Search Decisions

Decision Text

AF | PDBR | CY2013 | PD-2013-01145
Original file (PD-2013-01145.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-01145
BRANCH OF SERVICE: Army  BOARD DATE: 20141007
SEPARATION DATE: 20030324


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B/Infantryman) medically separated for chronic pain with instability left shoulder and degenerative joint disease (DJD) condition. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. However, he was able to take the alternate Army Physical Fitness Test to meet physical fitness standards. He was issued a permanent U3 profile and able to perform alternate aerobic conditioning exercises and referred for a Medical Evaluation Board (MEB). Left shoulder instability, left shoulder superior labral tear and left shoulder acromioclavicular (AC) joint degenerative arthritis were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated chronic pain with instability left shoulder, with superior labral tear, debrided and AC degenerative joint disease as unfitting, rated 10% with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: The CI submitted a lengthy contention as part of his application in which he mentioned his condition as follows: “I was involved in a Airborne jump where I sustained injuries. I had my first surgery roughly 4 years later. I re-aggravated the initial injury. This surgery was a called a ''mumford." Two years later I had another surgery on that same shoulder due to a bad parachute landing. The surgery was a "cupular shrinkage.” The following year I tore that all loose, again on an Airborne operation When we take into account the other issues that were never addressed it is clear that a rating of at least 40% should have been rendered in my case. In the end it was implied that if you appealed the MEB/PEB decision your rating would go down and the process would be prolonged. I was unaware until recently that Congress had stepped in to right some previous wrongs, therefore I am asking the PDBR to reevaluate my case and the DoD's findings.”[sic]


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 conditions are addressed below; 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 (BCMR).


 RATING COMPARISON :

Service IPEB – Dated 20030116
 VA* - (~4.5 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Pain, Left Shoulder… 5099-5003 10% Left Shoulder Pain… 5299-5203 10% 20021106
Other x 0 (Not in Scope)
 Other x 2 (Not in Scope) 20021106
Combined: 10%
 Combined: 10%
* Derived from VA Rating Decision (VA RD ) dated 200 30410 (most proximate to date of separation ( DOS ) )
ANALYSIS SUMMARY: 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 (DES) 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, operating under a different set of laws. The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The Board acknowledges the CI’s assertions that his disability disposition was rushed and unfair. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.

Chronic Pain, Left Shoulder Instability and Degenerative Joint Disease. The CI suffered at least two falls on his left shoulder, the first in September 1999 and the second in February 2000. There was no evidence of shoulder dislocation or subluxation. After the first injury, he underwent physical therapy (PT) for chronic left AC pain and possible rotator cuff strain. He did not respond to PT, non-steroidal anti-inflammatory drugs (NSAIDS) and had only temporary relief after AC joint injection. Although the primary result was not present for Board review, the evidence supports that a plain film X-ray revealed the left AC joint had arthritic changes; while a magnetic resonance imaging (MRI) study of the left shoulder was normal. The CI subsequently underwent surgical resection of the distal left clavicle. Post-operative PT and NSAIDS again did not result in any significant pain relief. In July 2001, he underwent a left shoulder arthroscopic procedure to address suspected left shoulder instability and labral tear. When that procedure did not result in the CI’s ability to perform his duties he was referred into the DES with a profile that restricted him from push-ups, pull-ups and heavy lifting.

At the VA Compensation and Pension exam performed 4.5 months prior to separation, the CI reported trouble performing overhead work, difficulty sleeping due to the left shoulder discomfort and it was painful to touch along with motion limitation. He said his shoulder felt unstable and described some numbness and tingling of his left shoulder region. The CI also stated the symptoms are constant with flare ups occurring with over use such as using an ax and swinging it a little too vigorously. He required rest for the joint approximately once per month though he did not require bed rest. He took Percocet for pain to help sleep; however, it was discontinued. Currently he takes no medication for this condition.

