RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01199
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20140410
SEPARATION DATE:  20020905

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty ET2/E-5 (ET2/Electrician Technician 2nd Class) medically separated for a right shoulder condition.  The CI initially injured his right shoulder in a fall on a submarine in January 1997.  He underwent two surgeries with periods of convalescence and physical therapy.  The condition could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The right shoulder condition, characterized as “other post-surgical status”, was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB forwarded no other conditions to the PEB.  The Informal PEB adjudicated “right shoulder instability status post two shoulder surgeries” as unfitting, rated 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I was discharged with a 10% rating from the Medical Board.  I believe this violates the VA Schedule of Rating Disabilities (VASRD) (in effect July l, 2002) 4.59 of VASRD states with any form of arthritis, painful motion is an important factor of a disability (which I experience). 4.69 States Dominant arm is a factor of disability (Authority: 38 U.S.C. 1155) [62 FR 30239, June 3, 1997] (my right shoulder is my dominant arm). Code 5202: If the humerus bone of the shoulder frequently dislocates, causing person to guard the arm and all of its movements, it is rated 30% for the dominant arm (I experience frequent dislocations and guard my arm).  Code 5201: If the arm cannot be raised to the side more than 25°, it is rated 40% for the dominant arm and 30% for the non-dominant arm.  If it cannot be raised more than 45° from the side, it is rated 30% for the dominant arm and 20% for the non-dominant arm. If the arm can be raised to shoulder level (90°), then it is rated 20% for either arm.  (I am in between 45 and 90 degrees 30%).  (Authority 38 USC 1155) DODI 1332.39.  I was subsequently provided a 30% rating for right shoulder dislocation with degenerative arthritis from VA (see attached print out) rating from 3/10/2003.  I believe the Medical Board erred in not providing the appropriate rating per VASRD and DODI 1332.39 and ask that consideration be granted to changing my disability separation to Disability Retirement.”

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 right shoulder condition is addressed below; and, 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 Naval Records.  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 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.
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 also takes note of the CI’s assertion regarding his original disability being underrated by the service.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to the VASRD standards, based on ratable severity at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20020227	VA - (3 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Instability S/P Two Shoulder Surgeries	5299-5003	10%	Residuals, Right Shoulder Dislocation w/Degenerative Arthritis	5010-5201	30%	20021202	
No Additional MEB/PEB Entries	Other x 2	20021202	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20030318 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Shoulder Condition.  The CI is right hand dominant.  Subsequent to the CI’s initial traumatic right shoulder dislocation in January 1997, he has had numerous spontaneous dislocations of the same shoulder (often requiring emergent care) until the first of two stabilization surgeries (Bankart repair) performed in June 1999 with a revision in February 2001.  He did well with physical therapy (PT) and quickly recovered to have full range-of-motion (ROM) and good strength.  In June 2000, he again dislocated the right shoulder with an apparent spontaneous reduction while playing racquet ball.  He stated, “It popped back in.”  Despite maintaining ROM, clinical tests for instability were abnormal.  A revision stabilization surgery was performed on 20 February 2001.  The operation report indicated “scarred tissue” about the joint.  Aggressive PT was his mainstay of treatment after the revision surgery and was continued throughout the MEB process.  The MEB narrative summary performed on 22 October 2001 (11 months prior to separation) was a summary of the CI’s prior treatment history without current subjective comments.  The examination revealed positive instability signs of the right shoulder joint with normal ROM.  Crepitus was present.   There was neither abnormal sensation nor evidence of muscular atrophy in the right upper extremity.   “He has regained the majority of his ROM and strength.”  His diagnosis remained as right shoulder instability status-post two shoulder surgeries.  The MEB opined that, “…he will no longer do well in his duty as an active duty sailor.”  The commander’s non-medical assessment provided no details for specific limitations other than the profiled restrictions.  Additionally, the commander opined that “[his] physical condition has no impact on his ability to perform his duties here” at [present command]).

