RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2012-01626
BRANCH OF SERVICE:  Army	BOARD DATE:  20140716
SEPARATION DATE:  20050425

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92F/Petroleum Supply Specialist) medically separated for bilateral shoulder instability.  The bilateral shoulder conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The bilateral shoulder conditions, characterized as “right shoulder multidirectional instability” and “left shoulder multidirectional instability” by the MEB were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded two other conditions.  The Informal PEB adjudicated “bilateral shoulder instability, status post right shoulder surgery” as unfitting, rated 0%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting, not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have been found unfit by the VA and have been receiving 80% for my disability and I am receiving social security disability.  I am currently awaiting for my unemployment appeal.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting shoulder conditions are addressed below.  The Board likewise acknowledges the CI’s implied contention for service ratings of his bilateral carpal tunnel syndrome and left small finger flexor digitorum profundus rupture conditions and they are addressed below.  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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20050207 | VA – Original Exam not Available
Condition | Code | Rating | Condition | Code | Rating | Exam
Bilateral Shoulder Instability | 5099-5003 | 0% | Multidirectional Instability, Right Shoulder | 5299-5203 | 10% | -
Left Small Finger Flexor Digitorm Profundus Rupture | Not Unfitting | Flexor Digitorium Profundus Tendon Rupture, Fifth Digit, Left Hand | 5299-5227 | 0% | -
Bilateral Carpal Tunnel | Not Unfitting | Carpal Tunnel Syndrome, Left Wrist (Major) | 8599-8515 | 10% | -
| | Carpal Tunnel Syndrome, Right Wrist | 8599-8515 | 10% | -
Other x 0 (Not is Scope) | Other x 2 |
Rating: 0% | Combined:  30%
Derived from VA Rating Decision (VARD) dated 20100219 as Original VARD was not available.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System 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 Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The PEB combined the right and left shoulder instability conditions as a single unfitting condition rated as 5099-5003 (analogous to arthritis) at 0%.  The PEB relied on AR 635.40 (B.24 f.) and the USAPDA pain policy for not applying separately compensable VA Schedule for Rating Disabilities (VASRD) codes.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD rating guidelines.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself.  Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

The Board makes note that the original VA Compensation and Pension (C&P) examination and VARD were not available in the evidence before it; and, could not be located after the appropriate inquiries.  A further attempt at obtaining the relevant documentation would likely be futile and introduce additional delay in processing the case; and, it is was judged by the members that the missing evidence would not materially alter the Board’s recommendations.

Bilateral Shoulder Instability.  The Board first reviewed to see if both shoulders remained unfitting when separated from the PEB’s combined adjudication.  The permanent profile listed both the right and left shoulder pain conditions.  The commander’s statement implicated the CI’s physical impairments without specifically identifying them and noted limitations of no push-ups or sit-ups, unable to carry and fire a weapon and unable to carry a fighting load, that did not help to discriminate between them.  The MEB forwarded both shoulder conditions as not meeting retention standards.  The Board agreed that the evidence in the record supported that both shoulder conditions were reasonably considered separately unfitting for continued military service at the time of separation.  Accordingly, the Board considered the two conditions for separate disability ratings.
The narrative summary (NARSUM) notes that the CI experienced a traumatic dislocation of his right shoulder in June 2002, approximately 35 months prior to separation.  After that incident he experienced repeated shoulder dislocations, including another traumatic dislocation due to a fall while deployed.  Right shoulder X-rays showed a bony defect of the humerus associated with repeated dislocations (Hill-Sachs lesion of the posterior humeral head).  Right shoulder Magnetic Resonance Imaging and arthrogram in July 2003 confirmed injury to the shoulder cartilage from frequent dislocation, without injury of the rotator cuff muscles or tendons.  The CI had arthroscopic repair of his right shoulder in August 2003 (Bankart repair), but despite stabilization of the shoulder the CI continued to report pain and a grating sensation of the shoulder, which did not respond to further conservative treatment.  All shoulder treatment notes in the service treatment record (STR) reference the right shoulder only.

At the MEB exam on 4 October 2004, the CI reported right shoulder pain.  The MEB physical examination noted right shoulder range-of-motion (ROM) of forward flexion of 160 degrees (normal 180 degrees) and abduction of 160 degrees (normal 180 degrees).  There was tenderness to palpation of the anterior aspect of the right shoulder and pain and crepitus with shoulder ROM.  Additional shoulder testing for instability was normal (negative anterior and posterior load tests and sulcus test) and tests for rotator cuff injury (Neers, Hawkins and O’Briens) were negative.  The MEB examination noted left shoulder ROM of forward flexion and abduction of 180 degrees with positive testing for instability with positive apprehension sign.  The initial VA C&P examination and the original VARD are not in the records as noted above.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB combined the shoulder instability conditions and rated as one unfitting condition, rated 0%, coded 5099-5003 and cited the USAPDA Pain policy.  The VARD on 18 February 2010 noted that the right shoulder instability condition, coded 5299-5203 (analogous to clavicle or scapula impairment) rated 10% was continued and the left shoulder instability condition was not service connected.  The Board first considered the rating of the right shoulder condition.  The CI had painful limited ROM of the right shoulder, without evidence of instability following surgery.  The Board considered that the CI did not reach a compensable rating based on limitation of motion coding as 5201, which specifies the compensable threshold of motion limited to “at shoulder level.”  Board precedent when rating with 5201 has considered 90 degrees of abduction or flexion “shoulder level” and 45 degrees “midway between side and shoulder level.”  However, a 10% rating was achieved with 5201 criteria IAW §4.59 (painful motion).  The Board reviewed to see if a higher rating was achieved coding with 5202 (humerus impairment) or 5200 (shoulder ankylosis) criteria, but there was no evidence in record of loss of the humeral head, recurrent dislocations following surgical repair, or shoulder nonunion, malunion, or ankylosis.  The Board was unable to find a pathway to a higher rating under any applicable VASRD code and chose to code the right shoulder condition as 5201.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right shoulder condition, coded 5201.

