RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME:  XXXXXXXXXXXXXXXXXXXXXX	CASE: PD-2017-01176
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20071107

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E2, Military Policeman, medically separated for “pain right shoulder (dominant)” with a disability rating of 0%.

CI CONTENTION: Review requested of the right shoulder condition and depressive disorder. 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 - 20070927	VARD - 20080415	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Pain	5099-5003	0%	Residuals of Surgical Repair, Right Shoulder	5299-5201	20%	20080205	
Depression	Not Unfitting	Major Depressive Disorder	9434	30%	20080205	
COMBINED RATING: 0%	COMBINED RATING OF ALL VA CONDITIONS: 40%	

ANALYSIS SUMMARY:

Right Shoulder Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered a right shoulder labral tear that required an arthroscopic repair in May 2006. After a reinjury, he had a second arthroscopic labral repair in February 2007 (8 months prior to separation). Follow-up X-rays demonstrated normal alignment and typical post-surgical changes. Provider entries in the STR after the second surgery documented no complications and improving range of motion (ROM). Measured ROM by physical therapy (PT) on 23 April 2007 showed forward flexion and abduction to 120 degrees each (normal 180 for

both), specifying painful motion. There was no evidence of instability, impingement or other VASRD-ratable findings.

The 28 August 2007 MEB NARSUM examination, 2 months prior to separation, documented nonspecific right shoulder pain that prohibited heavy lifting and multiple general soldiering requirements. Physical examination recorded no note of tenderness, deformity, instability or other positive joint findings. Forward flexion was to 110 degrees and abduction to 100 degrees, with pain at end ranges. Measured ROM by orthopedics on 26 September 2007, 1 month before separation, showed forward flexion and abduction to 180 degrees each, with painful motion.

At the 5 February 2008 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported “constant” right shoulder pain, rated at 4/10, that interfered with heavy lifting and raising the arm above shoulder level. There was no history of any interim injury or other exacerbation since separation, and the examiner found no deformity, tenderness, impingement or instability. Measured ROM revealed forward flexion to 120 degrees and abduction to 100 degrees, with pain at end ranges. The examiner additionally stated, “Repetitive movements are limited because of pain (about 10 degrees).”

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the right shoulder condition 0%, coded 5099-5003 (analogous to degenerative arthritis), citing criteria of the US Army Physical Disability Agency pain policy. The VA rated the condition 20%, coded 5299-5201 (analogous to limitation of arm motion), based on the C&P examination and citing “motion is limited at shoulder level” (presumptively conceding a 10% DeLuca deduction referencing the examiner’s 10-degree estimate). Panel members noted that the VASRD §4.71a 20% threshold for rating ROM limitation under code 5201 is “at shoulder level” (approximately 90 degrees from the side). With the equivocal DeLuca deduction from measured abduction by the C&P examiner, that threshold was met. However, that threshold was not met by any of the probative service examination, which demonstrated consistently better and improving ROM up to the time of separation. There was no explanation for the deterioration in ROM reflected by the C&P measurements, and the service measurements were better corroborated. Thus the determinant probative value was assigned to the service ROM evidence. The 0% PEB rating was not VASRD-based, and the panel agreed that there was ample evidence for painful motion supporting a minimum 10% rating IAW VASRD §4.59. There was no malunion or recurrent dislocation of the humerus, and no dislocation or nonunion of the clavicle or scapula to justify a higher rating under codes 5202 (humerus, other impairment of) or 5203 (clavicle or scapula, impairment of). After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right shoulder condition, coded 5099-5024 (analogous to tenosynovitis).

Contended PEB Condition: Depression. The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting. The condition was not profiled or implicated in the commander’s statement, and did not fail retention standards. There was no performance-based evidence from the record that it significantly interfered with satisfactory duty performance at separation. After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the depression, so no additional disability rating is recommended.

BOARD FINDINGS: In the matter of the right shoulder condition, the panel recommends a disability rating of 10%, coded 5099-5024 IAW VASRD §4.71a. In the matter of the contended depression, the panel 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 the CI’s prior determination be modified as follows, effective the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Pain Right Shoulder	5099-5024	10%	

XXXXXXXXXXXXXX, 

Dear XXXXXXXXXXXXXX:

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.