RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00937
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141231
SEPARATION DATE:  20090330

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a reservist E-5 (Equipment Operator) medically separated for a right shoulder damage.  The shoulder injury could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The right shoulder damage condition, characterized as “ankylosing vertebral hyperostosis” and “brachial neuritis or radiculitis NOS” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) determined the CI to be fit and returned him to duty.  The CI appealed and a Reconsideration PEB adjudicated “infraspinatus tendinosis, post traumatic adhesive capsulitis right shoulder” as unfitting, rated 10% with probable application of the VA Schedule for Rating Disabilities (VASRD).  The neck conditions were determined to be Category III, not separately unfitting and not contributing to the unfitting condition.  The CI made no appeals and was medically separated.

CI CONTENTION:  “On going treatment for severe migraine headaches, nerve damage, GERD, sleep apnea, PTSD treatment since 2009 discharge date, back pain acceleration of degenerative disk disease.  Found unemployable by the V.A. and social security disability.  This should have been determined when I was fired by the Navy.  I should have been separated with a 30% or higher.” 

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 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 Recon PEB – Dated 20090209	VA – (~6 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
… Right Shoulder	5099-5003	10%	… Right Arm…Nerve Damage…	8515	30%	20081014	
Cervicalgia	Category III	Cervical Spine …	5237	20%	20081014	
Cervical Radiculopathy…	Category III					
Cervical Spondylosis	Category III					
Other x 0  (Not in Scope)	Other x 7 	20081014	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20090625 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Right Shoulder Damage: The CI had surgery for degenerative joint disease and degenerative disc disease at C5-6 with a secondary radiculopathy (pathology of the C-6 nerve root) on 28 April 2008.  Despite the apparently successful surgery, he continued to have pain of the right shoulder and was treated for this in physical therapy.  He was referred to an MEB for his neck condition, which was determined not to meet retention standards.  The IPEB found him fit for duty.  The CI contested this determination and noted persistent right shoulder pain and decreased motion as well as headaches.  He was then referred to an orthopedist for an evaluation of the shoulder condition.  The VA Compensation and Pension (C&P) examination was performed approximately 6 months prior to separation.  The shoulder was not separately addressed.  The pain in the right upper extremity was attributed to the neck (below).  The range-of-motion (ROM) was noted to be normal in physical therapy on 9 December 2008.  The orthopedic addendum to the narrative summary (NARSUM) was dated 8 January 2009, just over 2 months prior to separation.  It noted that the CI had injured his neck and shoulder while jumping from a trailer hitch while deployed.  Despite rehabilitation, he continued to have significant restriction in internal rotation (turning the hand into the body).  On examination, he was noted to be tender in the muscle below the shoulder blade and along the collar bone at the junction with the ribcage.  The shoulder was stable on examination.  No atrophy was present and the strength was normal other than weakness in external rotation secondary to pain.  “Elevation” was normal and symmetric with the left side; it was not specified if this was forward flexion, abduction (away from the body) or both.  He was diagnosed with adhesive capsulitis (a painful restriction in movement from inflamed and stiff connective tissue; this is a not infrequent complication from disuse such as was present pain secondary to the neck condition) and tendonitis of one of the shoulder muscles.  Continued rehabilitation was recommended.  A physical therapy evaluation the next day noted that the ROM of the right shoulder was normal.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the shoulder at 10% using an analogous code for degenerative arthritis, 5099-5003.  The VA did not rate the shoulder as a separate condition, but incorporated the right upper extremity symptoms into the neck condition (below).  The Board noted that the VA had access to the service treatment records for its adjudication and that the orthopedist clearly diagnosed a shoulder condition separate from the neck condition.  Despite this, it attributed the shoulder pain to the treated neck condition as had been determined by the VA C&P examiner 6 months prior to separation.  The Board assigned higher probative value to the examination performed 2 months prior to separation by the orthopedic specialist.  The shoulder ROM was noted as normal on the physical therapy evaluations before and after the NARSUM orthopedic addendum.  The motor function was noted as normal other than limitations from pain.  No muscle atrophy was present.  The Board considered the codes available for the shoulder.  It found no route to a rating higher than 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 condition.
Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that that the neck 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 neck condition was reviewed by the action officer and considered by the Board.  The commander noted good potential for continued service.  The neck condition was judged to fail retention standards by the MEB, but the IPEB found the CI fit for service.  The reconsideration PEB also noted that the neck conditions were not unfitting and did not contribute to the unfitting condition.  A pain management note documented that the pain was primarily in the shoulder.  The Board also noted that although the CI continued to complain of neck pain, the physical therapy treatment visits for the last few months prior to separation addressed the shoulder condition.  There was no performance based evidence from the record that the neck condition significantly interfered with satisfactory duty performance at the time of separation.  In fact, the IPEB returned him to duty.  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 PEB fitness determination for the neck condition and so no additional disability rating is 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 neck condition, the Board unanimously recommends no change from the PEB 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 20140223, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXXXXX, DAF
President
DoD Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS
Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION 
Ref:	(a) DoDI 6040.44
(b) CORB ltr dtd 13 May 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 USN
-	XXXXXXXXXXXXXXXXXXXX , former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)