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:  	BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1201522	SEPARATION DATE:  20080427
BOARD DATE:  20130621

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (21B10/Combat Engineer) medically separated for a bilateral shoulder condition.  He had pre-existing history of bilateral shoulder instability and suffered recurrent dislocations during service.  He underwent separate surgical repairs in 2005 (right) and 2007 (left), but was left with persistent pain and subjective instability.  The conditions 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).  The condition, characterized as “bilateral shoulder pain/instability” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  The MEB also identified and forwarded four other conditions (see rating chart below) judged to meet retention standards.  An initial Informal PEB adjudicated the bilateral shoulder condition as unfitting, rated 10%.  An administrative correction by the US Army Physical Disability Agency rated the shoulders 20% bilaterally; although specified separate 10% right and left ratings on the DA Form 18.  Army Regulation (AR) 635-40 was referenced in that decision.  The remaining four conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The application states simply, “I was given a 20% rating from the Army for a medical condition.  The VA rated me 100%/Individual Unemployability.  I wish to have the Army discharge reviewed.”

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 bilateral shoulder condition is addressed below.  Since the PEB adjudicated post-concussion syndrome, right carpal tunnel syndrome (CTS), cholesterol, and blood pressure conditions were integral to the VA combined rating cited in the application, members agreed that those conditions were appropriately included in the Board's scope of review; and, they are accordingly addressed below.  Those, and any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service PEB (Corrected) – Dated 20080306 | VA (1 Mo. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Bilateral Shoulder Pain ... | 5099-5003 | 20% | Residuals, Left Shoulder | 5201-5024 | 10% | 20080522
| | | Residuals, Right Shoulder | 5201-5024 | 10% | 20080522
Postconcussion Syndrome | Not Unfitting | Migraine Headaches | 9304-8045 | 10% | 20080522
Right Carpal Tunnel Syndrome | Not Unfitting | Right Carpal Tunnel Syndrome | 8599-8515 | 0% | 20080522
Elevated Blood Pressures | Not Unfitting | Hypertension | 7101 | 0% | 20080522
Hypercholesterolemia | Not Unfitting | No VA Entry | 20080522
No Additional MEB/PEB Entries | PTSD @ 10% + Others X 4 | 20080522
Combined Rating:  20% | Combined Rating:  60%*
Derived from VA Rating Decision (VARD) dated 20080808 (most proximate to date of separation [DOS]).
*100% rating referenced in contention derived from VARD dated 20100107, effective 20090311; reflecting increase in PTSD    rating to 70% and addition of traumatic brain injury (TBI) rated 70%.  (PTSD and TBI conditions are not in Board scope)

ANALYSIS SUMMARY:  The Board acknowledges the CI’s implied contention for ratings of the various conditions noted above which were determined to be not unfitting by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements, a Service disability rating IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD) based on the degree of disability evidenced at separation will be recommended.

Bilateral Shoulder Condition.  The CI reported a pre-service history (from age 11) of bilateral shoulder joint laxity and subjective subluxations.  His first confirmed dislocation in the Service occurred with his right shoulder in August 2005 while he was in training.  This was surgically repaired in December 2005.  The CI dislocated his left shoulder while deployed to Iraq in 2006, and underwent surgery after redeployment in March 2007.  His pain rebounded after some subsequent field duty, and he continued to report subjective instability with consequent guarding of shoulder motions.  Imaging demonstrated ligamental and capsular integrity, and there were no documented dislocations of either shoulder after surgical intervention.  An orthopedic consult recommended a MEB referral in July 2007, with a diagnosis of “bilateral instability, right greater than left;” although a clinical entry by the same orthopedist on the same day documented normal findings to stress testing of both shoulders.  The narrative summary (NARSUM) stated, “his shoulders continue to feel unstable, and he reports frequently noticing a ‘slipping’ [emphasis, quote per original] sensation.”  The CI complained of average daily pain rated 5/10 (left > right), with exacerbations to 8/10; and limitations on lifting > 20 pounds, weight bearing, and physical exercises.  The physical exam did not document joint stress testing, and stated, “he displayed a strong apparent overreaction to the pain with passive, and especially active, attempts at measuring range of motion [ROM].”  Measured ROM was bilateral abduction and forward flexions of 110 degrees (normal 180 degrees, minimal compensable 90 degrees).  At the VA Compensation and Pension evaluation (a month post-separation), the examiner noted daily pain equal in both shoulders with frequent exacerbations “sometimes mild, sometimes moderate.”  Detailed functional limitations were elaborated which included daily activities such as dressing.  The VA physical exam noted “deconditioning” of shoulder girdle musculature with “4/5 strength” (not elaborated).  The examiner did not document stress testing of the joints, but opined “The endurance was bilaterally more than moderately diminished.”  The measured ROM was abduction 100 degrees left/105 degrees right and forward flexion 120 degrees left/125 degrees right, with documentation of painful motion.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s bilateral 20% rating under the analogous code 5099-5003 (degenerative arthritis) is not technically accurate since no criteria for a rating higher than 10% (2 major joints without incapacitation) were met under that code; although, as noted, the PEB’s adjudication was de facto separate 10% ratings.  The Board’s recommendations, IAW DoDI 6040.44, must comport strictly with the VASRD criteria.  Members thus deliberated the appropriate coding and fairest rating for each individual joint.  The ROM evidence does not support the minimum rating under the single limitation of motion code for the shoulder (5201).  Members carefully considered an analogous rating under 5202 (humerus, other impairment of) which confers 20-30% ratings for recurrent dislocation.  Even though there were clearly not recurrent dislocations after the surgical interventions, gross shoulder instability can still be accommodated analogously under 5202.  Members agreed, however, that the preponderance of the evidence would not support a conclusion that the shoulders were physically at risk for recurrent dislocation or even subluxation.  Barring the 5202 route, there is no VASRD §4.71a route to a rating higher than 10% for either shoulder under any applicable code.  There is abundant evidence in support of application of VASRD §4.59 (painful motion) to achieve the minimum 10% under 5201.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends disability ratings of 10% each for the left and right shoulder conditions.

