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AF | PDBR | CY2014 | PD-2014-00731
Original file (PD-2014-00731.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2014-00731
BRANCH OF SERVICE: Army  BOARD DATE: 20150422
SEPARATION DATE: 20040727


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Wheel Vehicle Repairer) medically separated for degenerative joint disease (DJD) of the right elbow and chronic right shoulder pain. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty but he was authorized to perform an alternate physical fitness test. He was issued a permanent U3 profile and referred for a Medical Evaluation Board (MEB). The right elbow and shoulder conditions, characterized as “chronic DJD of his right elbow, status post radial head resection” and “chronic shoulder pain from AC joint arthrosis, status post left distal clavicle excision” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition (“status post ganglion cyst excision, right wrist”) for PEB adjudication. The Informal PEB (IPEB) adjudicated “chronic degenerative joint disease of the right elbow” and “chronic right shoulder pain” as unfitting, but did not rate them as the conditions were determined to have existed prior to service (EPTS). The IPEB likely applied the Veterans Affairs Schedule for Rating Disabilities (VASRD) to these ratings. The remaining condition was determined to be not unfitting . The CI appealed to the Formal PEB (FPEB), which increased the shoulder rating to 0% finding it permanently service aggravated and affirmed the IPEB findings regarding the unfitting right elbow and not unfitting right wrist and was medically separated.


CI CONTENTION: “I was found unfit on R should when condition started w/ R Elbow. Medical Board was confused on situation. I was found unfit on Elbow witch was found --- But R Should was 0%. The VA found Elbow at 20% and now is 60% The origonl [sic] injury to my R Elbow was 1991 in the R Army the The PEB or MEB that discharged me said it was prior to active duty and they would not listen I was regullar Army from 1986 thru 1991”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.
RATING COMPARISON :

Service FPEB – Dated 20040628
 VA - (~2 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Right Shoulder Pain 5003 0% Arthritis Of The Right Shoulder Status Post Excision Of
The Distal Third Of The Clavicle		 5003-5201 20% 20041001
Chronic Degenerative Joint Disease of the Right Elbow 5003 ---% Arthritis Right Elbow With Resection Of The Radial Head 5003-5206 10% 20041001
Other x 1 (Not in Scope)
 Other x 13
RATING: 0%
 RATING: 40%
Derived from VA Rating Decision (VA RD ) dated 20050527 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Chronic Degenerative Joint Disease of the Right Elbow. The narrative summary (NARSUM) notes the CI had a long history of dominant right elbow problems. Notes in the service treatment record (STR) indicated that the CI had elbow surgery for DJD in September 1990. An orthopedic note from 10 July 1991 indicated that the CI still had stiffness and lacked a few degrees of extension and was judged to be at maximal medical improvement. An Army discharge physical on 18 August 1991 indicated the CI continued with elbow pain and stiffness and lacked 5 degrees of extension. The CI entered a period of active duty as a National Guard on 10 February 2003. At a primary care visit on 14 April 2003 the CI reported that the day before he felt and heard a “snap” and experienced sudden right elbow pain while throwing a football. Elbow X-rays noted the prior surgery and DJD and a questionable non-displaced fracture of the coronoid process of the radius, but the orthopedic evaluation the same day noted the X-rays did not show an acute fracture. The examiner noted that since the 1990 elbow surgery the CI had not experienced significant elbow problems, but had experienced sudden intense pain while throwing the football. There was tenderness of the inner aspect of the elbow and markedly reduced range-of-motion (ROM) without any instability. The pain and reduced extension continued and magnetic resonance imaging (MRI) scan was performed on 24 June 2003 to evaluate for ligament damage and none was found. The apparent diagnosis was DJD. A diagnostic arthroscopy was performed in August 2003 and showed Grade II/III chondrosis (cartilage damage) and moderate amount of scar tissue. At a follow-up visit the CI’s elbow ROM was extension-flexion of 25-95 degrees (normal 0-145 degrees) with a supination-pronation arc of 50-60 degrees (normal 165), with pain. The CI was advised to work on ROM at home and seemed to improve for a time, but an orthopedic evaluation dated 6 January 2004 noted “continued and progressive problems with his elbow.” The examiner indicated that the CI could not continue to work as a mechanic and would eventually need a total elbow replacement. A primary care evaluation on 14 June 2004, a month prior to separation, noted the elbow lacked 5-10 degrees of extension and lacked 50% of supination (normal 85). The examiner noted very decreased elbow ROM and function. The CI was prescribed sleep medication and topical and oral pain medications for chronic elbow pain and was referred to pain management.

