RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04633
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091002

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E3, Infantryman, medically separated for “right shoulder pain” and “right ankle pain,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  “Rating should be changed to 100%” based on VA disability benefits.  Review requested of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 - 20090617	VARD - 20100302	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Pain	5099-5003	10%	Torn Right Bicep, Long Head	5399-5304	10%	STR	
Right Ankle Pain	5099-5024	10%	No VA Placement	
Depressive Disorder	Not Unfitting	PTSD	9411	70%	STR	
Tinnitus, Bilateral	Not Unfitting	Tinnitus	6260	10%	STR	
Classic Migraines	Not Unfitting	Headaches, Tension	8199-8100	0%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Right Shoulder Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI sustained a right biceps tear in June 2002 and was treated conservatively.  He reinjured the shoulder in 2003 and subsequently underwent a labral repair with distal clavicular resection and subacromial decompression on 5 October 2007.  Despite physical therapy (PT), he continued to have shoulder pain.  An MRI on 3 April 2008 showed a new superior labral tear, and on 1 May 2008 he had a second repair; X-rays on 10 March 2009 showed degenerative changes.  

At the 11 March 2009 MEB orthopedic consult, 7 months prior to separation, the provider documented mild tenderness over the right acromioclavicular (AC) joint as well as the anterior shoulder, but no significant atrophy.  Right shoulder range of motion (ROM) showed both flexion and abduction of 150 degrees (normal 180), with pain at the extremes.  During the 13 March 2009 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported a very painful right shoulder due to “wear and tear.”  Physical examination showed full, active ROM, but pain with abduction, and intact neurovascular findings.  Three days later, the MEB NARSUM examination recorded CI complaints of constant right shoulder “arthritic-type” pain but no flare-ups.  The examiner repeated physical findings from the MEB orthopedic consult and noted “associated fatigue, weakness, lack of endurance, instability or incoordination.  Additional surgery was not indicated.”  There was no VA examination proximate to separation in evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition 10%, analogously coded 5003 (arthritis, degenerative), citing forward flexion and abduction limited to 150 degrees by pain.  The VA initially rated the right shoulder condition 10% in 2005, discontinued the rating due to active duty service, and then reinstated it following release from active duty with no further evaluation.  Panel members noted that the VASRD §4.71a threshold for rating ROM impairment under code 5201 (arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion above this level.  However, the panel agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion).  There was no malunion or recurrent dislocation of the humerus to justify a rating under code 5202 (humerus, other impairment of); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under code 5203 (clavicle or scapula, impairment of).  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the right shoulder condition.  

Right Ankle Pain.  According to the STR and MEB NARSUM, the CI underwent right ankle surgery in November 2008 for a torn peroneus brevis.  On 10 March 2009, X-rays showed soft tissue swelling about the right distal fibula, but intact osseous structure and joints spaces with an unremarkable talar dome.  At the 11 March 2009 MEB podiatry consult, the CI reported no improvement with the surgery and experienced pain rated at 8/10.  He was doing formal PT, using a 3D boot, ankle brace, icing and taking pain medications.  Physical examination documented a scar at the lateral aspect of the right foot and ankle along the peroneal tendon area, where tenderness was also noted.  There was no ecchymosis, erythema, ankle joint crepitus or tenderness, and bilateral ankle ROM was symmetric (not quantified).  During the MEB examination, the CI reported his “ankle had a knot sticking out.”  Physical examination noted tenderness along the leg, but no redness, bruising, or instability.  The MEB NARSUM examination noted CI complaints of continued chronic pain despite surgery.  The examiner referred to the MEB podiatry examination, but also documented  dorsiflexion of 20 degrees (normal) plantar flexion of 45 degrees (normal), after repetition; painful motion was not addressed.    

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle condition 10%, analogously coded 5024 (tenosynovitis), citing evidence of painful motion.  Panel members agreed there was no limitation of dorsiflexion or plantar flexion that supported a rating under the VASRD code 5271.  However, a 10% rating for functional loss (§4.40, §4.45, §4.59) due to pain was appropriate, as adjudicated by the PEB.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the right ankle condition.  

Contended PEB Conditions:  Depressive Disorder, Bilateral Tinnitus and Migraines.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  None of the conditions were profiled or implicated in the commander’s statement, and did not fail retention standards.  Consults with neurology and psychiatry noted the depressive disorder and headaches met retention standards.  There was no performance-based evidence from the record that any of the conditions 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 any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the right shoulder condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the right ankle condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended depressive disorder, bilateral tinnitus and migraines, the panel recommends no change from the PEB determinations as not unfitting.  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:  

[AR NUMBER], 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.

	A copy of this decision has been provided to the counsel you listed on your application, Mr. xxxxxx x. xxxxxxxx, [ADDRESS].

					      
Enclosure