Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201119
BRANCH OF SERVICE:  Army	BOARD DATE:  20130522
SEPARATION DATE:  20011211

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SFC/E-7 (91B/38A/Medical NCOIC/Civil Affairs Specialist) medically separated for chronic pain, right shoulder, status post (s/p) repair of rotator cuff tear.  He injured his shoulder in 1996 while deployed to Bosnia.  He was initially managed conservatively but then had rotator cuff surgery in January 2000.  This relieved the pain, but the condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards.  He was issued a permanent P3U3 profile and referred for a Medical Evaluation Board (MEB).  The right shoulder condition, characterized as “status post right shoulder repair of massive rotator cuff tear,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated the right shoulder as unfitting and rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI requested a Formal PEB and wrote a letter of rebuttal.  The US Army PEB reviewed the rebuttal and a Reconsideration PEB affirmed the PEB findings and rating.  The CI was medically separated.

CI CONTENTION:  The CI is deceased and the spouse applied on his behalf, but elaborated no specific contention in the application.

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 right shoulder condition is addressed below; no additional conditions are 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 Board for Correction of Military Records.

RATING COMPARISON:

Service Recon IPEB – Dated 20010821 | VA - (1 Mos. Pre Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Pain R/Shoulder s/p Rotator Cuff Tear | 5099-5003 | 10% | Rotator Cuff Tear and Right Acromioclavicular Joint DJD | 5299-5201 | 20% | 20011119
No Additional MEB/PEB Entries | Other x 9 |
Combined:  10% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20020401.  VARD 20000125 (most proximate to date of separation [DOS]) did not award CI a rating due to lack of response/evidence.  General C&P exam dated 20011016 not in evidence. 

ANALYSIS SUMMARY.  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the 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 DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB.  However, the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all 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’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Administration Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Right Shoulder Condition.  The CI initially injured his right (dominant) elbow and shoulder in February 1990 due to a fall.  The CI fractured his right elbow, but apparently fully recovered.  The service treatment record next documents right shoulder pain when an orthopedic note dated (21 October 1997) reported poor range-of-motion (ROM) and two prior injections.  He was followed by orthopedics and managed conservatively over the next year.  A magnetic resonance imaging (MRI) exam performed on 22 April 1998 suggested a rotator cuff tear.  There were mild acromioclavicular (AC) joint hypertrophy changes present.  The signal in the humeral head was unremarkable and the radiologist noted that there was motion artifact (secondary to muscle spasms) that “degraded” the MRI exam.  His duty was limited but he remained worldwide deployable.  On 25 January 2000 the CI had surgical repair of the right rotator cuff.  The CI had an excellent response to surgery, but still had limitations due to the extent of the underlying damage and subsequent repair.  The narrative summary (NARSUM), dictated 30 April 2000 noted that the CI had done well postoperatively and was starting to achieve some physical therapy goals.  The CI reported feeling “very satisfied” with his outcome; his pain decreased and ROM increased (see ROM chart below).  The examiner noted that the surgical incision was well-healed and that there was positive sensation over the axillary nerve.  The examiner also reported the CI was unable to perform specifically within his MOS, complete activities of daily living, or do anything that involved the use of is right shoulder.  The CI’s pain was marked and frequent.  At a follow up orthopedic appointment on 25 September 2000, the CI had continued restrictions in motion, which were stable, and his strength was 4+/5.  An addendum to the NARSUM, dated 17 January 2001, recorded right shoulder abduction to 110 degrees, forward flexion to 110 degrees without pain.  There was 4/5 strength in external rotation and 5/5 in internal rotation.  There was no pain on passive ROM and no crepitus present.  The examiner found no signs of impingement (Neer’s and Hawkins tests) or pathology of upper extremity/shoulder joint (Speed’s test).  An “addendum on medication,” also dated 17 January 2001, reported that the CI’s orthopedic condition had stabilized to the point where he was no longer taking prescription medication for that; it did note that the CI was taking over the counter medications.  The VA Compensation and Pension exam performed 16 October 2001, a month prior to separation, reported that the CI was unable to lift his right shoulder.  The CI reported having “mild pain from time to time.”  On examination, the right shoulder appeared to be “slagging looking.”  The right shoulder ROM testing revealed 80 degrees of flexion and abduction and 90 degrees of internal and external rotation.  The examiner noted that the ROM was limited by pain and stiffness.  The VA examiner reported that the CI’s functional limitation was “mild.”  An X-ray examination of the shoulder date 16 October 2001 revealed mild degenerative changes of the AC joint and “a very small avulsed fracture fragment arising from the posterior acromion.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the right shoulder condition analogously to 5099-5003, rated at 10%.  The VA also analogously coded the condition 5299-5201 and assigned a 20% disability rating.  While it is obvious that there is a disparity between the MEB and VA examinations, this had no impact on the Board's rating recommendation.  The Board noted that the ROM for both flexion and abduction were limited to near the shoulder level on the MEB and VA examinations.  Strength was not documented for the VA examination, but the MEB examination showed 4/5 strength in external rotation, but normal for internal rotation.  His pain was minimal.  The Board considered VA code 5304, muscle Group IV for the rotator cuff, but the reduction in strength did not rise above the moderate level.  This would rate at 10% providing no benefit to the CI.  The Board agreed that coding the condition analogously to 5201, limitation of motion of the arm, as was done by the VA, was more reflective of the CI’s condition.  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 right shoulder 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.  As noted above, PEB reliance on the USAPDA pain policy DoDI 1332.39 for rating chronic right shoulder pain condition was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board.  In the matter of the chronic right shoulder pain condition, the Board by a vote of 2:1 recommends a disability rating of 20%, coded 5299-5201 IAW VASRD §4.71a.  The single voter for dissent, who recommended no recharacterization, did not elect to submit a minority opinion.  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 Pain R Shoulder, S/P Rotator Cuff Tear Condition | 5201 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120712, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130015093 (PD201201119)

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 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’s spouse, 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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1201119