At the MEB examination on 11 February 2004, 6 months prior to separation, the CI reported right elbow pain. The MEB physical exam noted well healed scars over the elbow with painful ROM of 10 to 120 degrees, supination of 40 degrees and pronation of 40 degrees (normal 80 degrees). Elbow X-rays reportedly showed DJD. The examiner noted that most of the CI’s pain was from his elbow.

At the VA Compensation and Pension (C&P) examination dated 1 October 2004, 2 months after separation, the CI reported right elbow pain. On exam the CI was noted to wear a right elbow brace. Elbow ROM was reported as extension-flexion of 0-130 degrees, with normal pronation and supination. Elbow X-rays taken 2 September2004 noted the surgical changes without other abnormality.

The Board direct ed attention to its rating recommendation based on the above evidence. The FPEB adjudicated the elbow condition as EPTS and not service aggravated and therefore not eligible for disability rating. The VA rated the elbow condition 10%, coded 5003-5206 (limited forearm extension with degenerative arthritis) . The Board’s main charge regarding the elbow condition is evaluation of the PEB’s adjudication that it was EPTS and not service aggravated, and therefore not ratable. However, a pres umption of service aggravation , defined in DoDI 1332.38 as “the permanent worsening of a pre-Service medical condition over and above the natural progression of the condition caused by trauma or the nature of Military Service , ” may only be overcome by clear and unmistakable evidence that the natural progression of a pre-existing condition was unaltered by any consequence of military service. The guidance for conceding service aggravation, applicable to the PEB's determination and to the Board's recommendation regarding its fairness, is excerpted below from DoDI 1332.38.

The presumption that a disease is incurred or aggravated in the line of duty may only be overcome by compelling evidence or medical judgment that the disease was clearly neither incurred nor aggravated while serving on active duty or authorized training. Such medical evidence or judgment must be based upon well-established medical principles, as distinguished from personal medical opinion alone.

E2.1.1 defines accepted medical principles as fundamental deductions, consistent with medical facts that are so reasonable and logical as to create a virtual certainty that they are correct.

The Board noted that the PEB Form 199 acknowledged that the CI reported an injury to his elbow while playing football but since no additional diagnosis was made other than degenerative arthritis, the PEB concluded that this was part of the natural progression of the CI’s DJD and there was no evidence of “permanent service aggravation.” However, the Board noted that the evidence supports that the CI had not been having significant problems with his elbow since his remote surgery in 1990 until the reported injury in April 2003 . Member consensus was that the PEB did not meet the DoDI 1332.38 threshold to overcome the presumptions of service aggravation of the elbow condition. Therefore, the Board concluded that the unfitting elbow condition was eligible for service disability rating and considered its rating.

