RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02078
BRANCH OF SERVICE: Army	BOARD DATE:  20140404
SEPARATION DATE:  20020228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (12B/Combat Engineer) medically separated for a left shoulder problem.  The CI injured his shoulder in October 1999 when he fell off a tower and had an open anterior capsular shift in April 2001.  The shoulder could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB).  The shoulder condition, characterized as “left shoulder pain following stabilization procedure,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic pain, left (non-dominant) shoulder, s/p anterior capsular shift” as unfitting, rated 10% citing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION: The CI writes: “Loss of motion, pain, repeat surgery needed, instability”.

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 and, 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 IPEB – Dated 20020107 | VA - Based on Service Treatment Records (STR)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic Pain, Left (Non-Dominant) Shoulder | 5099-5003 | 10% | Chronic Pain, S/P Anterior Capsular Shift Surgery, L Shoulder | Unknown | 10% | STRs
No Additional MEB/PEB Entries | Other x 1 | STRs
Combined:  10% | Combined:  10%
Derived from VA Rating Decision (VARD) dated 20020326 (most proximate to date of separation [DOS]).

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 his 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 VA Schedule for Rating Disabilities (VASRD) standards, based on severity at the time of separation.

Chronic Pain Left (non-dominant) Shoulder.  The right-handed CI dislocated his left shoulder in October 1999 in a fall off a tower.  Subsequent to that injury he developed instability of the left shoulder joint (multi-directional instability) with recurrent dislocations.  He underwent orthopedic surgery on 30 April 2001 to reinforce and stabilize the shoulder structures.  He was progressing satisfactorily with rehabilitation; however, he apparently re-injured the shoulder catching a weapon that fell off a rack about 4 weeks after surgery.  Orthopedic examination on 9 August 2001 recorded a subjective loose sensation when the left arm was raised up and out and rotated backwards however on examination there was no instability noted.  The orthopedic surgeon commented “popped a suture but no instability noted.”  Orthopedic examination on 15 October 2001, noted there was a probable stitch failure due to catching the weapon and persistent pain preventing military duties.  On examination, there was tenderness in the surgical area.  Abduction was 170 degrees (normal 180) and forward flexion was 170 degrees (normal 180).  Internal and external rotation was mildly limited (fingers to T10 vertebra and 70 degrees respectively).  The orthopedic surgeon recommended referral for an MEB.  The orthopedic MEB narrative summary dictated on 23 October 2001, recorded complaint of left shoulder pain with most activities, especially exertion type activities and working overhead.  On examination, range-of-motion (ROM) was the same as recorded at the 15 October 2001 examination.  Two tests for instability were stated to be equivocal, while three others were negative.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the left shoulder pain condition 10% analogously 5099-5003 with application of the USAPDA pain policy.  The VA also rated the left shoulder pain condition 10%.  The left shoulder ROM in the orthopedic examinations did not attain a minimum rating under the code for limitation of arm motion (5201).  Following surgery, there was some feeling of looseness but no recurrent dislocations or deformity to support a minimum rating under VASRD diagnostic code 5202 other impairment of the humerus (nor loss of the humeral head, nonunion, malunion, fibrous union, deformity, or nonunion).  There was no clinical and/or radiologic evidence for ankylosis (5200) or impairment of the scapula or clavicle (5203) or impairment of muscle function.  The Board agreed a 10% rating was supported for painful motion (§4.59) and functional loss (§4.40) but no route to a higher rating than the 10% adjudicated by the PEB and VA at the time of separation.  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 left shoulder pain 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 discussed above, PEB reliance on the USAPDA pain policy for rating the chronic pain of the left shoulder was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic pain of the left shoulder (non-dominant) 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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131031, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXX, AR20150001809 (PD201302078)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-02078