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AF | PDBR | CY2013 | PD-2013-02316
Original file (PD-2013-02316.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02316
BRANCH OF SERVICE: Army  BOARD DATE: 20140709
SEPARATION DATE: 20050731


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty CPT/03 (35D00/Military Intelligence) medically separated for a right shoulder condition. The shoulder could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB). The shoulder condition, characterized as “persistent right shoulder postoperative pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified one other condition. The Informal PEB adjudicated “chronic pain, right shoulder” as unfitting, rated 0% citing the US Army Physical Disability Agency (USAPDA) pain policy. The remaining condition (right elbow intermittent bursitis) was adjudicated as not unfitting. The CI made no appeals and was medically separated.


CI’s CONTENTION: “I cannot maintain my house or automobiles myself due to damage and unstable nature of my right shoulder. I exprease [sic] pain on a continual daily basis. I cannot lift my child over my head.”


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 shoulder condition is addressed below. No other conditions were within the defined purview of the Board. Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Army PEB – dated 20050607
 VA – (3 mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Right Shoulder Pain 5099-5003 0% Right Shoulder Pain 5299-5203 0% 20051024
Other x 1 (Not in Scope)
 Other x 1 20051024
Combined: 0%
 Combined: 10%
Derived from VA Rating Decision (VA RD ) dated 20 060502


ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his shoulder condition continues to burden him, and the significant impact it has had on his quality of life. It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate members for future severity or potential complications of conditions. That role and authority is granted to the Department of Veterans Affairs (DVA). The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation. The DVA, however, is empowered to periodically re-evaluate conditions, and adjust the disability rating should the degree of impairment change.

Right shoulder pain. In June 2003 while deployed to Iraq, this CI injured his right shoulder. He had surgery on his shoulder in January 2004. After surgery, the shoulder pain persisted and an MEB was initiated. The MEB physical examination (PE) was on 13 May 2005. At that time, there was some tenderness to palpation (TTP) over the right acromio-clavicular (AC) joint. He had full range-of-motion (ROM) and normal muscle strength in the right shoulder. The CI was separated from service in July 2005. Three months later, he had a VA Compensation and Pension (C&P) exam. Once again, PE of the right shoulder revealed some TTP over the right AC joint. He had full ROM, but there was pain with motion. There was no joint laxity. The ROM evaluations which the Board weighed in arriving at its recommendation are summarized below.

Right Shoulder ROM
(Degrees)		 MEB ~ 2 ½ mos . Pre-Sep
(200 50513 )
 VA C&P ~ 3 mos . Post-Sep
(200 51024 )
Flexion (180 Normal) 180 180
Abduction (180) 180 180
Comments Pain, and tenderness Pain with motion
§4.71a Rating 10 % * 10 % *
*10% based on VASRD §4.40 (Functional loss), §4.45 (The joints), and §4.59 (Painful motion) invalid font number 31502

The Board carefully examined all available evidence, and directs attention to its rating recommendation. The Army PEB and the VA chose different coding options for the right shoulder condition, but both assigned a disability rating of 0%. The Board noted the congruence in the two examinations shown above. At both exams, the CI had full ROM of the right shoulder. After a thorough review of the treatment record, the Board determined that the CI’s shoulder condition was essentially non-compensable based solely on the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a codes for the shoulder and arm (5200 through 5203). However; IAW VASRD §4.40, §4.45, and §4.59, a part of the musculoskeletal system which becomes painful on use must be regarded as seriously disabled. A rating of 10% is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint. After reviewing the evidence, all Board members agreed that a rating of 10% was appropriate for the right shoulder condition. The Board tried to find a path to a rating higher than 10%, using other codes which could be applied to the shoulder condition. The other VASRD codes that were considered did not result in a higher rating, since the treatment record did not show sufficient evidence of a disabling shoulder condition which would justify a higher rating. 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 unfitting right shoulder 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. Army PEB reliance on the USAPDA pain policy was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the unfitting right shoulder condition and IAW VASRD §4.40, §4.45, and §4.59; the Board unanimously recommends a rating of 10% and the right shoulder condition is appropriated coded 5299-5203. There were no other conditions within the Board’s scope of review for consideration.
RECOMMENDATION: The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic right shoulder pain, status post shoulder surgery 5299-5203 10%
COMBINED 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131103, 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, AR20150002583 (PD201302316)
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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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