Contended Postconcussion Syndrome.  The CI suffered a concussion from an explosion in July 2006 during his Iraq deployment.  There was no loss of consciousness or other significant injury, and medical evacuation was not required.  He continued to suffer recurrent headaches and reported problems with memory and concentration after redeployment.  Neurologic examinations and imaging were normal, and the CI was followed by Neurology with various medication trials.  Neuropsychological testing revealed some slowing of processing speed, but no gross deficits.  Specifically the CI “was not able to identify instances where this [reported memory deficits] had been a significant problem with him.”  The neuropsychologist opined that the condition met retention standards.  The NARSUM reported a current headache frequency of twice weekly; and stated, “he denies any incapacitating or prostrating headaches, and he states that he had not missed any work because of them.”  The headache and cognitive impairment were not profiled; and, were not implicated in the commander’s statement which referenced only the orthopedic limitations.

The Board’s main charge with respect to this condition is to assess the fairness of the PEB’s determination that it 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.  Although it is clear that the postconcussive syndrome was associated with ratable disability, an established principle for fitness determinations is that they are performance-based.  As reflected by provider opinions, assessment of AR 40-501 retention standards, the commander’s statement, and a review of the file; the Board is confronted in this case with the lack of a preponderance of evidence that the limitations imposed by the condition prohibited the performance of the duties required of the MOS.  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 postconcussive syndrome; thus no disability rating can be recommended.

Contended Right Carpal Tunnel Syndrome (CTS).  Concurrently with his shoulder complaints, the CI reported bilateral hand paresthesias (right > left); and underwent electrophysiologic studies in September 2007.  He was diagnosed with CTS on the right, and no nerve impairment was identified on the left.  He was treated in a splint, and reported no improvement.  Interim examination noted normal motor strength at the wrist and hand.  He was referred for orthopedic consultation as a possible surgical candidate, but left the clinic after a provider delay.  The NARSUM stated, “His symptoms do not, in and of themselves, result in any significant limitations at this time.”  The CTS condition was not profiled.  None of the limitations specified in the commander’s statement were specific to hand or wrist function.  The C&P evaluation proximate to separation did not identify compensable disability for CTS.  As elaborated above with regards to the postconcussion syndrome, members agreed that there was insufficient performance based evidence to support a recommendation that the condition was unfitting and eligible for rating.

Contended Hypercholesterolemia and Blood Pressure Conditions.  Neither of these conditions was associated with any functional consequences, nor would either confer compensable disability.  A rating cannot be 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 AR 635-40 for rating bilateral shoulder pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the bilateral shoulder condition, and in strict compliance with VASRD §4.71a, the Board unanimously recommends that each joint be rated separately at 10%, coded 5299-5201.  In the matter of the contended postconcussion syndrome, right CTS, hypercholesterolemia, and blood pressure conditions, the Board unanimously recommends no change from the PEB determinations of 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
Chronic Pain and Surgical Residuals, Right Shoulder | 5299-5201 | 10%
Chronic Pain and Surgical Residuals, Left Shoulder | 5299-5201 | 10%
Postconcussion Syndrome (Headache and Cognitive Impairment) | Not Unfitting
Carpal Tunnel Syndrome, Right Upper Extremity | Not Unfitting
Hypercholesterolemia | Not Unfitting
Elevated Blood Pressures | Not Unfitting
COMBINED (w/ BLF) | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120813, 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 AR20130015322 (PD201201522)

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 description without modification of the combined rating or 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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1201522