RECORD OF PROCEEDINGS
                     PHYSICAL DISABILITY BOARD OF REVIEW

NAME:
            BRANCH OF SERVICE:  Army
CASE NUMBER:   PD1100739                                          SEPARATION
DATE:  20031024
BOARD DATE:  20120209


SUMMARY OF CASE:  Data extracted  from  the  available  evidence  of  record
reflects that this covered individual  (CI)  was  a  Reserve  PFC/E-3  (88M,
Motor Transport Operator),  medically  separated  for  left  shoulder  pain.
While at basic combat training (BCT), the CI fell from an  obstacle  on  the
obstacle course and had a posterior dislocation of  his  shoulder.   He  did
not respond adequately to treatment and was unable  to  perform  within  his
Military Occupational Specialty (MOS) or meet  physical  fitness  standards.
He was issued a permanent U3 profile  and  underwent  a  Medical  Evaluation
Board (MEB).  He was found to have recurrent posterior subluxation and  left
shoulder  and  AC  joint  arthrosis.   He  was  referred  to  the   Physical
Evaluation Board (PEB) as medically unacceptable IAW AR  40-501.   No  other
conditions appeared on the MEB’s submission.  Other conditions  included  in
the Disability Evaluation System (DES) packet will be discussed below.   The
PEB adjudicated the left shoulder condition as unfitting, rated at 0%;  with
application of the US Army Physical Disability Agency (USAPDA) pain  policy.
 The CI made no appeals, and was medically  separated  with  a  0%  combined
disability rating.


CI  CONTENTION:   The  CI  states:   “See  medical  records-conditions   for
shoulder and back continuously bother  me  and  the  VA  determined  me  30%
disabled.”


RATING COMPARISON:

|Service IPEB – Dated 20030910  |VA (1.5 Mo. After Separation) – All     |
|                               |Effective Date 20031025                 |
|Condition                      |Code             |Rating |Condi|Code   |
|                               |                 |       |tion |       |
|Combined:  0%                  |Combined:  20%*                         |


* Code  changed  to  5010-5202  and  increased  to  20%  effective  20050810
(combined 30%)


ANALYSIS SUMMARY:   The  military  services,  by  law,  can  only  rate  and
compensate for those conditions that  were  found  unfitting  for  continued
military service based on the severity of  the  condition  at  the  time  of
separation  and  not  based  on  possible  future  changes.   However,   the
Department of Veterans’ Affairs (DVA), operating under a  different  set  of
laws, can rate and  compensate  all  service  connected  conditions  without
regard  to  their  impact  on  performance  of  military  duties,  including
conditions developing after separation that are direct  complications  of  a
service connected condition.  The DVA can also increase or decrease  ratings
based on the changing severity of each condition  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  VASRD
standards, as well as the fairness of PEB fitness adjudications at the  time
of  separation.   The  Board’s  threshold   for   countering   DES   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.

Left Shoulder Condition.  The CI was right hand dominant.   There  were  two
goniometric   range-of-motion   (ROM)   evaluations   in   evidence,    with
documentation of additional ratable criteria, which  the  Board  weighed  in
arriving at its rating recommendation.

|Goniometric ROM-Left |MEB ~2 Mo. Pre-Sep |VA C&P ~ 2 Mo. After-Sep    |
|Shoulder             |(20030806)         |(20031209)                  |
|Flexion (0-180)      |150⁰               |120⁰                        |
|Abduction (0-180)    |110⁰               |“90⁰/180⁰”                  |
|Comment              |TTP AC joint; Inter|Posterior pain with ROM;    |
|                     |& ext rotation ~   |“sliding of the joint in the|
|                     |40⁰; “posterior    |acrcmioclavicular area”; +  |
|                     |instability on     |crepitance; pain at ROM.    |
|                     |exam.  “I cannot   |                            |
|                     |dislocate him, but |                            |
|                     |he can sublux his  |                            |
|                     |shoulder           |                            |
|                     |posteriorly.”      |                            |
|§4.71a Rating        |10%-20% (PEB 0%)   |10%-20% (VA 10%)            |

The CI suffered left shoulder pain after a fall during combat training  with
radiographic evidence of posterior dislocation of  that  shoulder.   He  was
taken to a local ER where he had a closed reduction (no  surgery).   He  was
treated conservatively and was  able  to  complete  his  combat  traing  and
graduated in June 2002.  At that time, he was  activated  and  continued  to
have left shoulder  pain  and  intermittent  posterior  subluxation  of  the
shoulder.  The MEB exam documented and diagnosed  posterior  instability  on
his left shoulder with AC joint arthrosis  with  ROMs  charted  above.   The
commander’s statement indicated “he is currently  unable  to  lift  his  arm
above his shoulder and has considerable amount of pain.”

