RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00677
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20141024
Separation Date:  20071031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-2 (9971/Basic Marine) medically separated for a left shoulder injury.  The shoulder could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a temporary U3 profile by the Army, as she was attending her Basic Military Occupational Specialty Course at Ft Leonard Wood, and referred for a Medical Evaluation Board (MEB).  The shoulder condition characterized as “other joint derangement, not elsewhere classified, shoulder region,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB and a follow-up Reconsideration PEB both adjudicated “left shoulder multidirectional instability” as unfitting, but a preexisting condition.  The CI non-concurred with both findings and requested a Formal PEB (FPEB).  The FPEB adjudicated the same condition, but rated it at 10%, with application of the VA Schedule for Rating Disabilities (VASRD).  The CI concurred with the FPEB and was medically separated. 

CI CONTENTION:  “Left shoulder injury continues to incapacitate daily activities needed for a fully functional, normal, and healthy life.  Migraines occur and disrupt more than 50% of each week disrupting and often destroying school and work success.”

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 shoulder condition is addressed below; and, no additional conditions, to include the contended migraines, 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 (BCNR).

RATING COMPARISON:

Service FPEB – Dated 20070814	VA - (4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Shoulder Multi-Directional Instability	5202	10%	Left Shoulder, S/P Operative Labrum Tear, w/Chronic Rotator Cuff Tendonitis	5024	10%*	20080219	
Other x 0	Other x 2	20080219	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20080821 (most proximate to date of separation [DOS])
*VARD of 20100908 updated shoulder condition, and backdated to day after separation.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that 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 Veterans Affairs, operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

Left Shoulder Multi-Directional Instability Condition.  There were two goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Left Shoulder ROM (Degrees)	MEB NARSUM 7.5 Mo. Pre-Sep	VA C&P 4 Mo. Post-Sep	
Flexion (180 Normal)	150	150	
Abduction (180)	135	120	
Comments: Right hand dominant	Pos. evidence of instability	Pos. painful motion & crepitus; Pos. tenderness to palpation; No Deluca criteria	
§4.71a Rating	20% (PEB10%)	10%	

The CI had a history of left posterior shoulder dislocations which required surgery on 23 November 2004 and existed prior to service (EPTS).  She did quite well until she was in basic training and sustained two more left shoulder dislocations.  She was seen in the emergency room (ER) for left shoulder pain after doing pushups with physical exam findings of positive Hawkins sign (tendon impingement) and tenderness to palpation (TTP).  Throughout 2006, the CI followed with primary care and physical therapy (PT) for left shoulder anterior TTP, muscle atrophy and pain.  The CI underwent a left shoulder arthrogram.  A left shoulder magnetic resonance imaging demonstrated a possible tear of the glenohumeral ligament and bicep tendon as well as a thickened middle glenohumeral ligament.  The orthopedist noted chronic constant left shoulder pain which was worse with subluxations due to instability.  The physical exam findings were mild muscle atrophy; TTP along the bicipital tendon and lateral aspect of the acromion posteriorly and brisk biceps and triceps reflexes.  The orthopedist diagnosed chronic left shoulder pain associated with recurrent instability.  The CI was given a temporary U3 profile for left shoulder pain; however, there were no associated limited duties.  The CI underwent a diagnostic arthroscopy with debridement of the shoulder labrum on 24 January 2007.  Throughout 2007, the CI was treated by PT for chronic left shoulder pain.  The MEB NARSUM exam approximately 7 months prior to separation documented that although the CI felt her shoulder was more stable, she still had pain and feelings of shoulder instability.  The MEB NARSUM physical exam findings were summarized above. 

The VA Compensation and Pension (C&P) exam approximately 3 months after separation documented that the CI continued to have infrequent left shoulder dislocations approximately six times per year with shoulder pain when working overhead, sleeping on her left side and doing heavy lifting.  She also reported feelings of grinding and popping, and feelings of weakness and looseness.  The VA C&P physical exam findings were summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and reconsideration PEB both coded the left shoulder multi-directional instability condition as humerus, other impairment of and identified the shoulder as a pre-existing condition.  The FPEB document indicated that there was no reduction in the disability rating for the EPTS condition and assigned a 10% rating.  The Board presumes that there was an oversight on the FPEB document as a review of the rating criteria for 5202 shows a minimum rating of 20%.  The VA coded the left shoulder, status post operative labrum tear, with chronic rotator cuff tendonitis condition as 5024 (tenosynovitis), rated at 10%.  The CI was right-hand dominant.  All notes in the treatment record proximate to separation documented infrequent left shoulder dislocation and guarding.  The MEB examiner documented limited ROM and all testing demonstrated left shoulder instability with feelings of possible shoulder dislocation with extremes of activities and any strenuous activity to include lifting, pulling or pushing.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the left shoulder multi-directional 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 left shoulder multi-directional instability condition, the Board unanimously recommends a disability rating of 20%, coded 5202 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 her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Left Shoulder Multi-Directional Instability	5202	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140131, 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 24 Apr 15 ICO XXXXXXXXXXXXXXX    
        (c) PDBR ltr dtd 24 Apr 15 ICO XXXXXXXXXXXXXXX
        (d) PDBR ltr dtd 8 Jan 15 ICO XXXXXXXXXXXXXXX
        (e) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
        (f) PDBR ltr dtd 21 Apr 15 ICO XXXXXXXXXXXXXXX
        (g) PDBR ltr dtd 7 Apr 15 ICO XXXXXXXXXXXXXXX

1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (g).

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXX, former USMC: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     e. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating 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 completed.