RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01420
BRANCH OF SERVICE:  navy	BOARD DATE:  20140605
SEPARATION DATE:  20070412

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SN/E-3 (Seaman) medically separated for a left (non-dominant) shoulder condition.  He suffered a shoulder injury in 2006 which required surgical intervention but could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards.  After exhausting limited duty options, he was referred for a Medical Evaluation Board (MEB).  The MEB forwarded three separate diagnoses related to the post-operative shoulder condition to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The CI submitted a rebuttal to the MEB, which was reviewed but resulted in no amendments to the MEB submission.  The Informal PEB adjudicated “6 months status post arthroscopic Bankart repair” as a Category I (unfitting) condition, rated 10% and included two Category II (contribute to unfitting) conditions: “instability with objective findings of a stable shoulder with somewhat reduced range of motion” and “still has subjective complaints of pain.”  The CI was then medically separated.

CI CONTENTION:  “I am still experiencing difficulty with injury that required daily intake of pain medication and limited activities.”

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 condition is addressed below and will subsume the related Category II conditions.  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. 

RATING COMPARISON:

Service IPEB – Dated 20070305	VA - (2 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Surgical Residuals, Left Shoulder	5299-5003	10%	Surgical Residuals, Residual Biceps Paresthesia, L Shoulder	5201	20%	20070223	
Subjective Instability, L Shoulder	Category II					
Subjective Pain, L Shoulder	Category II					
No Additional MEB/PEB Entries	Other x 5	20070223	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20070810 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the impairment with which the CI’s service-connected condition continues to burden him but notes 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 Veteran Affairs, operating under a different set of laws.

Left Shoulder Condition.  The CI suffered a dislocation (anterior) of his left shoulder in a shipboard fall in February 2006, which remained unstable after reduction.  In July, he underwent surgical stabilization (arthroscopic Bankart procedure).  There is no documentation in the service treatment record (STR) of recurrent subluxation/dislocation or objective instability after the surgery.  A physical therapy note dated November 2006 (4 months post-op), the last STR entry prior to the narrative summary (NARSUM), documents continued pain and subjective instability.  Range-of-motion (ROM) measurements were forward flexion 150 degrees and abduction 120 degrees (normal 180 degrees for both).  The NARSUM (3 months pre-separation) documented: 
He says he has had approximately 50% reduction in his pain since the surgery but that he has chronic aching and that it is worse with overhead activity.  He reports no new actual dislocations but states that he has a subjective sense of instability of his shoulder.  He denies weakness.
The NARSUM physical exam performed on 17 January 2007 documented 5/5 strength at the shoulder girdle, apprehension with shoulder manipulation, but stated “His objective exam for instability is essentially normal.”  The ROM measurements were forward flexion 160 degrees and abduction 90 degrees.  The VA rating examination (2 months pre-separation) documented a complaint of “constant pain of 8/10 throughout all of the extremities” which encompassed all of the CI’s orthopedic claims, with no specificity for the left shoulder.  Specific limitations were not elaborated.  The VA physical exam documented the absence of tenderness or atrophy and did not comment on stability (subjective or objective).  The VA ROM measurements were forward flexion and abduction each 90 degrees.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating was consistent with the analogous 5003 (degenerative arthritis) criteria applied but did not address the NARSUM abduction of 90 degrees which meets the 20% threshold for code 5201 (shoulder limitation of motion).  The VA’s 20% rating under code 5201 cited the 90 degrees measurements from the VA exam in support of its decision.  Code 5202, which provides rating for shoulder instability (in lieu of other codes, not in addition to other ratings) was considered, but even analogously for functional instability despite the absence of objective instability, members agreed that application of 5299-5201 was not supported in this case.  Furthermore, for non-dominant (minor) rating the maximum achievable is 20% via this route.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends a disability rating of 20% for the left shoulder condition under code 5201.  It is noted that this recommendation subsumes or takes into account any disability attendant to the Category II conditions elaborated above.

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 left shoulder condition, the Board unanimously recommends a disability rating of 20%, coded 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	
Surgical Residuals, Left Shoulder	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 29 Dec 14 ICO XXXXXXXXXXXXXXXXXX
(c) PDBR ltr dtd 13 Jan 15 ICO XXXXXXXXXXXXXXXXXX
(d) PDBR ltr dtd 29 Dec 14 ICO XXXXXXXXXXXXXXXXXX
(e) PDBR ltr dtd 29 Dec 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 USMC: Disability separation with a final disability rating of 20 percent (increased from 10%) effective date of discharge.

b. XXXXXXXXXXXXXXXXXXXX, former USMC:  Disability separation with a final disability rating of 20 percent (increased from 10%) effective date of discharge.

c. XXXXXXXXXXXXXXXXXXXX, former USMC: Disability separation with a final disability rating of 20  percent (increased from 10%) effective date of discharge. 

d. XXXXXXXXXXXXXXXXXXXX, former USN: Disability separation with a final disability rating of 20 percent (increased from 10%) effective date of discharge.

3. Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.