RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-00665
BRANCH OF SERVICE:  MARINE CORPS 	BOARD DATE:  20140711
SEPARATION DATE:  20070930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SGT/E5 (0311/Rifleman) medically separated for left shoulder impingement.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “pain in joint involving lower leg; osteoarthrosis, unspecified whether generalized or localized, lower leg; other disorders of bone and cartilage; pain in joint involving ankle and foot; displacement of lumbar intervertebral disc without myelopathy; and stiffness of joint, not elsewhere classified, involving shoulder region” conditions to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “left shoulder impingement” as unfitting, rated 10% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The herniated nucleus pulposus (HPN) at L4-5 and L5-S1; right foot bony prominent at base of the first metatarsals with no evidence of significant arthritis; and bilateral knee pain, was adjudicated as Category III conditions (not separately unfitting and do not contributing to the unfitting condition).  The CI requested reconsideration, but the PEB findings and rating were affirmed.  The CI was medically separated without further appeal.  

CI CONTENTION:  “I had a right foot fracture, both knees Right & Left surgery with scars and still have pain, two (2) herniated discs with radiating pain to Legs (L-4 L-5) & (L-5-S1), Right shoulder rotator cuff tear with dislocation, Left shoulder Rotator cuff tear with dislocation and PTSD and I was given a 10% rating by USMC & 100% by VA.  I was given a 10% rating by Marine Corps & VA rating of 100% for the same injuries.”  

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 impingement condition is addressed below; as well as, the HNP, bilateral knee pain and right foot bony prominence conditions that were identified but not determined to be unfitting by the PEB.  The CI contentions regarding the right shoulder rotator cuff tear and posttraumatic stress disorder are not 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 Naval Records.  
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RATING COMPARISON:  

Service Recon IPEB – Dated 20070625	VA - (14 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Shoulder  Impingement	5299-5003	10%	Left Shoulder Rotator Cuff Tear	5299-5201	20%	20081113	
Herniated Nucleus Pulposus at L4-5 And L5-S1	CAT III	Lumbar Strain with Intervertebral Disc Syndrome 
	5243	10%	20081113	
Right Foot Bony Prominent at Base of The First MT with No Evidence of Significant Arthritis on Initial Films
	CAT III	Right Foot Fracture
	5284	10%	20081113	
Bilateral Knee Pain, Unclear Etiology (Status Post Partial Medical Meniscectomies)	CAT III	Right Knee Meniscectomy w/Scar
	5257	10%	20081113	
		Left Knee Meniscectomy w/Scar
	5257	10%	20081113	
Other x 2 (Not in Scope)	Other x 4	
Combined:  10%	Combined:  80%	
Derived from VA C&P General Exam dated 20081113 (most proximate to date of separation).   

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  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 nor for conditions determined to be service connected by the VA but not determined to be unfitting by the PEB.  However, the VA operating under a different set of laws (Title 38, United States Code),  and is empowered to compensate all service connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment varies over time.  The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation.  

Left Shoulder Impingement:  This right-hand dominant CI sustained a left shoulder injury while deployed in May 2002.  A magnetic resonant image (MRI) of the left shoulder performed in May 2005 suggested a focal tear of the rotator cuff.  He was treated conservatively without surgery.  The MEB examination and narrative summary (NARSUM) dictated 1 March 2007, 7 months prior to separation, noted the following range-of-motion (ROM) for the left shoulder: forward flexion 0-180 degrees (180 degrees normal), abduction 0-180 degrees (180 degrees normal), external rotation 90 degrees (90 degrees normal), and internal rotation 45 degrees (90 degrees normal).  The NARSUM noted the CI’s pain with reaching above the head or behind his shoulder.  In the limitation of activities section the NARSUM physician recommended no lifting overhead greater than 10 pounds, no physical readiness test and no deployment.  The commanders non-medical assessment (NMA), 10 April 2007, declared that the medical condition prevented carrying a rifle, backpack or fully completing a physical fitness test, thereby, rendering him incapable of performing any marine infantry duties.  The C&P examination was completed more than a year after the date of separation.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated a rating of 10% for the left shoulder condition using code 5299 (shoulder), rated analogously as 5003, (degenerative arthritis).  The original VA rating (VARD) dated 22 May 2009 referenced a rating of 20%, using code 5201 (arm, limitation of motion).  The Board noted the ROM recorded at the MEB examination surpassed the threshold criteria of limited arm motion of not greater than shoulder height.  The Board agreed that a rating greater than 0% could not be recommended using code 5201 (arm, limitation of motion).  The Board noted that there was no ankylosis of the shoulder joint to justify consideration of scapula-humeral dysfunction using code 5200.  The Board agreed that there was no instability of the shoulder joint for rating under code 5202.  The Board adjudicated a rating of 10% by applying the code 5003 degenerative arthritis IAW §4.59, and the documented impingement pain on examination.  The Board found no other appropriate codes for consideration.  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 left shoulder condition.  

