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AF | PDBR | CY2012 | PD2012 01400
Original file (PD2012 01400.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         case: PD1201400
branch of service: army  BOARD DATE: 20130904
separation date: 20030331


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, SPC/E-4, (54B/NBC Nuclear Biochemical Specialist), medically separated for chronic left shoulder pain with subluxation, right foot pain and low back pain (LBP). The CI did not improve adequately with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB adjudicated the chronic pain of the left shoulder with subluxation, the right foot and low back as a single unfitting condition, rated 20%, with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: “The condition has worsened since release from service. A VA rating has been given but no additional compensation paid on that rating.” The CI elaborated no specific contention in his application.


SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions, left shoulder with subluxation, right foot pain, and LBP will be reviewed. 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.

The Board acknowledges the CI’s information regarding the significant impairment with which his service connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA evidence within 12 months only to the extent that it reasonably reflects the disability at the time of separation.



RATING COMPARISON:

Service IPEB – Dated 20030129
 VA (2 Mos. Post-Separation) – All Effective Date 20030401
Condition
 Code Rating Condition Code Rating Exam
Chronic pain, L shoulder w/subluxation, right foot and low back
 5099-5003 20% Left Shoulder w/Recurrent Instability 5010-5202 20% 20030609
Hallux Rigidus, Right Great Toe 5010-5281 0% 20030609
↓No Additional MEB/PEB Entries↓
 0% X 1 / Not Service-Connected x 1 20030517
Combined: 20%
 Combined: 20%
Left shoulder increased to 30% in November 2008 and the back condition increased from 0% to 40% in October 2008 then reduced to 20% in March 2012. Right toe increased from 0% to 10% in October 2010


ANALYSIS SUMMARY:

Board Approach to PEB Consolidated Rating. The PEB combined the left shoulder with subluxation, right foot and low back conditions under a single disability rating, coded analogously to 5003. Although the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each unbundledcondition can be reasonably justified as separately unfitting in order to remain eligible for rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. To that end, the evidence for the left shoulder with subluxation, right foot and low back conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Left Shoulder Pain with Subluxation. The entrance enlistment physical examination report in 1998 noted a history of left shoulder instability since a football injury in 1997. The right-handed CI required emergency room treatment of an anterior dislocation of the left shoulder in September 1999. He experienced subsequent recurrent left shoulder dislocations (sometimes reduced by the CI), despite physical therapy (PT) and strengthening exercises. In March 2001, an open left shoulder surgery was performed to address the chronic instability. Despite ongoing PT, the CI continued to have recurrent dislocations and declined further surgery. At an orthopedic evaluation on 10 April 2002 (a year prior to separation) the CI reported four instances of shoulder “instability episodes” over the previous 6 months. An orthopedist examination on 6 September 2002 (7 months prior to separation) noted signs of left shoulder instability. Full overhead abduction and flexion were present; guarding during shoulder movement was not mentioned. The assessment was recurrent shoulder instability. Magnetic Resonance Imaging on 2 October 2002 revealed post-operative changes and a Hill-Sachs lesion (damage to the smooth cartilage surface of the humerus due to shoulder dislocation). The commander’s statement specified the shoulder condition in the CI's inability to fully perform his military duties. The narrative summary (NARSUM) examiner on 26 December 2002 (3 months prior to separation) noted that after the shoulder surgery the CI continued to experience recurrent dislocations, though frequency was not described. The exam showed slight atrophy of the left forearm. At the VA Compensation and Pension (C&P) evaluation (2 months after separation), the CI stated he had minimal ability to lift his shoulder for strength type activities. On exam, positive apprehension and relocation signs (tests of instability), and signs positive for rotator cuff impingement (indicative of painful motion) were present. The goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, are summarized in the chart below.
Left Shoulder ROM PT ~4.5 Mo. Pre-Sep VA C&P ~2 Mo. Post-Sep
Flexion (0-180⁰) 170⁰ 140⁰
Abduction (0-180⁰) 170⁰ 140⁰
Comments +instability signs; painful motion
§4.71a Rating 10% or 20%* 10% or 20% * (VA 20%)
               *10% for painful motion; 20% conceding recurrent dislocations and guarding of movement

The Board first considered if the left shoulder with subluxation condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting. The above information was reviewed by the action officer and considered by the Board. Members agreed that the functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to perform his MOS r ating; and, accordingly a separate rating is recommended . The VA assigned a 20% rating under a combined 5010-5202 code (traumatic arthritis; Humerus, other impairment of). The ROM in evidence does not support the minimum rating under the limitation of moti on code for the shoulder (5201), but the Board members agreed a 10% rating was easily supported based on painful motion ( VASRD §4.59). Other pathways to a higher rating were considered . Although the CI did have recurrent dislocations, the Board debated if the “guarding of movement…at shoulder level” stipulation of the 5202 code was sufficiently elaborated in the evidence at hand to warrant a 20% rating under that code. Board members concluded that this evidence was not present . Similarly, under the 5304 code (Group IV muscle function) “moderately severe” impairment justifying a 20% rating was not present. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left shoulder pain with subluxation condition , coded 5299-5201 .

