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AF | PDBR | CY2013 | PD2013 00264
Original file (PD2013 00264.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1300264
BRANCH OF SERVICE: Army  BOARD DATE: 20131018
SEPARATION DATE: 20050131


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (42L/Administrative Specialist) medically separated for a right shoulder condition. During a deployment to Afghanistan in 2003, the CI aggravated a right shoulder injury while loading shelves. She had injured this shoulder during routine activity earlier in the year, prior to deployment. Eventually, the CI underwent arthroscopic surgery on her right shoulder, followed by additional physical therapy and conservative treatment. Despite this, the right shoulder condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB). The CI had been treated for mental health conditions since 2002 and was eventually diagnosed with depression in 2003. At the CI’s request, she was referred for a mental status evaluation (MSE) in 2004. Subsequent to this evaluation, she was never profiled for a mental health condition nor did the MEB recognize any mental health condition in its narrative summary (NARSUM) assessment of the CI or during the MEB proceedings. The MEB did document the CI’s depression on the MEB physical examination form (DD Form 2808). In addition, the CI’s commanding officer, via his commander’s performance statement, documented the CI”s “weekly treatments for depression.” The CI’s right shoulder condition, characterized as “chronic right shoulder pain, status post right shoulder impingement and subacromial decompression” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “chronic right shoulder pain” as unfitting, rated 0% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “The VA determined I was 100% disabled due to depressive disorder, total vaginal hysterectomy with removal of left salpingooophorectomy, irritable bowel syndrome, residuals, arthroscopy RT shoulder with residual impingement syndrome.”


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. In addition, the CI was notified by the Army that her case may eligible for review of the military disability evaluation of her mental health condition s in accordance with Secretary of Defense directive for a comprehensive review of Service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose mental health diagnoses were changed during that process. The CI is eligible for PDBR review of her conditions evaluated by the PEB and elected review by the PDBR. In accordance with Secretary of Defense directive for a comprehensive review of mental health diagnoses that were changed during th e Disability Evaluation System (DES) process, the applicant’s case was reviewed with regard to mental health diagnosis change, fitness determination, and rating of unfitting mental health diagnoses in accordance with the VASRD §4.129 and §4.130. The CI’s r equested right shoulder condition was also reviewed under the purview of the B oard. The requested vaginal hysterectomy and irritable bowel syndrome were not recognized by the MEB or PEB and are therefore not within the board’s scope of review. 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 her service-connected condition continues to burden her; but, must emphasize that the 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 (DVA), operating under a different set of laws. The Board considers DVA 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 likewise acknowledges the CI’s contention for rating of her depressive disorder which was not recognized by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition, by preponderance of evidence, was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD, and based on the degree of disability evidenced at separation, will be recommended.


 RATING COMPARISON :

Service IPEB – Dated 20041209
 VA - (3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Right Shoulder Pain 5021 0% Residuals, Arthroscopy Right Shoulder w/ Impingement Syndrome 5201 20% 20050412
Depression No Entry Depressive Disorder 9435* 10% 20050412
No Additional MEB/PEB Entries
 Other x 8 20050412
Combined: 0%
 Combined: 60%*
Derived from VA Rating Decision (VA RD ) dated 200 50505 ( most proximate to date of separation [ DOS ] ).
* VARD 20060327 increased DC 9435 to 30%, combined to 70% effective 20051013; VARD 20071214 changed DC 9435 to 9432 (Bipolar D/O) and increased to 100%, combined 100% effective 20070501.


ANALYSIS SUMMARY:

Right Shoulder Condition. The MEB physical exam was performed on 14 October 2004, approximately 2 months after arthroscopic subacromial decompression of her dominant right shoulder. Examination noted an inability to raise the right shoulder “above parallel.” On 26 October 2004, the NARSUM examiner noted that the CI had not progressed well, and experienced chronic pain in association with adhesive capsulitis that developed despite physical therapy. An orthopedic exam on 6 December 2004 (2 months prior to separation) stated: “She got about 110 degrees of forward flexion and abduction before she gets pain.” At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported that she was regaining some of the motion of her right shoulder. She claimed no difficulty in managing personal hygiene. During the exam, pain was noted to not be present during the active range-of-motion (ROM), but did occur at the extremes of motion. Right shoulder X-ray was normal. She informed another C&P examiner that she had no difficulty performing simple household chores. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.
invalid font number 31502



