RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201632
BRANCH OF SERVICE:  Army	BOARD DATE:  20130430
SEPARATION DATE:  20030623

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (75F/Personnel Information System Management) medically separated for a right shoulder condition.  His right shoulder condition was treated conservatively, but continued to cause him pain and right arm weakness.  The 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).  The right shoulder condition, characterized as “neurological disorder and impingement syndrome” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501.  The PEB adjudicated “right axillary neuropathy with shoulder impingement” as unfitting, rated 20%, with likely application of the Veterans’ Administration Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated with a 20% disability rating.

CI CONTENTION:  “Upon separation they rated me for a shoulder condition, but told me that the V.A. would rate my knee, back and sinuses.  They also went directly to my now ex-wife with a figure that I would get in cash.  My migraines were and are debilitating several times a month. While separating from the Service, My section leader, a spouse (at the time) and the MRB office used intimidation to force the acceptance of only 20% and a payout.  I was told by the MRB personnel that the V.A. would give me a better rating, even though I wanted to hold out.”

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.  The requested knee, back, sinus and migraine conditions were not identified by the PEB, and thus are not within the DoDI 6040.44 defined purview of the Board.  Those, and any other conditions or contention not requested in his application, may be eligible for future consideration by the Board for Correction of Military Records (BCMR).  The Board acknowledges the CI’s assertions that his disability disposition was rushed and unfair.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.

RATING COMPARISON:  
   
Service  IPEB – Dated 20030324	VA - (4 mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Axillary Neuropathy with  Impingement	8518-5201	20%	Right Shoulder Impingement S/P Labral Tear	5201	20%	20031018	
No Additional MEB/PEB Entries	Other x 14	20031018	
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20040624 (most proximate to date of separation)

ANALYSIS SUMMARY:  

Right Shoulder Condition.  This right-handed male CI has a long history of problems with his right shoulder.  In November 2001, he injured his right shoulder while carrying a backpack on a road march.  He then apparently re-injured that shoulder while doing upper body physical training.  Magnetic resonance imaging (MRI) revealed a mild partial labral tear.  In October 2002, an electromyogram (EMG) showed right axillary neuropathy, with denervation in the deltoid and teres minor.  He was treated, but his shoulder symptoms persisted and an MEB was initiated.  The MEB clinical evaluation was on 12 February 2003, 4 months prior to separation.  Physical examination (PE) of the right arm revealed slight muscle weakness, but neurological exam was otherwise unremarkable.  Shoulder range-of-motion (ROM) testing showed forward flexion of 120 degrees, and abduction of 90 degrees.  As noted above, the CI was medically separated from the Army on 23 June 2003.

Four months later, he had a VA compensation and pension (C&P) exam.  The CI reported constant pain.  Right shoulder ROM testing revealed forward flexion of 110 degrees, and abduction of 95 degrees.  Internal and external rotation were both normal.  The two ROM evaluations which the Board weighed in arriving at its rating recommendation, are summarized in the chart below.

Right Shoulder ROM	MEB ~ 4 mos. Pre-Sep
(20030212)	VA C&P ~4 mos. Post-Sep
(20031018)	
Flexion (180⁰ is normal)	120⁰	110⁰	
Abduction (180⁰ is normal)	90⁰	95⁰	
Comments	Pain with motion	Tenderness of shoulder	

The Board carefully reviewed all evidentiary information available, and directs attention to its rating recommendation based on the above evidence.  The PEB and the VA chose different coding options for the right shoulder condition, but both assigned a rating of 20%.  The Board determined that IAW VASRD §4.71a, a rating of 20% was appropriate since shoulder abduction was limited (approximately) to shoulder level.  A higher rating of 30% was not warranted, since shoulder motion was not limited to midway between side and shoulder level.  The Board tried to find a path to a higher rating using other codes which could be applied to the right shoulder condition.  The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a significantly disabling shoulder abnormality which would justify a rating higher than 20%.  The “right axillary neuropathy with shoulder impingement” was an integral part of the right shoulder pathology, and IAW VASRD §4.14 (Avoidance of pyramiding), could not be recommended for a separate, additional rating using a neurological code from VASRD §4.124a.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt) and VASRD §4.7 (Higher of two evaluations), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic right shoulder condition, characterized as “Right axillary neuropathy with shoulder impingement.”

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.  In the matter of the chronic right shoulder condition, and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 axillary neuropathy with shoulder impingement	8518-5201	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120606, 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 AR20130010961 (PD201201632)

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