RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00129
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20061015 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-1 (Helicopter Crew Chief CH-53) medically separated for right shoulder instability.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty and he was referred for a Medical Evaluation Board (MEB).  The “other joint derangement, not elsewhere classified, shoulder region” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “continued right shoulder posterior 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:  His condition continues to worsen and negatively impact him.  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 20060824	VA* - (~2 weeks Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Cont. R Shoulder…Instability	5304	10%	R Shoulder Posterior Instability	5299-5202	20%	20060927	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 4	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20070328 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Right Shoulder Posterior Instability.  The right dominant CI was first seen on 1 July 2005 with a long history of “loose joints,” but an increased sensation of the right shoulder slipping out of joint for 6 months.  He was thought to have multi-directional instability.  After evaluations in physical therapy (PT), orthopedics, and rheumatology, he had surgery on the right shoulder on 6 April 2006 with repair of the cartilage lining of the shoulder socket (labrum) and also of the posterior instability which was found when examined under anesthesia.  Despite rehabilitation, he continued to note subjective looseness of the joint.  The narrative summary (NARSUM) was dated 19 July 2006, 3 months after surgery and 3 months prior to separation, and dictated by the treating orthopedist.  The CI reported continued subjective instability and pain with full motion.  On examination, he had full range-of-motion (ROM) and strength as well as a negative Speeds maneuver (indicating a good repair of the labrum), but some subluxation (an incomplete dislocations, a slippage of the humerus in the shoulder socket) with internal rotation and forward flexion was demonstrated.  This was supported by an MRI study (not dated or in evidence, but cited in the NARSUM).  A second operation was offered, but the CI declined as the chance of success was not sufficient for the CI to undertake.  

At the VA Compensation and Pension (C&P) examination performed on 27 September 2006, 2 weeks prior to separation, the CI reported initial improvement after surgery, but the recurrent instability.  On examination, the shoulder showed mild atrophy and full, but painful ROM.  He was able to demonstrate subluxation at the examination.  X-rays of the right shoulder were unremarkable.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder posterior instability at 10%, coded 5304 (Group IV muscles, stabilization of the shoulder).  The VA rated the shoulder at 20%, coded 5299-5202 (analogous to other impairment of the humerus) for infrequent dislocation.  The Board noted that the CI did not actually have a dislocation, but a less severe condition, subluxation.  It determined that the 5304 code used by the PEB was the most appropriate description of the pathology.  It then considered if the condition was at the moderate or moderately severe level of disability.  The CI had full ROM and strength on examination, although he could voluntarily sub lux his shoulder.  The Board determined that although the CI could place the shoulder in a position for subluxation, he had full ROM and strength consistent with a moderate impairment vice a moderately severe impairment.  This supports the 10% rating adjudicated by the PEB.  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 right shoulder posterior instability 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 posterior instability condition and IAW VASRD §4.73, the Board unanimously 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 20131230, 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