RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1302632
BRANCH OF SERVICE:  Army	BOARD DATE:  20140507
SEPARATION DATE:  20090105

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (94M/Radar Repairman) medically separated for right shoulder dislocations.  The CI underwent right shoulder surgery for recurrent dislocation prior to his enlistment, which was noted on his entrance exams.  Shoulder dislocations recurred after service entry, requiring a surgical repair in September 2007 and a revision in January 2008.  Following surgery, he underwent extensive physical therapy.  Despite surgical intervention and therapy, the right shoulder 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 U3S1 profile and referred for a Medical Evaluation Board (MEB).  History of multiple right shoulder dislocations status post superior labral anterior posterior repair and revision was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the right shoulder condition as unfitting, rated 10%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his 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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20081020 | VA - (2.5 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Right Shoulder Dislocations | 5099-5003 | 10% | Right Shoulder Dislocation w/Labral Tear | 5201 | 20% | 20090325
No Additional MEB/PEB Entries | Other x 5 |
Rating:  10% | Combined Rating:  50%
Derived from VA Rating Decision (VARD) dated 20090423 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Shoulder Injury Condition.  Prior to entry in the service, the right-hand dominant CI underwent successful surgical intervention for recurrent right shoulder dislocations.  He was cleared by an orthopedist for this issue prior to entry.  However, soon after entry dislocations recurred and further surgery was performed in September 2007.  Due to a subsequent re-injury from a fall 6 weeks post-operatively, an additional revision surgery was performed in January 2008.  Despite extensive physical therapy, the CI continued to experience right shoulder pain.

On 25 August 2008 (4 months prior to separation), an orthopedist reported that the CI’s complaint was ongoing pain.  Examination noted no shoulder tenderness and a negative apprehension test (a sign of shoulder instability).  The narrative summary (NARSUM), 3 months prior to separation, noted a complaint of chronic, constant, sharp, stabbing pain of the right anterior shoulder that radiated to the right neck and upper arm.  Pain was exacerbated by right shoulder movement and lifting greater than 10 pounds.  Rest, ice and medication were somewhat helpful.

At the VA Compensation and Pension (C&P) exam 2 months after separation, the CI reported that his general activities included housework, stacking wood, exercising with a “Total Gym,” and fishing and hunting.  Current symptoms included daily pain exacerbated by activity, weakness, stiffness and a catching sensation at shoulder level.  He denied any dislocations since his last surgery and did not use a brace.  Examination showed crepitus throughout right shoulder range-of-motion (ROM).  The examiner stated: “Repetition is likely to be additionally limited on flexion 0-90 degrees; abduction 0-90 degrees.”  However, there was no evidence that ROM was actually tested after repetition.  The goniometric 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)

MEB ~ 3.5 Mos. Pre-Sep

VA C&P ~ 2.5 Mos. Post-Sep

Flexion (180 Normal) | 170 | 155
Abduction (180) | 160 | 130
Comments | +tenderness, painful motion | +tenderness, painful motion
§4.71a Rating | 10% | 10% (VA 20%)

The Board directs attention to its rating recommendation based on the above evidence.  The unfitting shoulder condition was designated as existing prior to service (EPTS) by the PEB, but no deduction was applied.  The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis) IAW VASRD §4.59 (painful motion).  The VA’s 20% rating under the 5201 code (limitation of arm motion) assumed limitation “at shoulder level” (90 degrees from the side), but the ROM at the C&P exam was not consistent with this degree of limitation.  The Board agreed that the ROM in evidence was non-compensable and that sufficient evidence of painful motion was present to support the PEB’s cited rationale.  Board members debated the application of VASRD §4.45 in this case, which allows for the next higher rating if evidence of additional functional loss after repetitive motion is evident, but agreed that available evidence did not support that approach.  Finally, although the CI had a history of recurrent shoulder dislocations, there was no evidence of recurrence after the final surgery.  Examination confirmed no evidence of instability.  Therefore, a higher rating under the 5202 code (other impairment of humerus with recurrent dislocation) was not justified.  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 Mental Health Conditions.  Review of the entire service treatment record found one outpatient entry (primary care) on 15 August 2008 that rendered an MH diagnosis.  A list of “active medications” at that visit included a prescription for an antidepressant previously written in September 2007; however all refills were unfilled and the CI was not currently taking the medication.  The examiner noted that the CI had previously been treated for alcohol detoxification as an inpatient.  Current complaints were of anxiety and depression, decreased concentration and social withdrawal.  Suicidal and homicidal thinking were not present.  The mental status exam was unremarkable.  The examiner rendered a diagnosis of depression and prescribed an antidepressant that was different from three previous anti-depressants the CI stated he had taken.  The CI was advised to “continue therapy in mental health.”

The commander’s statement on 28 August 2008 (4 months prior to separation) reported that the CI worked a full duty day, maintained attention and focus, communicated effectively and related well to others.  Only the shoulder condition was implicated in MOS duty performance impairment.  On the separation exam (DD Form 2808) the CI wrote that he had “anxiety and depression,” had received counseling for alcohol use and was taking one antidepressant medication.  The examiner acknowledged a history of “anxiety and depression” which was currently under treatment with an antidepressant.  The profiling section of the separation exam (DD Form 2808) on 17 September 2008 listed a diagnosis of depression, and assigned an S1 profile.

A VA C&P exam on 7 April 2009 (3 months after separation) recorded a complaint of irritability and anxiety prior to sleeping (taking the form of feeling like he would throw up), inconsistent difficulty remembering dates and panic attacks two or three times per day.  He also endorsed social withdrawal and was unemployed for non-psychiatric reasons.  The examiner found one record entry which indicated a range of problems including major depression, adjustment disorder and alcohol abuse; but there were “no substantiating statements as to how these diagnoses were arrived at.”  Based on the examiner’s evaluation, it was concluded that sufficient evidence was present to support Axis I diagnoses of alcohol abuse and nicotine abuse, but no other mental health diagnosis.

The Board considered the appropriateness of changes in the MH diagnoses, whether the provisions of VASRD §4.129 were applicable, and a disability rating recommendation in accordance with VASRD §4.130.  Because the separation examination listed a diagnosis of anxiety and depression, but the NARSUM, the MEB and the PEB listed no MH diagnosis, the Board concluded the MH diagnosis was changed or eliminated in the disability evaluation process and therefore met the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board next considered whether any mental condition was unfitting for continued military service.  The Board’s threshold for recommending a not-unfit determination requires a preponderance of evidence.  All Board members agreed that evidence of the record reflected minimal occupational impairment on the basis of any MH related symptoms.  No MH condition was profiled, implicated in the commander’s statement or judged to fail retention standards.  This was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any MH condition 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 determination of unfit for any MH condition; and therefore, no disability ratings can 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.  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 injury condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of any contended MH condition, the Board unanimously recommends no additional disability rating.  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 20131210, 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 XXXXXXXXXXXXXXXXXX, AR20140014467 (PD201302632)

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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

PD1302632