RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-00760
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20140815
Separation Date:  20090730

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SHSN/E-3 (SHSN/Ships Serviceman Seaman) medically separated for a right shoulder condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his rating or satisfy physical fitness standards.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The right shoulder condition, characterized as “stiffness in joint not elsewhere classified involving shoulder region” and “pain in joint involving shoulder region” by the MEB was forwarded to the Physical Evaluation Board (PEB) SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “right shoulder pain and stiffness post right shoulder arthroscopic Bankart anterior-posterior labral repair” as unfitting and rated it at 10%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Shoulder continues to get worse.  Had another surgery after I got out and still need more work.  It is not getting better.  Back problems getting worse effecting life more.” 

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 right shoulder condition is addressed below.  Neither the contended back condition nor any 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 IPEB – Dated 20090504	VA - (2 Days Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Pain and Stiffness Post Repair	5099-5003	10%	Right Shoulder Impingement, Status Post Right Labral Tear Surgery	5201	20%	20090728	
Other x0 (Not in Scope)	Other x3	20090728	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20091015 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System (DES) 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’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.
Right Shoulder Pain and Stiffness Post Arthroscopic Repair Condition:  The CI was lifting with his right shoulder when it was yanked downward, which resulted in a rotator cuff injury.  A right shoulder magnetic resonance imaging demonstrated a suspected posterior labral tear and distal clavicular osteolysis.  The CI was followed by orthopedics for right shoulder pain.  A limited arthrogram performed for chronic right shoulder pain and recurrent subluxation showed two tears in the labrum and joint arthropathy.  The orthopedist documented right shoulder pain with a clicking sensation and instability.  The physical exam findings were a positive apprehension test, with normal range-of-motion (ROM).  The initial MEB narrative summary (NARSUM) exam documented right shoulder pain localized to the superior aspect of the shoulder, popping, grinding and a feeling of laxity.  The physical exam findings were tenderness, evidence of shoulder instability and pain-limited ROM.  The CI was placed on a third LIMDU, continuous physical therapy (PT) and a repeat arthrogram revealed a labral tear.  The CI underwent a right shoulder arthroscopic Bankart anterior and posterior labral repair on 22 August 2008.  A second MEB NARSUM exam documented that he was progressing well and still used a sling.  The physical exam findings were limited ROM and significant deficits; however, the CI was only 5 weeks post-operative.  The non-medical assessment documented that the CI had many restrictions which prevented him from working on a ship or in an overseas environment.  He was noted to have a functional limitation of an inability to lift anything greater than 10 pounds.  The third MEB NARSUM exam approximately 4.5 months prior to separation documented that although the CI had completed his third LIMDU, he still had persistent right shoulder pain, stiffness and achiness along with nighttime pain in the posterior aspect of the shoulder which interfered with sleep. The MEB NARSUM physical exam findings are summarized in the chart below.  The VA Compensation and Pension exam 2 days prior to separation documented that the CI never had gotten his full ROM back since the surgery despite extensive PT.  The examiner documented that he was going to return to the orthopedic surgeon for an evaluation for a possible second surgery for severe impingement now that he had marked weakness, limited motion and pain.  The examiner diagnosed a right shoulder impingement post-operative surgery for a labral tear with serous dysfunction and an inability to do any shoulder level or above shoulder level work with only the most sedate type of work performed.

There were two goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the following chart:

Right Shoulder ROM (Degrees)	MEB 4.5 Mos. Pre-Sep	VA C&P 2 Days. Pre-Sep	
Flexion (0-180)	130	90	
Internal rotation 70	10	30	
External rotation 90	45	45	
Abduction (0-180)	100	90	
Comments:
Right hand dominant	No instability or impingement; decreased sensation right arm	Pos. tenderness to palpation & painful motion; Pos. DeLuca criteria; “… has a seriously dysfunctional right shoulder for above shoulder level work plus weakness at all active work.”	
§4.71a Rating	10%	20%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded the right shoulder pain and stiffness post right shoulder arthroscopic Bankart anterior-posterior labral repair condition 5099 analogous to 5003 (degenerative arthritis) and rated it 10%.  The VA coded the right shoulder as 5201 (limitation of arm motion at shoulder), and rated it 20% citing “…for arm motion limited at shoulder level.”  The 5201 criteria of the right upper extremity being the dominant “major” extremity and the limitation of movement to 90 degrees clearly meets the criteria of “at shoulder level” 90 degrees.  The Board adjudged that the VA exam was closest to separation and therefore had the higher probative value.  The Board agreed that the CI’s disability was closest to the right shoulder limited ROM “limitation of motion at shoulder level.”  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 right shoulder pain and stiffness post right shoulder arthroscopic Bankart Aanterior-posterior labral repair 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 pain and stiffness post right shoulder arthroscopic Bankart anterior-posterior labral repair condition, the Board unanimously recommends a disability rating of 20%, coded 5201 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 his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Shoulder Pain and Stiffness Post Right Shoulder Arthroscopic Bankart Anterior-Posterior Labral Repair	5201	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140213, 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 29 Mar 15 ICO XXXXXXXXXXXXXX  
	 (c) PDBR ltr dtd 29 Mar 15 ICO XXXXXXXXXXXXXX
	 (d) PDBR ltr dtd 29 Mar 15 ICO XXXXXXXXXXXXXX  

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

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

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

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

     c. XXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a 20 percent (increased from 10 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.