RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2016-01425
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040513

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard, E4, Indirect Fire Infantryman, medically separated for “chronic post-operative pain, right elbow and right shoulder” with a 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 - 20040426	VARD - 20050407	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Post-Operative Pain, Right Elbow and Right Shoulder 	5099-5003	10%	Residuals, Status Post (S/P) Ulnar Nerve Transposition, Right Elbow	8515	10%	20040928	
			S/P Arthroscopic Subacromial Decompression Right Shoulder	5203	10%	20040928	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Post-Operative Pain, Right Elbow and Right Shoulder.  The PEB combined the “postoperative right elbow pain, status post right ulnar nerve transposition and cubital tunnel release” and “right shoulder pain status post arthroscopic subacromial decompression and distal clavicle excision” MEB conditions under a single 10% disability rating, analogously coded 5099-5003 (degenerative arthritis) with application of the US Army Physical Disability Agency pain policy and AR 635-40 B24.f.  This 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 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 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 and Medical Evaluation Board (MEB) narrative summary (NARSUM), the right-handed CI’s right shoulder and elbow pain with hand numbness began in March 2003, after heavy lifting and tossing sandbags while deployed.  He was medically evacuated, and electrodiagnostic studies revealed right cubital tunnel syndrome (ulnar nerve at the elbow).  The CI underwent right ulnar transposition with cubital tunnel release surgery on 23 November 2003.  A 15 September 2003 MRI documented right shoulder acromioclavicular (AC) joint degenerative changes and he subsequently had right shoulder arthroscopic subacromial decompression and distal clavicle excision on 22 January 2004.  

The 10 April 2004 MEB NARSUM examination, 1 month prior to separation (6 weeks after shoulder surgery), noted complaints of right shoulder and right elbow postoperative pain, but improvement in previous right hand numbness.  Physical examination showed a well-healed right elbow scar, tenderness over the cubital tunnel, and mild Tinel’s signs (for nerve irritation) with intact sensation in the ulnar distribution.  Right elbow range of motion (ROM) was equivalent to the unaffected elbow (both with extension to 5 degrees, flexion to 130 degrees, pronation and supination to 80 degrees).  The right shoulder was tender anterolaterally and over the AC joint, but was stable, and there was some irritation with Hawkins and Neer testing (impingement signs, equivalent to painful motion).  Right shoulder ROM showed flexion and abduction to 180 degrees (normal), with slightly decreased internal rotation compared to the opposite side.  Formal PT ROMs documented painful right shoulder flexion to 160 degrees and abduction to 150 degrees; right elbow ROM was painful from -5 to 130 degrees.  

At the 24 and 28 September 2004 VA Compensation and Pension (C&P) evaluations, 4 months after separation, the CI reported intermittent right shoulder popping and aching with overhead reaching and material handling, as well as sensitivity along the right ulnar nerve transposition site.  Physical examination showed well-healed right shoulder and elbow scars, no right elbow effusion and normal ROM.  There was a positive Tinel's sign over the ulnar nerve with radiation into the ring and middle finger.  Elbow X-rays were negative.  Right shoulder examination showed flexion and abduction to 140 degrees.  There was mild pain to palpation over the AC joint, no instability, and intact right upper extremity strength and sensation.  The orthopedic surgeon indicated significant residual orthopedic disabilities in the right elbow and right shoulder and diagnosed “status post ulnar nerve transposition right elbow with residual Tinel's sign and ulnar nerve irritation and post-surgical right shoulder residual mild bursitis.”  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB rated the bundled “chronic post-operative pain, right elbow and right shoulder” condition 10%, coded 5099-5003, citing the US Army Physical Disability Agency pain policy.  The VA rated the right elbow condition 10%, coded 8515 (median nerve, incomplete paralysis), and the right shoulder condition 10%, coded 5203 (clavicle or scapula, impairment of), both based on the C&P examination 4 months after separation, citing ulnar nerve irritation/mild incomplete paralysis of hand movements, and malunion or nonunion of the clavicle or scapula, respectively.  

In this case, both the right shoulder and right elbow were considered to fail retention standards, both were implicated by the NARSUM and the commander’s statement, and both were profiled.  The panel members agreed the evidence reasonably justified that the functional limitations of both the right shoulder and right elbow conditions contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended for each.  

There was no compensable right elbow limitation of motion, however, there was satisfactory evidence of ulnar nerve irritation and painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  Since the X-rays were negative for degenerative changes and the underlying disability was due to a peripheral nerve with surgery, the panel agreed that coding analogous to ulnar neuritis (8616) was appropriate.  There was no compensable limitation of motion of the right shoulder, however, there was satisfactory evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  Given the surgery involved distal clavicle excision, panel members agreed that coding under 5203 was appropriate.  After due deliberation, and considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right elbow condition, coded 8699-8616; and 10% for the right shoulder condition, coded 5203.  

BOARD FINDINGS:  In the matter of the bundled right elbow and right shoulder pain conditions, the panel unanimously recommends that each joint/area be separately adjudicated as follows: an unfitting right elbow condition coded 8699-8616 and rated 10%, IAW VASRD §4.124a; and an unfitting right shoulder condition, coded 5203 and rated 10%, IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration. 

The panel recommends 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 Post-Operative Pain, Right Elbow	8699-8616	10%	
Chronic Post-Operative Pain, Right Shoulder	5203	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161001, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20180001588, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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