The Board agreed that the evidence in record supports a 10% rating with multiple §4.71a codes including 5003 for painful limited joint ROM with evidence of DJD or with a ROM code IAW §4.59 (painful motion) for painful motion. The Board reviewed to see if a higher evaluation was achieved with any coding approach. There was no evidence of limited flexion or extension sufficient to provide a higher rating based on ROM alone, flexion limited to 100 degrees and extension limited to 45 degrees, ankylosis, impairment of the elbow with marked varus or valgus deformity, or nonunion of the radius or ulna. The Board finally considered if there was evidence of pronation “lost beyond last quarter of arc, hand does not approach full pronation” to support a 20% rating coded as 5213 (limited pronation). The ROM evaluations in evidence were variable. The C&P examination, 2 months after separation, noted normal elbow ROM, except for mildly limited flexion. Members questioned the C&P near normal ROM values, given the body of evidence in the STR over more than decade which noted limited extension and the post-arthroscopic ROM in service, which at three evaluations consistently noted very impaired forearm ROM. Thus, the Board provided the MEB examination and the primary care exam a month before separation greater probative value than the C&P exam. At the MEB examination the CI’s pronation was noted to be 40 degrees out of a normal 80 degrees. At a primary care evaluation after the MEB and before separation the examiner noted full flexion, mildly limited extension, but supination limited by 50%, and noted very decreased ROM and function of the elbow, but did not specifically document pronation. The Board concluded from this documentation that the comment regarding very decreased ROM likely referenced limited rotational movement of the forearm, since flexion was full and extension only mildly limited. At the earlier MEB examination which measured pronation, it was 50% of normal, which is more limited than “ lost beyond the last quarter of arc.” The Board opined that in this case with consideration of VASRD §4.3 (Reasonable doubt) and §4.7 (Higher of two evaluations) the weight of evidence in the record supports a 20% rating coded as 5213 (Impairment of supination or pronation). After due deliberation, considering all of the evidence and mindful of VASRD §4.3 and §4.7, the Board recommends a disability rating of 20% for the elbow condition.

Chronic Right Shoulder Pain. The NARSUM notes the CI reported shoulder pain since April 2003 and the orthopedic assessment was acromioclavicular (AC) joint arthritis. A right shoulder MRI on 3 November 2003 noted AC arthritis and some mild rotator cuff tendinitis. Notes in the STR indicated the CI was evaluated by an orthopedic surgeon on 21 November 2003 and had surgery with excision of the distal clavicle on 2 December 2003. Shoulder ROM 2 weeks after surgery was flexion of 165 degrees (normal 180) and abduction of 160 degrees (normal 180). An orthopedic follow-up on 30 April 2004 noted that the CI continued to have some shoulder crepitus and pain.

At the MEB examination on 11 February 2004, 6 months prior to separation, the CI reported chronic right shoulder pain. The MEB physical exam note full ROM with tenderness over the AC joint.

At the VA C&P examination on 1 October 2004, 2 months after separation, the CI reported right shoulder pain. Shoulder ROM was flexion of 140 degrees and abduction of 120 degrees. Shoulder X-rays on 2 September 2004 noted the surgical changes without other abnormality.

The Board directed attention to its rating recommendation based on the above evidence. The PEB rated the shoulder condition 0%, coded 5003 and the VA rated it 20%, coded 5003-5201 (limited arm flexion with degenerative arthritis). The Board agreed the evidence in record supports a 10% rating coded according to 5003 rating criteria based upon imaging evidence of arthritis in a major joint with painful ROM. The Board reviewed to see if a higher rating was achieved with any applicable code. There was no evidence of arm motion limited “at shoulder level,” which by Board practice is taken to be 90 degrees of flexion or abduction. Additionally there was no ankyloses, impairment of the humerus, or evidence of clavicle or scapular impairment with non-union to provide 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 shoulder condition, coded 5099 5003.


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 elbow condition, the Board unanimously concurs that it was service aggravated and is thereby eligible for rating and recommends a disability rating of 20%, coded 5213 IAW VASRD §4.71a. In the matter of the shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a. 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Chronic Right Elbow Degenerative Joint Disease Condition 5213 20%
Chronic Right Shoulder Pain Condition 5099-5003 10%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140205, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record




XXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXX, AR20150013265 (PD201400731)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.

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:

         a. Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

         b. Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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    


XXXXXXXXXXXXXXX
Deputy Assistant Secretary of the Army
(Review Boards)


( ) DoD PDBR
( ) DVA

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