RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01523
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20040808

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “bilateral shoulder pain” with a disability rating of 0%.

CI CONTENTION:  Post-separation worsening of his service connected disabilities.    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 it reasonably reflects the severity of the disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040514	VARD - 20050331	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Shoulder Pain	5099-5003	0% 	Recurrent Right Shoulder Dislocation	5202	20%	20041204	
			Left Shoulder Directional Instability or Mild Apprehension	5202	NSC	20041204	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20% 	

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 0% 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 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.  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 the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right shoulder condition began in 2001 after throwing a hand-grenade.  He experienced right shoulder dislocations in 2002 during sports and combatives.  In 2003 while deployed, he experienced several dislocations and one required closed reduction with sedation following a traumatic injury when he was struck by a bus.  The CI’s left shoulder condition began without specific injury during the same time period as the right shoulder dislocations.  Radiographic studies were negative for the right shoulder and absent for the left shoulder. 

The 10 December 2003 Army profile, 8 months before separation, listed duty limitations for bilateral shoulder instability, including no airborne operations, push-ups, rucksack, load bearing equipment, or overhead work.  The 20 January 2004 commander’s statement, 7 months before separation, did not specifically mention either shoulder, but referenced the CI’s profile limitations.  At the 20 February 2004 physical therapy ROM evaluation, 6 months prior to separation, bilateral shoulder abduction (after repetition) was 180 degrees.  There was no pain in either arm reported with ROM testing.  The examiner did not report ROM measurements for shoulder flexion of either arm.  

During the 26 February 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI was noted to have mild tenderness about the right shoulder and minimal tenderness of the left.  There was a positive apprehension sign (suggests instability) on the right and negative on the left.  There was normal strength and ROM of both shoulders.  Painful motion was not reported for either arm.  The 9 March 2004 MEB NARSUM examination, 5 months before separation, noted complaints of bilateral shoulder instability.  The physical examination cited the findings of the MEB Form 2808 examination summarized above.  

At the 21 March 2004 emergency department visit, 5 months prior to separation, the CI reported he was unable to move his right arm when he woke up, but then felt a “pop” and was able to move it again.  He reported right shoulder pain, graded 7/10 that radiated down his arm with numbness to his hand.  On examination of the right arm there was “decreased” ROM of the right arm due to pain (actual ROM measurements were not provided).  There was a positive apprehension sign and no neurologic abnormality.  The left shoulder was not discussed.  

At the 4 December 2004 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported “constant apprehension regarding his right shoulder” and indicated that 2 days earlier he self-reduced a right shoulder dislocation after approximately 30 minutes of dislocation.  He reported he was unable to throw or lift heavy objects “above his head because of the apprehension and pain in the right shoulder.”  Regarding his left shoulder, the CI denied dislocations, but did feel some laxity in the left shoulder and some apprehension with lifting activities.  Physical examination showed the CI holding the right shoulder in an “adducted and internal rotated position supporting the right elbow with his left hand.”  Shoulder ROM testing revealed 180 degrees of flexion and abduction bilaterally.  He had “some discomfort” right worse than left with full external rotation of the shoulders.  There was a severe positive apprehension sign on the right and mild positive apprehension sign on the left.  Regarding the left shoulder, the VA examiner indicated there was no history of dislocations or trauma and the CI currently had “limited if any functional disability” and any left shoulder symptoms were likely related to underlying multidirectional instability and not related to military activities.  

The panel directed attention to its recommendation based on the above evidence.  The panel first considered if the right and left shoulder conditions, having been decoupled form the combined rating, remained separately unfitting as elaborated above.  Both shoulders were listed on the permanent profile, implicated by the commander’s statement, and judged to fail retention standards.  The panel concluded there was not a preponderance of evidence in the service records which overcame the presumption that each of the shoulders were reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting right and left shoulders at the time of separation.
 
The PEB assigned a 0% rating for the bilateral shoulders coded 5099-5003 (analogous to degenerative arthritis), citing the USAPDA pain policy.  The VA assigned a 20% rating for the right shoulder coded 5202 (humerus, other impairment) for recurrent dislocations with guarding of arm movements.  The VA did not rate the left shoulder, but rather indicated it was not service-connected.

In regards to the rating of the right shoulder, panel members agreed a 20% rating was justified under the 5202 code for recurrent episodes of infrequent dislocation of the humerus and guarding of movement only at shoulder level.  There was no evidence of malunion, deformity or frequent dislocations of the humerus with guarding of “all arm movements” to warrant a higher rating under 5202.  There was no limitation of motion of the shoulder sufficient to support a higher rating under diagnostic code 5201 (limitation of arm motion).  There were no higher ratings available under the 5203 code (clavicle or scapula, impairment of).  There was therefore no higher rating available with any applicable VASRD code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the right shoulder condition.  

In regards to the rating of the left shoulder, there was no malunion, deformity, or recurrent dislocation of the humerus documented to justify a rating under the 5202 code.  There was no evidence of limitation of motion of the shoulder to support a rating under diagnostic code 5201 (arm, limitation of motion of).  None of the examinations proximate to separation documented  findings such as swelling, muscle spasm, satisfactory evidence of painful motion or other evidence of functional loss to support greater than a 0% rating IAW VASRD §4.59, §4.40 or §4.45.  There was no nonunion or malunion of the clavicle or scapula to warrant any rating under the 5203 code (clavicle or scapula, impairment of).  There was therefore no higher than a 0% rating available for the left shoulder condition under any applicable VASRD code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 0% for the left shoulder condition, coded 5202.  

BOARD FINDINGS:  In the matter of the bilateral shoulder pain condition, the panel unanimously recommends a disability rating as follows: an unfitting right shoulder condition rated 20% and an unfitting left shoulder condition rated 0%, both coded 5202 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	
Right Shoulder Instability	5202	20%	
Left Shoulder Instability	5202	0%	
COMBINED 	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161010, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180001644, 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