RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201389 SEPARATION DATE: 20081016 BOARD DATE: 20130221 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Soldier, SGT/E-5(11B20/Infantryman) medically separated for malunion of the left clavicle. The CI fractured his left clavicle, for the fourth time, in a biking accident in May 2007. He did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded malunion of the left clavicle fracture as medically unacceptable and adjustment disorder with anxiety as meeting retention standards. The Physical Evaluation Board (PEB) adjudicated malunion of the left clavicle as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD), and the adjustment disorder with anxiety as meeting retention standards. The CI made no appeals and he was medically separated with a 10% disability rating. CI CONTENTION: “MEB rated left shoulder @ 10%, VA rated 20%, plus VA rated as service connected PTSD – 30%, Tinnitus – 10%.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The rating for the unfitting malunion of the left clavicle condition will be reviewed. The requested conditions of posttraumatic stress disorder (PTSD) and tinnitus are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service PEB – Dated 20080715 VA (3 Mos. Post-Separation) – All Effective Date 20081017 Condition Code Rating Condition Code Rating Exam Malunion of Left Clavicle 5203 10% Malunion of Left Clavicle 5202 20% 20090128 Adjustment Disorder w/Anxiety Meets Retention Standards Anxiety Disorder, NOS 9400 30% 20090212 .No Additional MEB/PEB Entries. Bilateral Tinnitus 6260 10% 20090128 Not Service-Connected x4 20090128 Combined: 10% Combined: 50% ANALYSIS SUMMARY: The Board acknowledges the CI's contention suggesting that ratings should have been conferred for other conditions documented at the time of separation and for conditions not diagnosed while in the service (but later determined to be service-connected by the Department of Veterans Affairs [DVA]). While the Disability Evaluation System (DES) considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DVA, however, is empowered to compensate service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board notes the current DVA ratings listed by the CI for all of his service-connected conditions, but must emphasize that its recommendations are premised on severity at the time of separation. The DVA ratings that it considers in that regard are those rendered most proximate to separation. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the DVA. Malunion of Left Clavicle. There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation as summarized in the chart below. Left Shoulder ROM NARSUM Addendum 4 Mos. Pre-Sep VA C&P 3.5 Mos. Post-Sep Flexion (0-180°) 150 140 Abduction (0-180°) 135 85° Comments Mild prominent deformity mid-shaft of clavicle; Mild tenderness to palpation; No crepitance with motion; Full range of motion; Pain at the malunion site with overhead motion; Neurovascularly intact distally Noticeable callus formation middle third of clavicle; Tenderness with palpation; Normal rotation of arms inward &outward motion; Normal strength in the upper extremities; Negative Deluca; No redness or inflammation of shoulder or clavicle; Normal sensory exam §4.71a Rating 10%* 20% *IAW VASRD policy §4.59, painful motion The narrative summary (NARSUM) prepared 4 months prior to separation noted the CI had chronic left shoulder pain over a previous clavicular fracture. He sustained a left closed clavicle fracture in a bike accident in May 2007. The CI had a history of fracturing the same clavicle three other times, all before the age of 17; he healed uneventfully from each of the previous fractures and entered the military without pain over his left clavicle. He underwent non- operative treatment and the fracture completely healed; however, he had a significant malunion and a prominent callus that bothered him during his military duties. He did have some pain with overhead motion, and he had a notable amount of pain with direct pressure over the mid portion of his mal-united and deformed clavicle. He could not do push-ups and sit-ups hurt him because of his shoulder striking on the ground beneath him. He could not lift over 30 pounds for longer than approx. 15 minutes and he could not wear a flack vest or load bearing equipment for extended periods of time. His pain persisted despite activity modifications. Significant physical exam findings are summarized in the chart above. Radiographs of the left clavicle demonstrate a healed left clavicle fracture with resulting malunion deformity and prominent callus formation. Previous CT scan also verified the fracture union and malunion. At the MEB exam accomplished 4 months prior to separation, the CI reported he suffered a broken clavicle four times. The MEB physical exam noted mildly exaggerated “S-shape” with depression over lateral 1/3 junction. He was quite tender over the prominent mid-shaft. There was pain with movement of proximal clavicle but not the distal portion. His left shoulder had a full ROM at the glenohumeral joint with pain only noted on movements requiring movement of the clavicle. The acromioclavicular joint was non-tender. At the VA Compensation and Pension (C&P) exam accomplished 3 months after separation, the CI reported a history similar to the one above with the following significant additions. Since being out of the military, the CI had less pain in his left shoulder. He was able to lift more, up to 50 pounds of weight, and he was able to work above his head for a lengthy period of time. He did continue to have pain over the mid one-third area of the left clavicle with any sort of pressure being put on that area. The Board directs attention to its rating recommendation based on the above evidence. The left clavicle malunion condition was adjudicated by the PEB with application of VASRD code 5203, impairment of the clavicle or scapula, and rated 10% disabling consistent with a malunion of the clavicle. The VA coded it 5202, other impairment of the humerus, and rated it 20% based on “marked deformity.” This VASRD code refers directly to impairment of the humerus that was not present in this case. The PEB utilized VASRD code 5203 which refers directly to disability from impairment of the clavicle and is the appropriate VASRD code for this case. The rating levels for VASRD 5203 are based on dislocation, nonunion or malunion with or without loose movement. There is no difference in rating based on impairment of the dominant vs. non-dominant upper extremity. The CI in this case had a malunion of the clavicle that directly corresponds to a 10% rating. The next higher 20% rating requires either a nonunion with loose movement or dislocation of the clavicle, neither of which were present in this case. Code 5203 does allow for rating based on impairment of function of the contiguous joint. If that rating option was utilized, a 10% rating would be recommended based on VASRD code 5003 with painful motion of the shoulder without compensable ROM measurements. That would be of no benefit to the CI. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends no change in the PEB adjudication for the malunion of the left clavicle condition. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the malunion of the left clavicle condition, the Board unanimously recommends no change in the PEB adjudication. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Malunion of the Left Clavicle Condition 5203 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120727, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxx, AR20130005376 (PD201201389) I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)