Right Foot Hallux Valgus . The right big toe pain started in December 2001 when the CI hyperextended his right foot while playing basketball . X-rays revealed a hallux valgus deformit y , and bunion vs. soft tissue swelling. Mild degenerative changes were also present. The CI declined elective surgical intervention and pursued conservative treatment with shoe inserts, anti-inflammatory medications, and profile restrictions . The condition was first temporarily profiled for no running, jumping or marching in September 2002 ( 6 months prior to separation), then permanently profiled with the shoulder the following month. The commander’s statement referred to profile restrictions, but did not specify the right foot condition in the CI's inability to fully perform his military duties. An orthopedic examination on 17 September 2002 noted that the hallux valgus deformity was mild. There was some tenderness but ROM was painless. A podiatry follow up examination on 11 December 2002 (3 months prior to separation) reported pain at end ROM . At the NARSUM eva l uation ( 3 months prior to separation) , the CI was taking pain medications only for shoulder and back pain. Examination noted the right hallux valgus deformity and a tender bunion . Gait was not mentioned. At the C&P evaluation (2 months after separation) , the CI complained of foot pain with shoe wear and pain with stepping on things. The e xamination showed a large medial bony growth at the first metatarsophalangeal joint of the great toe. Painful motion was present near the completion of plantar flexion and halfway through extension. Gait was not mentioned.

As noted above, t he Board first considered if the right foot condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. M ember consensus was that, based on the above evidence and mindful of VASRD §4.3 (reasonable doubt) , there was a questionable basis for arguing that it was separately unfitting. The well-established principle for fitness determinatio ns is that they are performance based. The Board majority could not find evidence in the commander’s statement or elsewhere in the service treatment record ( STR ) that documented any significant interference of the right foot condition with the performance of duties at the time of separation, nor were any physical findings documented by the MEB or VA examiners which would logically be associated with significant disability. The Board consensus also noted that there is insufficient evidence in support of a compensable rating for the condition, eve n if were conceded as unfitting ( as confirmed by the VA’s 0% rating ) . The single dissenting member recommended a finding of unfit, and a rating of 10% under a 5299-5003 code. After due deliberation, member consensus was that the evidence does not support a conclusion that the functional impairment from the right foot condition was integral to the CI’s inability to perform his MOS r ating; and, accordingly cannot recommend a separate rating for it.
Low Back Pain . Review of the STR shows one visit for acute LBP in 2000 and one in 2001. The CI next presented on 12 September 2002 ( 6 months prior to separation) complaining of onset of pain that day ; but on 18 September 2002, he stated th e pain had been present for 4 weeks. On 19 September 2002 , the CI requested a medical board. At a PT evaluation on 3 December 2002, the CI stated he had a 2- year history of LBP . At the orthopedic M EB addendum on 11   December, 2002, the CI reported that pain was intermittent and exacerbated by running, prolonged standing or lifting. Examination noted tenderness over the left side and full active ROM of the lumbosacral spine. X-rays revealed sacralization of L5 vertebra. The CI was taking pain m edications for pain due to his s houlder and back. The orthopedist concluded "... Will add lumbar spondylosis to this and decrease his lifting capacity from the 30 pounds states down to 15 [pounds]," and "I doubt he'd be able to do a bicycle PT test because of the low back pain and pain in the shoulder. He is unable to do a walk test." At the C&P evaluation, the CI stated his back pain had been a problem since 2001 and was “ only occasional . ” Examination revealed normal ROM. Except for the final profile during the MEB process , he was not given any profile citing the back pain. The commander ' s statement does not sp ecifically implicate the back.

As noted above, t he Board again first considered if the LBP condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. Members agreed that, based on the above evidence and mindful of VASRD §4.3 (reasonable doubt) , there was a questionable basis for arguing that it was separately unfitting. The well-established principle for fitness determinatio ns is that they are performance based. The Board could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of the LBP condition with the performance of duties at the time of separation, nor were any physical findings documented by the MEB or VA examiners which would logically be associated with significant disability. After due deliberation, members agreed the evidence does not support a conclusion that the functional impairment from the low back condition was integral to the CI’s inability to perform his MOS r ating; and, accordingly cannot recommend a separate rating for it.
The Board notes that its overall rating recommendation (even if the dissenting opinion regarding the hallux valgus condition was conceded) offers no benefit to the CI beyond the PEB’s bundled adjudication; and IAW DoDI 6040.44 may not recommend a rating lower than the PEB’s overall combined rating. Therefore, after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic pain, left shoulder with subluxation, right foot and low back 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 left shoulder with subluxation, right foot pain and LBP conditions was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic pain, left shoulder with subluxation, right foot and low back 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
Chronic Pain Right Shoulder with Subluxation, Right Foot and Low Back 5099-5003 20%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120605, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review



 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB / XXXXXXXXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX , AR20130021920 (PD201201400)

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)

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