower leg) and a slightly comminuted spiral fracture of the proximal right humeral shaft (upper arm) as a result of a motorcycle accident in March 2003.  He underwent an open reduction and internal fixation (ORIF) surgery of the distal fibula on 12 March 2003.  The right shoulder (dominant) was treated conservatively until 6 February 2004 when the CI underwent shoulder surgery.  Following these surgeries the CI continued to have ankle and shoulder pain.  

At the 17 December 2003 Podiatry clinic appointment, the CI reported increased pain in his left ankle with prolonged ambulation and standing.  There was mild edema to the lateral aspect of the ankle.  There was pain on palpation and pain on range of motion (ROM), but no measurements were provided.  The 26 February 2004 MEB NARSUM addendum examination, 20 days after surgery and 5 months prior to separation, evaluated the right shoulder.  ROM was flexion to approximately 95 degrees (normal 180) and abduction to approximately 95 degrees (normal 180).  There was no tenderness to palpation.  

The 27 February 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of left ankle pain in conjunction with right shoulder pain secondary to a motorcycle accident.  The CI had moderate pain present between one-half and three-fourths of the time he was awake.  The pain limited activities to include lifting artillery rounds or armor plates required for vehicle maintenance due to his shoulder pain.  The CI also reported he was unable to enter/exit his combat vehicle due to the need to jump.  He was unable to run or stand for prolonged periods of time due to his ankle condition.  Physical examination showed pain on palpation and ROM of the left ankle and the plate was prominent on palpation.  No actual ROM measurements were provided.  

During the 1 March 2004 MEB examination (recorded on DD Forms 2807 and 2808), 5 months prior to separation, the CI reported the fractures and surgeries for the ankle and shoulder.  Physical examination of the left ankle showed decreased ROM and normal strength.  There was deformity at the right shoulder acromioclavicular joint with decreased ROM, crepitus, and decreased strength.  At the 18 March 2004 orthopedic clinic appointment for the right shoulder, 4 months prior to separation, ROM was flexion of 170 degrees (normal 180) and abduction of 110 degrees (normal 180).  Pain was noted to have improved but still affected functions.  

At the 28 May 2004 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported constant dull aching pain in his left ankle and right shoulder.  Physical examination showed gait was within normal limits.  The right shoulder ROM showed flexion of 100 degrees (normal 180 degrees) and abduction of 100 degrees (normal 180 degrees).  The examiner reported the ROM was additionally limited by pain, but did not specify the extent of the additional limitation.  The right shoulder joint's general appearance was within normal limits.  The left ankle ROM was dorsiflexion of 12 degrees (normal 20 degrees) and plantar flexion of 45 degrees (normal 45 degrees) with pain at the limit of the ROMs.  X-rays noted arthritic changes.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the left ankle with the right shoulder conditions and applied a single 10% rating, coded 5099-5003, citing application of the USAPDA pain policy.  The VA rated the right humeral fracture 10%, coded 5203 (clavicle or scapula impairment of), based on the C&P examination 2 months before separation, citing pain on motion and motion not limited to no more than shoulder height.  The VA rated the left ankle fracture 10%, coded 5010-5271 (arthritis due to trauma-ankle, limited motion of), citing moderate limited motion of the ankle due to pain.  

The panel first considered if the right shoulder condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The right shoulder was profiled U3.  The commander stated the CI was unable to perform requirements of his MOS due to the inability to handle artillery ammunition and gun section equipment, digging in equipment, building field fortifications and carrying heavy tents and camouflage nets.  All panel members agreed that the evidence reasonably justified that the functional limitations of the right shoulder condition contributed to the CI’s inability to perform his MOS and accordingly a separate disability rating is recommended.  

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).  The 20% rating for the dominant arm requires motion limited to “at shoulder level.”  The orthopedic ROM was abduction of 110 degrees and the VA ROM was 100 degrees, both above shoulder level.  However, panel members agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion).  There was no malunion with marked deformity or frequent episodes of recurrent dislocation of the humerus to justify a higher rating under the 5202 code (humerus, other impairment of), and no higher rating available under the 5203 code (clavicle or scapula, impairment of).  After due deliberation, and considering all of the evidence, the panel recommends a separately unfit determination with a disability rating of 10% for the right shoulder condition, coded 5099-5003.  

The panel next considered if the left ankle condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The left ankle was profiled L3.  The commander stated the CI was unable to perform requirements of his MOS due to the inability to emplace, fire and displace 155 mm self-propelled howitzers because he would be required to run over broken terrain often at night.  Duties also required mounting and dismounting howitzers and other tracked vehicles under tactical conditions and he was incapable of performing those requirements.  Panel members agreed that the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his MOS and accordingly a separate disability rating is recommended.  

The panel considered if the limitation of motion was moderate or marked when considered under 5271, limitation of ankle motion.  All panel members agreed the limitation of motion was no more than moderate, and/or with evidence of painful motion, therefore supporting the 10% rating.  A higher rating of 20% was not indicated in the absence of marked limited ROM of the ankle.  After due deliberation, and considering all of the evidence, the panel recommends a separately unfit determination with a disability rating of 10% for the left ankle condition, coded 5003-5271.  

BOARD FINDINGS:  In the matter of the “chronic pain, left ankle and right shoulder” condition, the panel unanimously recommends that each joint be separately adjudicated as follows:  an unfitting right shoulder condition coded 5099-5003 and rated 10%, and an unfitting left ankle condition, coded 5003-5271 and rated 10%, both IAW VASRD §4.71a.  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	
Right Shoulder Pain	5099-5003	10%	
Left Ankle Pain	5003-5271	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160920, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170018527, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

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

Sincerely,	
Enclosure