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AF | PDBR | CY2012 | PD2012 01534
Original file (PD2012 01534.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201534   SEPARATION DATE: 20030520
BOARD DATE: 20130509


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E3, (91W10/Medical Specialist), medically separated for chronic left ankle and left shoulder pain. The CI sustained a fracture of his left ankle on 12 January 2002 while running. In August 2002, the CI underwent an arthroscopic loose body removal. He continued to report persistent ankle pain. VA records indicate the CI injured his left shoulder in January 2003 while working out in the gym. 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 left ankle and the left shoulder as a single unfitting condition, rated 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated with a 10% disability rating.


CI CONTENTION: “Chronic left ankle pain, left shoulder pain. Ankle pain is post fracture & arthroscopy. Left shoulder pain is associated with Bursitis. Left ankle fracture 01/12/02. Left Shoulder bursitis 01/03.”


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 unfitting for continued military service or when requested by the CI, those conditions “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. 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 respective Service Board for Correction of Military Records.


RATING COMPARISON:

Service IPEB – Dated 20030410
 VA (4 Mos. Post-Separation) – All Effective Date 20030521
Condition
 Code Rating Condition Code Rating Exam
Chronic Lt Ankle Pain, Lt Shoulder Pain
 5099-5003 10% Bursitis of Lt Shoulder 5019 0% 20030924
Residuals of Lt Ankle FX 5299-5271 0% 20030924
↓No Additional MEB/PEB Entries↓
 0% X 0 / Not Service-Connected x 0
Combined: 10%
 Combined: 0%


ANALYSIS SUMMARY: The PEB combined the left ankle pain and left shoulder bursitis conditions under a single Service disability rating coded analogously to 5003 and rated 10%. The PEB relied on the USAPDA pain policy for not applying separately compensable Veterans Affairs Schedule of Rating Disabilities (VASRD) codes. Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting, and that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a. However, the Board must satisfy the requirement that each “unbundled” condition was unfitting in and of itself; members must be satisfied that each condition recommended for separate rating would have independently resulted in MEB referral and a PEB finding that the member was unfit due to physical disability. The Board exercises the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB. The Board’s initial charge in this case was therefore directed at determining if the PEB’s single combined rating was justified in lieu of separate unfit determinations and ratings. To that end, the evidence for the left ankle pain and left shoulder bursitis conditions are presented separately, with recommendations regarding unfitness, and separate ratings if indicated.

Left Ankle Condition. In January 2002, the CI sustained a left ankle fracture. Despite casting and physical therapy, he continued to experience left ankle pain. In August 2002, the CI underwent a left ankle arthroscopic evaluation with resultant loose body removal. Post operatively the CI reported increased range-of-motion (ROM), but continued pain. The narrative summary (NARSUM) 2 months prior to separation notes ankle pain, worse with running, prolonged walking, and standing; unresolved with activity modification and anti-inflammatory medications. The physical examination demonstrated full active ROM, 5/5 muscle strength, and mild tenderness to palpation at the joint line. At the VA Compensation and Pension (C&P) examination 4 months post separation, the CI reported pain in the left ankle when exercising which improved with rest and the use of Ibuprofen. The physical examination revealed full active ROM, mild synovitis and mild tenderness to deep palpation.

The Board directs attention to its rating recommendation based on the above evidence. The Board first considered if the left ankle condition met the Board’s threshold for separate rating (as elaborated above). The well established principle for fitness determinations is that they are performance-based. Although the functional impairments associated with the chronic left ankle pain were implicated in the commander’s statement and the MEB exam as hindering the CI’s ability to perform the duties of his MOS, the Board placed high probative value on the MEB physical examination demonstrating full ROM and mild objective findings of pain and the PEB’s adjudication of the overall effect of both the left ankle and left shoulder condition as unfitting. The Board also considered the VA examination 4 months post-separation which demonstrated a non-compensable disability evaluation for the left ankle condition. After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from chronic left ankle pain was separately unfitting.

Left Shoulder Condition. The CI injured his left shoulder while at the gym in January 2003 (4 months prior to separation). He was diagnosed with a left shoulder bursitis and treated conservatively with improvement. At the MEB 3 months prior to separation, the CI reported a month long history of left shoulder pain with certain positions. The MEB examination demonstrated tenderness to palpation over the left acromion and pain with abduction. The NARSUM 2 months prior to separation notes that “the left shoulder pain is of a soft tissue nature and should completely resolve in the near future with anti-inflammatories and activity modification.” The physical examination demonstrated full active ROM without tenderness to palpation. Impingement maneuvers were negative. Radiographic evaluations were normal. At the VA Compensation and Pension (C&P) examination 4 months post separation, the CI reported weekly left shoulder pain when working out. The pain was worse with bench presses and improved with rest and the use of ibuprofen. Radiographic and physical examination of the left shoulder were normal.

The Board directs attention to its rating recommendation based on the above evidence. The Board first considered if the left shoulder condition met the Board’s threshold for separate rating (as elaborated above). The service treatment records (STRs) were silent to medical care for the left shoulder bursitis except for the MEB and NARSUM. Although the condition was identified in the commander’s statement and U3 profile, the Board could not find evidence elsewhere in the Service file or the STR that documented any significant interference of performance of duties resulting from the left shoulder bursitis at the time of separation, nor were any physical findings documented by the MEB, NARSUM, or VA examiners which would logically be associated with significant disability. After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from left shoulder bursitis was separately unfitting.

Board members agreed that it was reasonable to surmise that the combined effect of the left ankle and left shoulder conditions rendered the CI unfit. Members agreed, therefore, that there were insufficient grounds for recommending separate left ankle and left shoulder disability ratings in this case. Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the chronic left ankle pain and left shoulder pain conditions was appropriately adjudicated in this case.


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 left ankle and shoulder pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic left ankle pain and left shoulder pain conditions 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 Lt Ankle Pain, Lt shoulder Pain
 5099-5003 10%
COMBINED
 10%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120815, 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 AR20130011064 (PD201201534)

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

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