The narrative summary prepared 4 months prior to separation noted the CI returned to near normal activities until May 2002 when his left shoulder pain returned. Since then he had daily pain, which was associated with heavy activities. He was currently unable to run, jump or perform overhead work. He had pain when lifting greater than 25-30 pounds.

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the following chart:







Left Shoulder ROM (Degrees) Ortho ~6 Mos. Pre-Sep VA C&P ~4.5 Mos. P re -Sep NARSUM 4 Mos. Pre-Sep
Flexion (180 Normal) 180 135 180
Abduction (180) 60 120 - -
Comments: Right Hand Dominant Pos itive apprehension sign Mild atrophy shoulder musculature; Pos itive painful motion; Pos itive mild instability Normal neuro exam; Pos itive apprehension & relocation signs; No pain with cross-body adduction; Normal strength
§4.71a Rating 0% 10%* 10%*
invalid font number 31502 * IAW §4.59 Painful Motion invalid font number 31502
invalid font number 31502
The Board directs attention to its rating recommendation based on the above evidence. The IPEB adjudicated the left shoulder condition by applying the analogous VA Schedule for Rating Disabilities (VASRD) code of 5099-5003 and rated it 10% with specified application of the USAPDA pain policy. The VA applied the analogous VASRD code of 5299-5203 (impairment of the clavicle or scapula) and granted a 10% rating citing, “…evidence of instability, weakness, and pain on VA examination due to deformity of the distal clavicle that result in a mild limitation of arm motion.” There was a surgical excision of the distal clavicle that can be rated analogously under VASRD 5203. There was no dislocation or non-union with loose movement as required for the 20% disability rating; therefore, a 10% rating for non-union without loose movement is appropriate. The ROM evidence does not support the minimum rating under the single limitation of motion code for the shoulder (5201). There was no clinical evidence of ankylosis of the shoulder girdle and no history of shoulder dislocation. The left shoulder MRI was normal but plain film X-rays revealed mild AC joint arthritis that was treated with surgical resection of the diseased clavicle and can be rated under VASRD code 5003 (degenerative arthritis [hypertrophic or osteoarthritis]). Application of VASRD §4.59 (painful motion) was supported by the service treatment records to achieve the minimum 10% rating under code 5003. No code under VASRD §4.71a (musculoskeletal system) would yield a rating greater than 10%. Although the PEB applied the USAPDA pain policy to arrive at its 10% adjudication, application of VASRD standards also arrived at a 10% rating and confer no benefit to the CI. 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 chronic pain, left shoulder instability and DJD.


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 pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the left shoulder pain 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130821, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





                 
XXXXXXXXXXXXXXXXX
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, AR20150002671 (PD201301145)
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

Similar Decisions

  • AF | PDBR | CY2012 | PD2012 01072

    Original file (PD2012 01072.rtf) Auto-classification: Approved

    RECORD OF PROCEEDINGSPHYSICAL DISABILITY BOARD OF REVIEWNAME: XXXXXX BRANCH OF SERVICE: Army CASE NUMBER: PD1201072SEPARATION DATE: 20021213 He was issued a permanent U3 profile (131111) andreferred for a Medical Evaluation Board (MEB).The MEB forwarded no other conditions for Physical Evaluation Board(PEB) adjudication.The PEB adjudicated his shoulder condition as unfitting, rated 0%, with application of the US Army Physical Disability Agency (USAPDA) pain policy. In the matter of the...

  • AF | PDBR | CY2013 | PD-2013-01540

    Original file (PD-2013-01540.rtf) Auto-classification: Denied

    In 2005 I was only medical boarded and rated 20% for my Right Shoulder. The Board considered that following the two surgeries, the CI had painful limited left shoulder ROM with evidence of posttraumatic arthritis on X-rays. Physical Disability Board of Review

  • AF | PDBR | CY2013 | PD2013 00131

    Original file (PD2013 00131.rtf) Auto-classification: Approved

    The MEB forwarded right shoulder pain s/p arthroscopic subacromial decompression and distal clavicle excision to the Physical Evaluation Board (PEB) IAW AR 40-501.The MEB also identified and forwarded left ankle pain as medically acceptable.The PEBadjudicated the chronic right shoulder pain as unfitting, rated 0%with specified application of the US Army Physical Disability Agency (USAPDA) pain policy.The left ankle pain condition was determined to meet retention standards and thereforewas...