Contended PEB Conditions:  The Board’s main charge is to assess the fairness of the PEB’s determination that the HNP, the right foot and bilateral knee conditions were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, is based on a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  

Herniated Nucleus Pulposus:  The CI complained of low back discomfort following a car accident in October 2001.  He reinjured his low back jumping out of trucks during combat operations.  An MRI completed on 4 August 2006 identified a central disc protrusion or herniation at the levels of the discs between the lower lumbar vertebrae without evidence of direct nerve root compression.  He completed physical therapy treatments for HNP meeting the goals of therapy 16 January 2007.  His primary care physician, during follow-up on 17 January 2007 found full ROM and strength of his spine.  On 16 March 2007, the physician noted that while occasionally taking medication for lower back pain (LBP) the CI had a normal gait and station.  No misalignment, asymmetry, crepitation, defects, tenderness, masses, effusions, decreased ROM, instability, atrophy or abnormal strength or tone in the head, neck, spine, ribs, pelvis or extremities.  At the MEB interview, the CI averred that his continued back pain did not permit him to sweep, mop, ruck march or do high impact activities.  The MEB examination found the CI had a normal non painful gait with the ability to perform five toe raises with little difficulty.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended back condition and, therefore, no additional disability ratings can be recommended.  

Right Foot Bony Prominence:  The CI described dropping a box of rations onto his right foot during his first deployment which resulted in the formation of a sensitive bony prominence at the base of the second and third long foot bones, (metatarsals).  The CI complained of discomfort from swelling of the prominence of the second right foot bone which required him to loosen his right boot.  A radiograph of the right foot on 26 April 2005 17 months prior to separation, revealed a normal foot and no fracture or significant soft tissue swelling.  No evidence of arthritic changes to the foot bones was described.  There was no statement in the service treatment record that the prominence in and of itself prevented any training or mission required activity.  The NARSUM examination noted that there was no effusion, redness or swelling to the right foot and the X-ray of the foot did not show any evidence of arthritic changes or clinical pathology.  The MEB examiner noted that the bony prominence was tender to touch at the time of the exam although the CI was capable of repeated toe raises.  The right foot bony prominence was not deemed clinically or occupationally significant during the MEB period, and was not profiled in the NARSUM.  The PEB agreed with the MEB that the condition did not fail retention standards.  The condition was reviewed and considered by the Board.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended right foot bony prominence condition and, therefore, no additional disability ratings can be recommended.  

Bilateral Knee Pain:  The Board noted that the PEB bundled the right and left knee pain conditions.  The Board discussed each knee separately for fitness.  1)  Left knee condition: this joint was injured during enemy contact during the second deployment.  The left knee underwent arthroscopy with removal of an excess band of tissue, on 29 July 2005.  The knee did well without requiring any physical therapy and he was returned to full duty.  Two months after his knee surgery he sprained his left knee in an auto accident.  The left knee improved with a course of physical therapy.  He was released to full activities on 10 July 2006 after declaring only mild pain with running.  There were no intervening knee injuries in evidence thereafter to separation.  The NMA by the commander stated in his letter of 6 June that the NARSUM activity limitations prevented the CI from performing his military mission.  These limitations were directly addressing activities that aggravated his shoulder condition.  The left knee pain condition was not judged by the PEB to fail retention standards.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended left knee pain condition and, therefore, no additional disability ratings can be recommended.  

2) Right knee condition: the CI reported injuring his right knee when struck by a vehicle door during his first deployment.  The right knee underwent an arthroscopy on 2 March 2006 with shaving and smoothing of a small flap tear in the back of the lateral knee joint cushion (posterior lateral meniscus) and a slight stable split on the table of the tibia joint surface.  A thickened plica (a congenital remnant band that can snap over the condyle and cause discomfort), was removed from where it pressed against the end of the thigh joint.  As of 2 May 2006 his post-operative note described that he had significant improvement of his ROM where it was considered “essentially normal” with his functional progress having achieved the expected degree of improvement and he was discontinued from the physical therapy program.  As noted above the orthopedic surgeon determined that both knees were fit and he was returned to full duties.  The right knee pain condition was not judged by the PEB to fail retention standards.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended right knee pain condition and, therefore, no additional disability ratings can be 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 shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended LBP, right foot pain and right and left knee pain conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  In the matter of the left shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130522, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
               BOARDS 

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS
 
Ref:   (a) DoDI 6040.44
       (b) CORB ltr dtd 15 Dec 14

      In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, approve the recommendations of the PDBR that the following individual’s records not be corrected to reflect a change in either characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board:

- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC    
- XXXXXXXXXXXXXX, former USMC  
- XXXXXXXXXXXXXX, former USMC