RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-00204
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20140829
SEPARATION DATE:  20071125

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LN2/E-5 (Legalman) medically separated for chronic right shoulder impingement with acromioclavicular arthrosis.  The condition could not be adequately rehabilitated to meet the physical requirements of her rating or satisfy physical fitness standards.  She was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The chronic right shoulder condition, characterized as “other affections of shoulder region, not elsewhere classified and osteoarthrosis, unspecified whether generalized or localized, shoulder region,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic right shoulder impingement with acromioclavicular arthrosis” as fit to continue on Active Duty.  The CI non-concurred with the IPEB findings, thus requested and was granted Formal PEB (FPEB).  The FEB reviewed the IPEB proceedings, re-adjudicated the “chronic right shoulder impingement with acromioclavicular arthrosis” condition as unfitting, and rated at 20%.  The CI made no further appeals and was medically separated. 

CI CONTENTION:  “I do not feel 10% is a high enough rating for my shoulder & shoulder blade because I am in constant pain & it only continues to get worse.”  [sic]

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 ratings for the unfitting chronic right shoulder impingement with acromioclavicular arthrosis and status post arthroscopic subacromial decompression and distal clavicle excision and revision distal clavicle excision conditions are addressed below and, the cervical neuropathy condition is considered a contended condition and is also in scope as it potentially related to the CI’s shoulder condition.  
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 FPEB – Dated 20070827	VA - (4 Years 4 Months Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Shoulder Impingement With Acromioclavicular Arthrosis	5201	20%	Impingement, Right Shoulder with Scar (also claimed as tendonitis)	5201-5019	10%	20120409	
Status Post Arthroscopic Subacromial Decompression And Distal Clavicle Excision And Revision Distal Clavicle Excision	CAT II					
Cervical Neuropathy	CAT III 	Cervical Strain	5237	10%	20120409	
Other x 0 (Not in Scope)	Other x 2 	
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20120830 (most proximate to date of separation)

ANALYSIS SUMMARY:

Chronic Right Shoulder Impingement with Acromioclavicular Arthrosis Condition.  The CI was right handed.  The evidence of record including the narrative summary, treatment records, CI’s formal petition and FPEB documented the CI’s shoulder injury and two surgeries in 2005 (subacromial decompression and two distal right clavicle excisions).  There was aggressive post-surgical treatment which included both physical therapy and injections, although the CI continued to complain of shoulder pain and limited motion.  Treatment notes indicated recurrent synovitis and synovitis (fluid in the joint) of the right shoulder through July 2007.  The CI was not considered a candidate for further surgeries and was taking narcotic and non-narcotic pain medication.

At the MEB exam (approximately 8 months prior to separation), the CI reported chronic right shoulder pain, inability to raise her arm over her head due to pain and difficulty sleeping.  Exam documented limited painful range-of-motion (ROM) to 170 degrees flexion and 160 degrees abduction (180 degrees normal) and tenderness.  There was normal strength of the shoulder muscles and no instability (5/5 rotator cuff strength, negative apprehension, negative instability, negative Speed, negative impingement sign and negative O'Brien sign).  The DD Form 2808 exam documented normal sensation distal to the surgical areas.  At the FPEB and in her petition the CI complained of pain with sitting and desk-type work.  The FPEB exam indicated right shoulder pain-limited motion to 90 degrees of flexion and extension (180 degrees normal) without winging of the shoulder blade (indicating good muscle strength).  The CI “gestured using her left (non-dominant) hand” [indicating guarding of the right arm].

At the VA Compensation and Pension exam performed 4 years after separation, the CI reported continued right shoulder pain.  Exam documented tenderness, guarding and painful and limited ROM of flexion 150 degrees and abduction 110 degrees (normal 180 degrees) after repetitive motion testing.  Strength was normal for abduction and flexion.  Elbow wrist and finger strength was normal.  The VA rated this exam at 10% for painful motion.

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB documented the most limited ROM (90 degrees flexion/abduction) of the probative exams and the PEB awarded 20% under disability code 5201 (Arm, limitation of motion “at shoulder level”).  For a higher rating, the ROM would have to be limited “midway between side and shoulder level” (45 degrees).  There was no indication of that degree of shoulder impairment and there were no other more favorable coding options for the shoulder condition.  Considering the totality of the evidence and mindful of Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.3 (reasonable doubt), members agreed that a disability rating of 20% for the right shoulder condition was appropriately recommended in this case.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

Contended FPEB Conditions.  The Board’s main charge is to assess the fairness of the FPEB’s determination that the contended cervical neuropathy condition was 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, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The cervical neuropathy condition was not indicated under any LIMDU.  The non-medical assessment commander’s statement specifically mentions only the shoulder condition as duty impairing.  The record shows an entry in November 2005, approximately 2 years prior to separation, indicating fair ROM of the neck with decreased right C7 area reflex and strength, with an assessment of “neuropathy probably secondary to mild degenerative joint disease of the cervical spine.”  Further orthopedic exams indicated improvement in the neck condition with discomfort on full ROM, good strength and no neurologic deficits.  The 2006 orthopedic notes indicated shoulder pain was most likely from scaring from the shoulder surgeries (not from the neck).  Examinations more proximate to separation did not mention any evidence of cervical neuropathy aside from intermittent symptoms.  The Board considered that the right shoulder symptoms may have overlapped with any symptoms from a cervical neuropathy; however, there was scant evidence of any abnormality of the cervical spine or of a fixed cervical neuropathy that would rise to the level of being unfitting.  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 FPEB fitness determination for the contended cervical neuropathy condition and so no additional disability ratings are 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 right shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended cervical neuropathy condition, the Board unanimously recommends no change from the FPEB determination as not unfitting.  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 20131216, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXX
President
Physical Disability Board of Review  

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 22 Apr 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:

- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN

						  XXXXXXXXXXXXXXX
	     				  Assistant General Counsel
		  (Manpower & Reserve Affairs)