  • AF | PDBR | CY2013 | PD-2013-01810

    Original file (PD-2013-01810.rtf) Auto-classification: Denied

    The “persistent left shoulder pain” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.The Informal PEB adjudicated “chronic pain, left shoulder, status post arthroscopic surgery”as unfitting, rated 10%, citing the US Army Physical Disability Agency (USAPDA) pain policy. Post-Separation) ConditionCodeRatingConditionCodeRatingExam Chronic Pain, Left Shoulder5009-500310%Degenerative Changes, Left Shoulder, Status Post Repair of Labral...

  • AF | PDBR | CY2013 | PD-2013-02154

    Original file (PD-2013-02154.rtf) Auto-classification: Approved

    The shoulder and ankle conditions, characterized as “bilateral shoulder pain and chronic left ankle pain”, were the only two conditions forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. However, although limitation of motion was non-compensable, Board members agreed that sufficient evidence of painful motion (VASRD §4.59) was present to support a 10% rating in each shoulder.There was no history of shoulder dislocations or of humerus malunion to support any rating under the...

  • AF | PDBR | CY2013 | PD-2013-02743

    Original file (PD-2013-02743.rtf) Auto-classification: Denied

    Pre-Separation)ConditionCodeRatingConditionCodeRatingExam Left Shoulder Pain (non-dominant)5099-500310%Residuals S/P Left Shoulder Surgeries5201-502410%20061114Other x 2 (Not In Scope)Other x 1 RATING: 10%RATING: 10% *Derived from VA Rating Decision (VARD)dated 20070404(most proximate to date of separation (DOS)). The VA rated the left shoulder pain (residuals, status post left shoulder surgeries X3) at 10% coded 5201-5024 (limitation of shoulder motion - tenosynovitis) citing painful...

  • AF | PDBR | CY2012 | PD-2012-00804

    Original file (PD-2012-00804.pdf) Auto-classification: Denied

    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 Army Board for Correction of Military Records. After his original injury with dislocations of both shoulders, the CI had multidirectional instability and recurrent dislocations of both his right and left shoulders. Based on the condition the CI actually had, the shoulders can be rated either using 5201 for limited ROM or...

  • AF | PDBR | CY2014 | PD-2014-01676

    Original file (PD-2014-01676.rtf) Auto-classification: Denied

    SEPARATION DATE: 20030212 Neck Condition . Right Shoulder Condition .

  • AF | PDBR | CY2012 | PD2012-00166

    Original file (PD2012-00166.pdf) Auto-classification: Approved

    The MEB forwarded: left knee pain, meniscal tear and ACL laxity by orthopedic exam; right shoulder pain, AC separation 1.0cm; left shoulder pain, supraspinatus tendon tear, Grade II SLAP lesion; pain in the left leg s/p femur fracture and intramedullary rod placement; and delayed union of the left femur fracture. The PEB adjudicated chronic pain left knee, right and left shoulders, and left femur s/p injuries conditions as a single unfitting condition, rated 20%, with application of the US...

  • AF | PDBR | CY2012 | PD-2012-01730

    Original file (PD-2012-01730.txt) Auto-classification: Denied

    The left shoulder condition, characterized as “Chronic left shoulder pain,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40- 501. The PEB adjudicated the “Chronic pain, left shoulder, rated as slight/constant” condition as unfitting and rated it 10% IAW the US Army Physical Disability Agency (USAPDA) pain policy. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING...