RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00028
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20070215

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E-3 (Military Police) medically separated for a left (non-dominant) shoulder condition.  The left shoulder condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  “Recurrent dislocation of joint of shoulder region” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “recurrent left shoulder instability” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.    

CI CONTENTION:  The CI contends appropriate VASRD codes were not used.  His complete submission is at Exhibit A.  

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:  

IPEB – Dated 20061201	VA* - (~15 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Recurrent L Shoulder Instability	5299-5003	10%	Residuals of L Shoulder Injury	5203	NSC**	20080505	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 	
RATING:  10%	RATING:  NSC	
*    Derived from VA Rating Decision (VARD) dated 20080811 (most proximate to date of separation [DOS]). 
**  Not service connected (NSC) for failure to retrieve Service medical record.  Was service connected by VARD dated 20091005
      (~4 yr. post-separation) and rated 10% under 5201-5003.

ANALYSIS SUMMARY:  The Board noted that the earliest VA evaluation was 15 months after separation.  As elaborated above, the Board’s assessment must be derived from evidence that can be reasonably interpreted to reflect disability at the time of separation.  Therefore the evidence from the military record was assigned significantly more probative value with respect to the Board’s recommendation.  

Left Shoulder Condition.  There is a paucity of source clinical notes in the available service treatment record (STR) for this case.  The narrative summary (NARSUM) documented a left shoulder dislocation during basic training that was reduced by medical personnel and did not prohibit completion of training.  The NARSUM continued, “Since that time, the patient has noted multiple episodes of shoulder subluxation [partial dislocation] with one additional frank dislocation approximately six months ago [10-11 months prior to separation].”  Imaging (MRI arthrogram) demonstrated some bone damage consistent with recurrent subluxation (Bankart lesion) and a suspected labral tear (pre-disposing to dislocation).  The NARSUM physical examination on 4 October 2006, 4 months prior to separation, recorded the absence of any significant shoulder weakness (4+/5, non-dominant) or atrophy, but some indication of instability (positive apprehension and relocation tests, but no translation).  There were no signs of impingement or nerve involvement and range-of-motion (ROM) was grossly normal.  Formal ROM measurements by a civilian physical therapist performed on 11 December 2006, 2 months prior to separation, recording forward flexion to 120 degrees (normal 180, minimum compensable 90) and abduction to 100 degrees (same parameters).  The NARSUM orthopedist and the commander’s non-medical assessment document that surgical intervention was repeatedly advised and refused.  The NARSUM attributed the CI’s multiple refusals to “concerns over the perceived outcome of this procedure.”  The source records for these discussions are not in evidence.  

The VA Compensation and Pension (C&P) examination indicated that the CI had failed to keep earlier scheduled appointments.  The VA examiner corroborated the NARSUM history of preceding surgical recommendations and refusals, without expressing or implying an associated opinion; and, documented “further shoulder dislocations occurring 4-5 times since ... discharge.”  The CI was employed and the examiner opined that the shoulder condition was not associated with occupational impairment.  This C&P examination, corroborated by other contemporary VA evidence, also documented continued engagement in recreational sports (football, basketball).  The VA physical examination recorded normal joint alignment, 5/5 strength, and no tenderness; but “guarding movements during exam anticipating pain and dislocation.”  Normal and painless ROM measurements (180 degrees forward flexion and abduction) were documented.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was compliant with VASRD §4.71a criteria for that code.  With the lack of any ratable ROM limitation, ankylosis, or bone injury there is no §4.71a route to a rating higher than 10%, other than consideration of code 5202 (humerus, other impairment of) which confers rating for instability and recurrent dislocations.  The maximum achievable rating under 5202 for the non-dominant joint is 20%, specifying “infrequent episodes, and guarding of movement only at shoulder level.”  The evidence arguably supports the presence of these criteria; although it is noted that neither the Service nor VA (ultimately) rated for instability premised on the same evidence.  Furthermore the uncorroborated history of multiple dislocations with marginal medical intervention, the CI’s ongoing recreational activities (conflicting with an assumption of significant shoulder instability), and the lack of objective exam confirmation of mechanical joint laxity all raise probative value concerns with regards to the ratable evidence.  Member consensus, therefore, was that the evidence was not sufficiently conclusive in support of a 5202-based rating (concordant with PEB and final VA determinations).  Additionally a relevant factor for Service rating is the CI’s refusal of a surgical remedy, which is addressed in DoDI 1332.39 (6.1.3) and is not contradicted by the VASRD.  Members agreed that surgery was indicated based on the history, findings, and imaging reports in evidence; and, that the anticipated surgical outcome (to at least a more likely than not degree of certainty) would have been a mechanically stable joint; e.g., the predictable benefits outweighed the realistic risks.  Although it is not certain that the CI was fully informed or fully appreciated the likely outcome and risks, it is clear that he was encouraged on various occasions by multiple providers to pursue a surgical remedy; and, it can be reasonably concluded that he was aware that he was forfeiting further military service by refusing surgery.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the right shoulder condition.

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 and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131219, 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 30 Nov 15

      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:

- XXXXXXXXXXXXXXXXXXXX, former USMC  
- XXXXXXXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXXXXXXX, former USMC

						  XXXXXXXXXXXXXXXXXXXX
	     				  Assistant General Counsel
						  (Manpower & Reserve Affairs)