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:  PD1201154
BRANCH OF SERVICE:  army	BOARD DATE:  20130430
SEPARATION DATE:  20031023

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (11B/Infantry) medically separated for right shoulder pain.  He initially injured his shoulder in 2002 during platoon physical training.  The condition could not be adequately rehabilitated after surgery to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent P3U3 profile and referred for a Medical Evaluation Board (MEB).  The right shoulder condition, characterized as “right shoulder pain status post rotator cuff repair and Mumford procedure,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded Meniere’s disease for PEB adjudication.  The Informal PEB (IPEB) adjudicated right shoulder pain as unfitting, rated 20%, citing criteria of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The Meniere’s disease was determined to be not unfitting, not rated.  The CI made no appeals, and was medically separated with a 20% disability rating.

CI CONTENTION:  “I received 0% for a disabling condition of Meniere’s Disease.  I received only 20% for a shoulder rotator cuff tear right after post-op.  See DA Form 3349 (#3 Assignment Limitations).  I was experiencing vertigo and drop attacks at the time of this rating.  I do not understand how such conditions were noted, but rated at 0% disability.  I was on constant medication (Antivert) just in order to remain functioning.”

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.  Ratings for unfitting conditions will be reviewed in all cases.  The rated, unfitting right shoulder pain condition and not unfitting Meniere’s disease as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board 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 Board for Correction of Military Records.

RATING COMPARISON:  

Service IPEB – Dated 20030926 | VA -  (9 Days Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Right Shoulder Pain, Status Post Rotator Cuff Repair and Mumford Procedure | 5201 | 20% | DJD S/P Rotator Cuff Repair w/Acromionectomy Right (Dominant) Shoulder | 5003-5201 | 30% | 20031014
Meniere’s Disease | Not Unfitting | Meniere’s Syndrome (Including Claim for Vertigo, Hearing Loss and Tinnitus) | 6205 | 30% | 20031014
No Additional MEB/PEB Entries | Other x 0 | 20031014
Combined:  20% | Combined:  50%
Derived from VA Rating Decision (VARD) dated 20030530 (most proximate to date of separation [DOS)

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that suggests ratings should have been conferred for another condition documented at the time of separation.  The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. 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.  However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time.

Right Shoulder Pain.  This right-handed CI experienced a chronic impingement syndrome of the right shoulder apparently related to pitching a baseball while deployed.  In January 2003, he underwent uncomplicated surgery to repair the rotator cuff and resect the anterior one-third of the acromion and the distal clavicle.  Four months after surgery, the operating surgeon specified indefinite post-op restrictions of no lifting greater than 10 pounds, and no work with shoulder or above shoulder height.  The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Shoulder ROM
(Degrees)

Ortho ~ 2 Mos. Pre-Sep

VA C&P ~ 9 Days Pre-Sep

Flexion (180 Normal) | Not reported | 88
Abduction (180) | 80 | 88
Comments | +Painful motion | +Painful motion
§4.71a Rating | 20% (PEB 20%) | 20% (VA 30%)

The orthopedic surgery addendum on 27 August 2003, 2 months prior to separation, noted that the CI continued to complain of pain in the right shoulder with elevation of the arm, and also right arm weakness.  He was unable to perform prolonged work with the right arm.  On exam, he had pain at the extremes of range of motion.  Supraspinatus testing showed mild weakness and significant pain.  At the VA Compensation and Pension (C&P) exam on 14 October 2003 (9 days prior to separation), the CI rated the shoulder pain as 4-5/10 on a 1-10 scale.  He was concerned about returning to his job as a postal letter carrier.  The examiner noted 4+ strength in the right upper extremity and no deformity, laxity, instability, edema, or crepitus.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the condition using code 5201 (limitation of arm motion) but assigned different ratings.  The PEB’s 20% rating was based on limitation “at shoulder level” (90 degrees from the side).  The VA’s 30% rating assumed limited dominant arm motion to midway between the side and shoulder level (i.e. approximately 45 degrees), but the ROM at the C&P exam was not consistent with this degree of limitation.  The Board agreed that the ROM in evidence met criteria for a 20% rating under the 5201 code.  There was no documentation of frequent episodes of recurrent dislocation to warrant the next higher 30% rating under the 5202 code (humerus, other impairment of).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right shoulder pain condition.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the Meniere’s Disease was 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.  The service treatment record indicates that the CI had a history of vertigo since 2002.  He reported a separate history of tinnitus.  Magnetic resonance imaging of the brain showed no abnormalities.  Serial audiometry measured a mild high frequency sensorineural hearing loss in the left ear.  Meclizine, an anti-vertigo medication, helped “tremendously.”  An otolaryngology evaluation found no objective nystagmus or cerebellar abnormalities; and, concluded that the vertigo symptoms were likely due to Meniere’s Disease.  The recommended low salt diet was started at this time, and diuretic medication was prescribed.  The NARSUM noted that the low salt diet “eliminated much of the problems of the vertigo” and that the CI did not take the diuretic medication.  The NARSUM estimated the need for vertigo-related medical attention as less than once every three months.  In a statement dated 22 September 2003 the CI reported vertigo symptoms 1-2 times per month that interrupted his activity, but the nature of the interruption and duration of symptoms were not described.  The condition was profiled only at the time of the MEB and did not restrict activities such as running, marching up to five mile, swimming or bicycling.  The commander’s statement, written after the CI had been on treatment for a month, indicated that the condition at that time prevented operation of military vehicles and equipment, and exposure to loud noises.  The condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the Meniere’s Disease significantly interfered with satisfactory duty performance.  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 Meniere’s Disease 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.  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 right shoulder pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended Meniere’s disease condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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
Right Shoulder Pain, Status Post Rotator Cuff Repair and Mumford Procedure | 5201 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120808, 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 AR20130010838 (PD201201154)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1201154