RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxx	CASE:  PD-2017-05032
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051118

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Multi-Channel Transmitter Operator/Maintainer, medically separated for “bilateral shoulder pain and joint instability” with a disability rating of 0%.   

CI CONTENTION:  In addition to the bilateral shoulder condition, the CI requested review 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 – 20051102	VARD – 20060403	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Shoulder Pain and Joint Instability 	5099-5003	0%	Left Shoulder Instability	5201	0%	STR	
			Right Shoulder Instability	5201	0%	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0% 	

ANALYSIS SUMMARY:  

Bilateral Shoulder Pain and Joint Instability.  The PEB combined the right and left shoulder conditions under a single disability rating, coded analogously to 5003 and rated 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  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 (STR) and MEB narrative summary (NARSUM), the right-handed CI’s shoulder conditions began in January 2003 when both shoulders started popping out of place when lifting or doing physical training.  The CI denied any trauma, but did report lifting weights regularly.  In primary care in January 2005, the examiner noted right greater than left shoulder subluxation and physical therapy (PT) range of motion (ROM) testing, on 2 February 2005, showed full range of motion (ROM).  Provocative testing to elicit shoulder instability was positive bilaterally.  

At the orthopedic clinic examination on 1 March 2005, 9 months prior to separation, the CI reported bilateral shoulder dislocations; he could voluntary dislocate them or dislocation occurred with push-ups.  Testing for impingement was negative.  The CI had full ROM without pain.  Rotator cuff strength was normal, but there was pain with strength testing.  There was anterior instability bilaterally.  During the 2 March 2005 PT clinic appointment, the CI reported doing push-ups about 5 weeks earlier and both shoulders popped out.  Since then the CI reported several other “dislocations” with push-ups and weight lifting, but he was always able to self-relocate.  He reported aching of the shoulders graded 7/10.  At a follow-up orthopedic appointment on 10 May 2005, shoulder ROM testing showed right and left shoulder flexion of 100 degrees (normal 180) and right and left abduction of 110 degrees (normal 180).  No objective evidence of painful motion was recorded.  There was positive laxity and instability with positive apprehension testing bilaterally.  Bilateral shoulder instability was diagnosed, but no surgery was recommended.  

At the 1 August 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, the examiner recorded positive apprehension signs for both shoulders.  The bilateral shoulder condition was permanently profiled “U3” with duty limitations of no push-ups, lifting over 20 pounds, wearing of ruck sack or carrying/firing individual assigned weapon.  The commander’s statement indicated the CI was physically incapable of reasonably performing the lifting requirements of his MOS due to bilateral shoulder instability.  

At the 26 August 2005 MEB NARSUM examination, 3 months prior to separation, the CI reported he could easily dislocate his shoulders voluntarily or while performing push-ups with minimal effort.  Physical examination showed bilateral positive apprehension signs and a positive laxity on load and shift tests.  The laxity was noted as both anterior and posterior bilaterally.  There was no evidence of impingement or bicipital tendonitis on testing.  The examiner stated the CI continued to have bilateral instability and only had pain when the shoulders dislocated.  No guarding was documented.  There was no VA examination proximate to separation in evidence.

The panel first considered if the right and left shoulder conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The bilateral shoulders were profiled, implicated in the commander’s statement and judged to fail retention standards.  The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either shoulder over the other.  Since undue speculation would be required to conclude that impairment from either shoulder would not have unacceptably interfered with the performance of military duties, members agreed that each shoulder was reasonably justified as separately unfitting.

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the right and left shoulder conditions and applied a single 0% rating coded 5099-5003, citing application of the USAPDA pain policy.  The VA rated each shoulder condition 0%, coded 5201 (arm, limitation of motion) citing non-compensable limitation of motion.  Panel members agreed the objective findings and associated disability for each shoulder were identical and the respective ratings should therefore be the same.  The CI had multi-directional instability of the shoulders with recurrent subluxation and dislocations.  However, there was no evidence of guarding of either shoulder to support a rating under 5202 (humerus, other impairment of) for recurrent dislocations and guarding of shoulder movements.  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), and the examinations in evidence demonstrated motion above this level for both shoulders.  However, panel members agreed that a 10% rating was justified for each shoulder for functional loss (based on §4.59, §4.40 and §4.45) due to joint laxity, painful motion (pain with resisted motions) and pain with dislocations as documented on the orthopedic, physical therapy and MEB NARSUM examinations.  There was no malunion of the humerus and no dislocation or nonunion of the clavicle or scapula to justify a higher rating under 5202 or 5203 (clavicle or scapula, impairment of) codes.  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 (major) condition and 10% for the left (minor) shoulder condition, both coded 5099-5003.  

BOARD FINDINGS:  In the matter of the bilateral shoulder condition, the panel recommends that each joint be separately adjudicated as follows: an unfitting right shoulder condition coded 5099-5003 and rated 10%, and an unfitting left shoulder condition, coded 5099-5003 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 the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Shoulder Pain and Joint instability	5099-5003	10%	
Left Shoulder Pain and Joint Instability	5099-5003	10%	
COMBINED	20%	

 

 

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. 

Sincerely,

Enclosure