The VA exam two months post-separation indicated crepitus, laxity in the  AC
joint, and pain limited motion.  ROM, as documented  in  the  C&P  exam  was
open to interpretation, and the shoulder exam is excerpted below:


  “Left shoulder forward  elevation  120  degrees,  backward  extension  to
  approximately 30 degrees, abduction 90/180 degrees, and  adduction  30/30
  degrees.  With the range of notion he indicates  pain  in  the  posterior
  aspect.  There is noted sliding of the  joint  in  the  acrcmioclavicular
  area.  He indicates it is a sharp pain if he attempts to go beyond ranges
  of motion of the left. Passive range of motion is  the  same.   There  is
  also evidence of crepitance.”


The VARD narrative indicated abduction of 90⁰, but it is  as  likely  to  be
pain onset of 90⁰ and completed active abduction  to  180⁰.   The  VA  rated
this exam at 10%.  A VA exam remote  from  separation,  at  24  months  post
separation, indicated forward painful  flexion  to  140⁰  and  abduction  to
110⁰, with new symptoms of shoulder dislocations twice per week.   This  was
adjudged post-separation worsening.

The Board deliberated  based  on  the  data  above.   Both  exams  indicated
limited motion of the shoulder with the VA exam specifying  painful  motion.
The VA exam specificed 90⁰ was not considered an active ROM  limit  as  just
described.  The commander’s statement was the sole  support  for  functional
limitation, IAW VASRD §4.40;  of  arm,  limitation  of  motion  at  shoulder
level, and was not supported by any goniometric  ROMs  or  treatment  notes.
The examiner’s indication of subluxation without ability  to  dislocate  was
adjudged as not being to the level  of  frequent  dislocations.   After  due
deliberation, considering all of the evidence  and  mindful  of  VASRD  §4.3
(reasonable doubt), and  §4.59  (painful  motion)  the  Board  recommends  a
separation rating of 10% for the shoulder condition.

Other Contended Conditions.  The CI’s application asserts  that  compensable
ratings should be considered for his back  condition.   This  condition  was
reviewed by the action officer and considered by the Board.   There  was  no
evidence  for  concluding  that  this   condition   interfered   with   duty
performance to a degree that could be argued as unfitting.  The  commander’s
statement did not mention the back condition and the back condition was  not
profiled.  There was no evidence for  concluding  that  the  back  condition
interfered with duty performance  to  a  degree  that  could  be  argued  as
unfitting.  The Board determined therefore that the back condition  was  not
subject to service disability rating.

Remaining Conditions.  Several additional non-acute  conditions  or  medical
complaints  were  also  documented.    None   of   these   conditions   were
significantly clinically or occupationally active  during  the  MEB  period,
none carried attached profiles, and none were implicated in the  commander’s
statement.  These  conditions  were  reviewed  by  the  action  officer  and
considered by the Board.  It was determined that none  could  be  argued  as
unfitting and subject  to  separation  rating.   No  other  conditions  were
service connected with a compensable rating by the VA within  12  months  of
separation or contended by the CI.  The Board therefore  has  no  reasonable
basis for recommending any additional unfitting  conditions  for  separation
rating.


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  left  shoulder  pain
condition, the Board, by a vote of 2:1,  recommends  a  rating  of  10%  IAW
VASRD §4.71a.  The single voter for discent (who  recommended  20%)  elected
not to submit a minority opinion.  In the matter of the  back  condition  or
any other medical conditions eligible for  Board  consideration,  the  Board
unanimously agrees that it  cannot  recommend  any  findings  of  unfit  for
additional rating at separation.


RECOMMENDATION:  The Board recommends that the CI’s prior  determination  be
modified  as  follows  and  that  the  discharge  with  severance   pay   be
recharacterized to reflect permanent disability retirement, effective as  of
the date of his prior medical separation:

|UNFITTING CONDITION                             |VASRD CODE  |RATING  |
|Left Shoulder Pain                              |5299-5010   |10%     |
|COMBINED    |10%     |


The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20110902, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record


                 President
                 Physical Disability Board of Review
SFMR-RB


MEMORANDUM FOR Commander, US Army Physical Disability Agency

SUBJECT:   Department  of  Defense  Physical  Disability  Board  of   Review
Recommendation


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 rating to 10% without  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
            Deputy Assistant Secretary
             (Army Review Boards)