RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00254
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 activated Reserve E4, Motor Vehicle Operator, medically separated for “status post left labral tear repair and left subacromial decompression with resection of distal end of the clavicle,” and “status post resection of osteophyte, talonavicular joint, left foot,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  He was given a higher rating for his condition by the VA.  The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 Veterans Affairs Schedule for Rating Disabilities (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:  

SERVICE PEB - 20060814	VARD - 20061220  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Status Post Left Shoulder Surgery	5299-5003	10%	Status Post Labral Tear Repair, Left Shoulder	5201	20%	20061108	
Residual Loss of Motion, Left Shoulder	Category II					
Status Post Resection of Osteophyte, Talonavicular Joint, Left Foot	5299-5003	10%	Status Post Resection Of Osteophyte, Left Foot 	5284	10%	20061108	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDTIONS:  30%	

ANALYSIS SUMMARY:   

Left Shoulder.  In 2005, while deployed overseas, this right-handed Marine started having problems with his left (non-dominant) shoulder.  After his return to the US, he was seen by Orthopedics, and was diagnosed with rotator cuff tendinitis.  In November 2005, arthroscopic surgery was done on the left shoulder.  After surgery, in spite of all treatment efforts, he continued to have shoulder problems and a Medical Evaluation Board (MEB) was initiated.  The MEB narrative summary (NARSUM) was dated 10 April 2006.  The CI reported that he was unable to do push-ups or pull-ups with the left shoulder, and unable to do any heavy lifting with the left arm.  On physical examination (PE), he was in no acute distress.  PE of the left shoulder revealed surgical incisions that were well healed.  There was no neurovascular deficit of the left arm, and the glenohumeral joint was stable.  Range of motion (ROM) testing showed flexion to 100 degrees, and abduction to 120 degrees.  X-rays of the left shoulder revealed evidence of the previous surgery, but were otherwise unremarkable.  The NARSUM diagnoses for the left shoulder were:

1.	Status post left labral tear repair and left subacromial decompression, with resection of distal end of the clavicle
2.	Residual loss of motion, left shoulder – improving   

On 23 August 2006, the CI had a visit with physical therapy (PT).  The physical therapist wrote: “Patient has ROM that is within functional limits. There is minimal limitation with overhead shoulder flexion at end range, partly secondary to severe pain.”  On 13 September 2006 and 22 September 2006, the CI was seen by his orthopedic doctor.  On both occasions, ROM testing showed 140 degrees of active flexion and active abduction.  Passive ROM was full.  On 28 September 2006, the CI had a second arthroscopic surgery procedure on the left shoulder.

The CI was found unfit for military duty, and was separated from service on 15 October 2006. Three weeks later, on 8 November 2006, he had a VA Compensation and Pension (C&P) examination.  He reported a constant aching pain in the left shoulder, which was worse when he raised left arm above his head.  On PE of the left shoulder, there was tenderness anteriorly.  No muscle atrophy was noted.  With ROM testing, forward flexion was initially 90 degrees, and it increased to 110 degrees with repetition.  Active abduction was initially 74 degrees, and it increased to 110 degrees with repetition.
 
The Board directed attention to its rating recommendation based on the evidence.  The Board carefully reviewed the data from the examinations described above, and determined that, IAW VASRD §4.10 (Functional impairment), §4.40 (Functional loss), §4.45 (The joints), and §4.59 (Painful motion), when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  A 10% rating is warranted when there is satisfactory evidence of functional loss and disability due to pain.  There was no path to a higher rating for the left shoulder, since there was insufficient evidence of a seriously disabling bone or joint abnormality which would justify a higher rating.  After due deliberation, the Board determined that a disability rating of 10% for the left shoulder was appropriate.  Considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the unfitting left shoulder condition.

Left Foot.  This CI also has a history of left foot pain.  In March 2006, he had surgery to remove a bony prominence on the dorsum (top) of the left foot.  After surgery, he continued to have problems with his left foot.  At the April 2006 MEB examination, the left foot surgical incision was described as benign, healed, and non-tender.  The NARSUM diagnosis for the left foot was: “Status post resection of osteophyte, talonavicular joint, left foot.”  Three weeks after separation, at the November 2006 C&P examination, the CI reported that his left foot pain was improved.  He only had pain when the area was touched, or when his shoes put pressure on that spot. 

The Board directed attention to its rating recommendation based on the evidence. The PEB and the VA chose different coding options for the left foot problem, but both assigned a 10% disability rating.  The Board determined that, IAW VASRD §4.10 and §4.40, a 10% rating was warranted due to satisfactory evidence of functional impairment and functional loss.  There was no path to a higher rating for the left foot, since there was insufficient evidence of a seriously crippling bone or joint abnormality which would justify a higher rating.  After due deliberation, the Board determined that a disability rating of 10% for the left foot was appropriate.  Considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the unfitting left foot condition.

Contended PEB Condition.  One condition was adjudicated by the PEB as Category II (related to the unfitting left shoulder condition).  This Category II condition was characterized as: “Residual loss of motion, left shoulder – improving.”  The Board’s main charge with respect to this condition is to assess the appropriateness of the PEB’s adjudication.  This Category II condition was thoroughly reviewed and considered by the Board.  The record did not show sufficient evidence that the residual loss of motion (independently) had a significant effect on the performance of military duties.  Therefore, the Board determined that the residual loss of motion was indeed related to the unfitting left shoulder condition, and did not constitute a separately unfitting condition for disability rating purposes. After due deliberation, IAW VASRD §4.14 (avoidance of pyramiding), and in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB adjudication of this other PEB condition.  Therefore, no additional disability rating is recommended.   

BOARD FINDINGS:  In the matter of the unfitting left shoulder condition, and IAW VASRD §4.10, §4.40, §4.45, and §4.59; the Board unanimously recommends no change in the PEB adjudication.  In the matter of the unfitting left foot condition, and IAW VASRD §4.10 and §4.40, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the “Residual loss of motion, left shoulder,” and IAW VASRD §4.14, the Board unanimously recommends no change from the PEB determination as Category II.  There were no other conditions within the Board’s scope of review for consideration.  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 20140107, 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 9 May 16

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