The Board next considered the rating of the left shoulder.  Based upon the evidence in the available records the CI was not treated for left shoulder pain, dislocation, or any other problem during service.  At the MEB examination the left shoulder had full, painless ROM, but was noted to have positive signs of instability on examination.  However, the noted instability does not rise to the threshold for a compensable rating coding as 5202, which specifies infrequent episodes of recurrent dislocation.  The left shoulder also did not meet a compensable rating for limited ROM or painful motion under 5201.  The Board agreed that the most medically appropriate code for the left shoulder rating was 5202.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.31 (0% evaluations) the Board recommends a disability rating of 0% for the left shoulder condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral carpal tunnel syndrome and left small finger tendon rupture conditions were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Bilateral Carpal Tunnel Syndrome (CTS).  According to the NARSUM the CI was diagnosed by electromyography/nerve conduction studies (EMG) with right CTS in January 2004 and left CTS in March 2004 and had surgery for the left CTS on 28 June 2004 and surgery for the right CTS on 24 August 2004.  Notes in the STR indicated the CI was left hand dominant.  At the MEB examination on 4 October 2004 the CI reported that following surgery numbness in his hands had resolved but he still had mild pain in both hands.  The MEB examination showed normal bilateral upper extremity (UE) strength and sensation and full wrist ROM.  Mild wrist pain was present bilaterally on either side of the surgical site (common post-surgery and usually gradually resolves) and was noted to be greater on the right than the left.

Left small (fifth) finger flexor tendon rupture.  According to the NARSUM in October 2002, the CI experienced a flexor tendon rupture of the distal phalanx (small bone in finger furthest from the body) of the left fifth finger.  Surgery to repair the tendon was unsuccessful and the CI remained unable to flex the terminal joint of the finger, but declined further surgery.  Notes in the STR in 2003 indicated the CI had chronic left UE pain following the tendon rupture and was seen in pain clinic and treated with gabapentin (nerve medication) and an anti-inflammatory medication.  At a neurological evaluation in January 2004, approximately 15 months prior to separation the CI reported persistent numbness of the left 5th finger and a small part of that side of the palm of his hand, which was noted on examination, without other abnormality.  At a neurological examination for left UE EMG on 8 March 2004 the CI reported numbness and tingling of the left 4th and 5th fingers, sometimes over his whole hand.  On examination strength, sensation and reflexes of the left UE were normal.  The EMG was abnormal and noted left CTS as noted above, but no nerve deficit related to the 5th finger injury.  The MEB examination on 4 October 2004 noted the CI’s inability to bend his left 5th finger distal joint.

The bilateral carpal tunnel conditions were permanently profiled.  The commander’s statement noted physical impairments without specifically identifying them and noted limitations of no push-ups or sit-ups, unable to carry and fire a weapon and unable to carry a fighting load that did not help to discriminate between the UE shoulder conditions or the CTS conditions.  The MEB examiner noted that the CI’s surgery related hand pain was continuing to resolve and the bilateral CTS conditions were medically acceptable and they were not judged to fail retention standards.  The Board noted that the CI’s CTS each improved following surgery but the CI still noted some residual surgical pain, greater in the right than the left, consistent with the right hand having had surgery just 6 weeks before the MEB examination.  There was no evidence that either hand would interfere with satisfactory duty performance following full recuperation from surgery.  The left small finger flexor tendon rupture was not permanently profiled, implicated in the commander’s statement or judged to fail retention standards.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended conditions and so no additional disability ratings are recommended.

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.  As discussed above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating the bilateral shoulder condition was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board.  In the matter of the bilateral shoulder condition, the Board unanimously recommends a disability ratings as follow: an unfitting right shoulder condition rated 10%, coded 5201 and an unfitting left shoulder condition, rated 0%, coded 5202, both IAW VASRD §4.71a.  In the matter of the contended bilateral carpal tunnel syndrome and left small finger tendon rupture conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION | VASRD CODE | RATING
Right Shoulder Instability | 5201 | 10%
Left Shoulder Instability | 5202 | 0%
COMBINED (w/ BLF) | 10%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB							

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20140020585 (PD201201626)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD-2012-01626