Right Shoulder ROM
(Degrees)
 NARSUM ~3 Mo. Pre-Sep VA C&P ~3 Mo. Post-Sep
Flexion (180 Normal)
 110 120
Abduction (180)
 110 90
Comments
 +tenderness
§4.71a Rating
 10% 20%

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 0% rating under the 5021 code (myositis); and stated “does not meet minimal rating criteria” as a rationale, presumably referring to the ROM criteria to which 5021 defaults. The VA assigned a 20% rating based on abduction of 90 degrees. Board members agreed that a 10% rating was easily supported based on painful use (§4.40) or painful motion (§4.59), but considered a 20% rating under the 5201 code (arm, limitation of motion of). The VASRD §4.71a threshold for compensable ROM impairment is “shoulder level,” i.e., 90 degrees. The MEB examiner documented the CI’s inability to “lift R shoulder above parallel or internal rotation secondary to pain,” while the VA examiner confirmed a similar ROM in one plane (abduction) but higher in the other (flexion). An independent orthopedist documented motion clearly above this level and this was confirmed by the NARSUM examiner’s goniometric measurements. The ability to perform daily hygiene and chores was also deliberated. The Board debated all of the evidence, and agreed that ROM criteria for a 20% rating were not met, and that the clinical picture was more accurately depicted by the 10% rating. There was no evidence of dislocation, deformity, malunion or loose movement supporting a higher rating under the 5202 or 5203 codes (other impairment of humerus, impairment of clavicle or scapula). 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 right shoulder condition, coded 5021.

Contended Depressive Disorder In Accordance With Mental Health Review. The Board considered the appropriateness of changes in mental health diagnoses, PEB fitness determination, and if unfitting, whether the provisions of VASRD §4.129 were applicable with a disability rating recommendation in accordance with VASRD §4.130. The contended condition, which was not adjudicated by the PEB, was depressive disorder. The Board’s threshold with respect to recommending a fitness determination 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.

Review of the service treatment record shows treatment with counseling and medication in 2002 for depression symptoms. Diagnoses at that time included major depressive disorder, adjustment disorder and “rule-out PTSD.” However, posttraumatic stress disorder (PTSD) was never formally diagnosed. A Report of Mental Status Evaluation on 21 October 2004 noted “significant symptoms of depression and anxiety secondary to occupational problems and physical pain;” and concluded that retention requirements for adjustment disorder with depressed mood were met. The MEB separation exam (DD Form 2808) listed depression as a diagnosis. The CI was never hospitalized while in the service for a mental health condition. A VA examiner, 2 months after separation, assigned a diagnosis of depressive disorder, not otherwise specified.

As noted above, the case was referred for review regarding whether there was a change in mental health diagnosis during the disability evaluation process; and if so, was the change in mental health diagnosis to the CI’s disadvantage. Although newly reported history and symptoms at the time of a C&P examination performed 11 months after separation supported a PTSD diagnosis, the Board concluded that the diagnoses of depression and of adjustment disorder at the time of the MEB and PEB were not incorrect. In addition, based on the evidence at the time of processing through the disability evaluation system, no mental health diagnoses were changed to the CI’s possible disadvantage. The Board determined therefore that this case does not appear to meet the criteria for the Terms of Reference.

The Board next considered whether the CI’s mental health condition at the time of separation was unfitting for continued military service. Although a single diagnosis was not uniformly applied by different examiners near the time of separation, no mental health condition was profiled or was judged to fail retention standards. On 21 September 2004, the commander requested a non-emergency mental health evaluation for depression, and the commander’s statement on 18 October 2004 mentioned the diagnosis and treatment. However, the commander’s statement did not implicate it as a hindrance to occupational functioning. In fact, the commander noted the CI’s service “with distinction” and specifically annotated how the “physical nature of her job” hindered her performance. This condition was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any mental health condition significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a determination of unfit for this condition and so no additional disability rating is recommended.


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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the right shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5021 IAW VASRD §4.71a. In the matter of the contended depressive disorder condition, the Board unanimously agrees that it cannot recommend it for additional disability rating. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Chronic Right Shoulder Pain 5021 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130507, 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 AR20130018493 (PD201300264)
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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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