RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXX CASE: PD1201740 BRANCH OF SERVICE: ARMY BOARD DATE: 20130321 SEPARATION DATE: 20030529 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Soldier, PFC/E-3(11B/INFANTRYMAN) medically separated for chronic left shoulder pain and instability w/existed prior to service (EPTS) history of shoulder dislocation in 1997. The CI injured his shoulder in a high school football game in 1997, undergoing surgery in 1999, prior to enlistment. He received a waiver to enlist and reinjured his shoulder in basic training. Despite physical therapy, the shoulder condition could not be adequately rehabilitated 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). Anterior shoulder instability, left, severe; and bilateral pes planus, mild, were characterized as medically unacceptable, and forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated chronic left shoulder pain and instability with EPTS history of shoulder dislocation as unfitting, rated 10% with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). There was no deduction for the EPTS. The PEB adjudicated the bilateral pes planus, mild, as not unfitting. The CI made no appeals and was medically separated with a 10% disability rating. CI CONTENTION: The CI writes: “As a result of the injury I sustained while serving on active duty, I have had two major left shoulder operations. The only operation left to perform (if I ever injure the shoulder again) is to get a prosthetic left shoulder. After my second left shoulder surgery 29 July 2010, I incurred severe nerve damage to my left hand limiting movement and strength. My current VA disability rating is 70% (service connected). I would just like to add that my shoulder and hand disabilities impact my life on a daily basis. My son L--- (18 months old) was born profoundly deaf. He uses sign language to communicate. Because of the nerve damage in my left hand, I am unable to sign correctly to communicate with my son. I have also had a lot of atrophy to my left arm and hand. My grip strength for left hand was recently measured at 18 lbs. While my right hand measured at 128 lbs. My left ring and pinky fingers are curled (known as “claw hand”), and unable to straighten. My first surgery was at Beth Israel/Deaconess Hospital in Boston, MA. May 2007 (Dr. D----) and second was at VA Hospital Jamaica Plain, MA. 29 July 2010.” 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 left shoulder condition is addressed below; however, the additional requested condition of the left hand is not within the DoDI 6040.44 defined purview of the Board. 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. 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 (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 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. RATING COMPARISON: Service IPEB – Dated 20030305 VA (4 Mos. Post-Separation) – Effective 20030530 Condition Code Rating Condition Code Rating Exam Chronic Left Shoulder Pain and Instability 5099-5010 10% S/P Bankart Repair, Left Shoulder* 5201 30% 20030915 Bilateral Mild Pes Planus Not Unfitting Bilateral Pes Planus 5276 NSC** 20030915 No Additional MEB/PEB Entries Other x 0 20030915 Combined: 10% Combined: 30% *Bankart surgical repair performed less than one month after separation and prior to VA exam **Derived from VA Rating Decision (VARD) dated 20031106 (most proximate to date of separation [DOS]). That VARD deferred the decision on bilateral pes planus, which was NSC’d by VARD of 20040318. ANALYSIS SUMMARY: CHRONIC LEFT SHOULDER PAIN AND INSTABILITY. Magnetic resonance imaging (MRI) in August 2002 showed a tear in the inferior labrum (rim of cartilage in the joint) and a complete rotator cuff tear. The right hand dominant CI was offered repeat reconstructive surgery to address pain and instability, but due to the uncertainty of outcome he declined this option. An orthopedic examiner on 13 September 2002 (8 months prior to separation) noted a positive apprehension test, a positive sulcus sign, and ligamentous laxity (signs of joint instability); a relocation test was equivocal. The examination was rendered difficult because of guarding. At the narrative summary (NARSUM) exam in December 2002, 5 months prior to separation, the CI reported pain and subjective instability in daily activities. The examiner noted 3+ out of 5 rotator cuff strength and reduced flexion and abduction. Flexion was 90 degrees (normal 180 degrees) and abduction was 120 degrees (normal 180 degrees). At the VA Compensation and Pension (C&P) exam in September 2003, 3 months after a second shoulder repair and 4 months after separation, the CI rated his baseline pain as 4 on a 1-10 scale and flare-ups as 7 out of 10. He reported subjective stiffness and occasional swelling and fatigue. The examiner noted stiffness and guarding, and no swelling, deformity, or tenderness. Pain on range-of-motion (ROM) occurred only with slight external rotation. X-rays of the shoulder (September 2003) showed no abnormalities. The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the condition as permanently service aggravated and assigned a 10% rating under an analogous 5010 code (traumatic arthritis) for "slight reduction in range of motion, no documented subluxation/dislocations." The VA assigned a 30% rating under code 5201 for limitation of motion of the non-dominant arm “to 25 degrees from side,” which did not appear to align with the C&P exam. The Board assigned higher probative value to the NARSUM exam because intervening surgery after separation rendered ROM findings by the VA examiner irrelevant to the time of separation. The VASRD §4.71a threshold for compensable ROM impairment is “shoulder level”, i.e., 90 degrees, and the examination demonstrated motion at this level in one plane (flexion), but above this level in another plane (abduction). The Board agreed that this evidence most closely approximated the 20% criteria. Board members also deliberated the presence of instability in this case. Under the 5202 code (humerus, other impairment of: recurrent dislocation of at scapulohumeral joint) a 20% rating is justified for "infrequent episodes, and guarding of movement only at shoulder level." The Board agreed that although there were objective findings of instability, there was no record of any dislocations; thus a compensable rating was not justified under this code. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic left shoulder pain and instability 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 chronic left shoulder pain and instability condition, the Board unanimously recommends a disability rating of 20%, coded 5201 IAW VASRD §4.71a. 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 Chronic Left Shoulder Pain and Instability 5201 20% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120820, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXX, AR20130006102 (PD201201740) 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 20% 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 XXXXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)