At the VA Compensation and Pension examination performed on 2 December 2002 (3 months after separation) the CI endorsed right anterior shoulder pain “…when he moves the wrong way.”  The examination revealed decreased and painful motion.  There was no swelling, discoloration, heat or local tenderness.  There was no comment on functional ability or the presence of guarding or crepitus.  The diagnosis was unchanged with the addition of degenerative arthritis of the right shoulder.  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.

DOS 20020905
Right Shoulder ROM
(Degrees)	NARSUM~10 Mo. Pre-Sep
(20011022) 	ORTHO~4 Mo. Pre-Sep
(20020521) 	VA C&P ~3 Mo. Post-Sep
(20021202)	
Flexion (180 Normal)	180	180	160	
Abduction (180)	-	180	80	
Comments	+ instability test
(painful motion)	+ instability test (painful motion)	+ painful motion
+ decreased strength (4-5)	
§4.71a Rating	10%	10%	30%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA chose different coding options for the condition, but this did not bear on rating and both were consistent with §4.71a schedule of ratings, musculoskeletal system.  The ROM values reported by the VA examiner, 3 months after separation, are significantly worse than those reported by orthopedics dated 4 months prior to separation.  There is no record of recurrent injury or other development in explanation of the more marked impairment reflected by the VA measurements.  The PEB adjudicated the right shoulder at 10% coded 5299-5003, analogous to degenerative arthritis.  The pre-separation examinations all revealed non-compensable ROM of the right shoulder and the Board agreed that the positive instability tests indicated a degree of painful motion IAW §4.59, to merit application of the minimal 10% compensable rating under this code.  The Board also agreed there was no evidence of incapacitating episodes to support a 20% rating under the PEB’s arthritis code.  The VA coded the right shoulder 5010 (traumatic arthritis) analogous to 5201 (arm, limitation of motion) and the rationale stated in the rating decision for a 30% rating was based upon limited motion of the right arm to midway between side and shoulder level.  The highest compensable (dominant) rating under code 5201 is 40%, when abduction is limited to 25 degrees of abduction; a level well exceeded in this case.

Board members deliberated as to the worsening ROM depicted on the VA examination and agreed that a build-up of scar tissue was a plausible factor in this case given the timeframe for growth combined with its known prior presence as noted in the revision operation report.  Therefore, Board member consensus was that the VA examination, being in close temporal proximity to separation, coupled with plausible physiologic post-surgical healing, reflected a fairly accurate picture of the CI’s impairment.  However, since scar tissue formation is a slow process, a logical deduction can be made that abduction 3 months earlier, at the time of separation, would have been better than the VA’s 80 degree measurement (3 months after separation) and therefore more closely meeting the 20% rating criteria of abduction to shoulder level or above.  After due deliberation, considering the totality of evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the right shoulder condition under the analogous code of 5010-5201.  Consideration was also given to code 5202 (humerus, impairment) with frequent dislocations of the shoulder joint, but absent “guarding” of arm movements, the 30% level was not supported.  There was no evidence of ratable peripheral nerve impairment, which would provide for additional or higher rating.  There was no further clinical or radiological evidence of the right shoulder joint that suggested non-union of, or mal-union of the clavicle or scapula.  Hence, no alternative shoulder code is supported in justification of a rating higher than that found in the limited ROM criteria under code 5201.

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 20%, coded 5010-5201 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, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Shoulder Condition 	5010-5201	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130905, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
	
Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: 	(a) DoDI 6040.44
(b) PDBR ltr dtd 1 Sep 14 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 1 Jul 14 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 12 Aug 14 ICO XXXXXXXXXXXXXXXXXX

1. Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (e).

2. The official records of the following individuals are to be corrected to reflect the stated disposition:

a.	XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20% (increased form 10 %) effective the date of member’s discharge.

b.    	XXXXXXXXXXXXXXXXXXXX, former USN:  Disability separation with a final disability rating of 20%  ( increased form 10 %) effective the date of member’s discharge. 

c.	 XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20 % (increased from 10%) effective the date of member’s discharge. 

3. Please ensure all necessary actions are taken to implement these decisions, and the above individuals are notified once those actions are completed.