RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01205
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150629
Separation Date:  20090830

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (0621, Radioman) medically separated for a left upper extremity (LUE) disability.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The MEB forwarded the following conditions for consideration by the Physical Evaluation Board (PEB):  “recurrent dislocation of joint of shoulder region, other postsurgical status, brachial neuritis or radiculitis NOS, displacement of cervical intervertebral disc without myelopathy, muscle weakness (generalized), other disorders of bone and cartilage.”  No other condition was submitted by the MEB.  The Informal PEB adjudicated “left upper extremity (LUE) weakness of ulnar muscles” as Category I: unfitting, rated 20%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB found the following conditions as Category II, related to the Category I condition but not separately unfit:  “C3-C4 bilateral uncinated process hypertrophies, C6-C7 minimal annular tear, C5-C6 chronic radiculopathy.”  Finally, the PEB found “left shoulder anterior labral detachment surgically treated” (along with three related conditions – see rating chart below) as Category III:  not separately unfitting and not contributing to the unfitting condition.  The CI requested a reconsideration of these findings after which the PEB reaffirmed the findings.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “VA ratings have increased due to conditions worsening.”

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:

Reconsideration IPEB – Dated 20090616	VA* - (~2 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
LUE Weakness of Ulnar Muscles	8610	20%	Left Ulnar Nerve Involvement Secondary to Cervical
Intervertebral Disk Syndrome	8512	20%*	20090715	
C3-C4 Bilateral Uncinated Process Hypertrophies	Cat II	Cervical IVDS	5243	10%	20090715	
C6-C7 Minimal Annular Tear	Cat II					
C5-C6 Chronic Radiculopathy	Cat II					
Left Shoulder Anterior Labral Detachment Surgically Treated	Cat III	S/P Left Shoulder Bankart Procedure with Residual Scars	7899-7804	0%	20090715	
Post Procedures Status	Cat III					
Status Post(S/P) Left Shoulder Surgical Repair	Cat III					
S/P Left Shoulder Dislocation	Cat III					
Other x 0 (Not In Scope)	Other x 6 	
RATING: 20%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20090930 (most proximate to date of separation [DOS]).
*VARD 20121108 increased Ulnar Nerve condition to 30% effective 20110809.

ANALYSIS SUMMARY:

LUE Condition.  The CI was right hand dominant.  The CI injured his left shoulder during a training exercise from a fall from a 100 foot cliff in November 2006.  Initially he sustained a dislocated shoulder which was reduced while in the field.  Although he did not seek medical attention, the CI reported continued left shoulder pain, weakness, and paresthesia (tingling sensation) subsequent to the fall.  A primary care note dated 19 March 2007 documented a 6-month history of left shoulder pain and grinding sensation with pull-ups and heavy lifting.  On physical examination there was left shoulder tenderness to palpation, 3/5 strength, crepitus, full range-of-motion (ROM), and positive tests for rotator cuff pathology.  Treatment records evidence that the CI reported recurrent shoulder dislocations and worsening LUE weakness.  A left shoulder X-ray performed in April 2007 was normal.  The CI underwent a course of physical therapy and a left shoulder subacromial injection in April 2007.  A left shoulder magnetic resonance imaging (MRI) study performed in July 2007 showed a soft tissue (labral) tear and prior injury to the head of the humerus (Hill-Sachs deformity).  An electromyogram (EMG) performed in June 2008 demonstrated chronic left  cervical spine level 5-6 (C5/6) nerve root compression (radiculopathy), and findings suggestive of either chronic left C8 and/or T1 radiculopathy.  On 23 June 2008, the CI underwent left shoulder arthroscopic surgery with repair of the soft tissue tear (Bankart repair) for stabilization.  A neurology evaluation documented LUE normal to minimally diminished muscle strength and grip.  Diagnoses rendered were probable left lower trunk nerve network disorder (brachial plexopathy), C5-6 chronic nerve root compression (radiculopathy), and LUE weakness of the ulnar nerve (the ulnar is innervated by C8 and T1 ± C7 roots as implicated on the EMG).  A cervical spine MRI performed in October 2008 showed C3-4 bilateral bone growth (uncinate process hypertrophies), left greater than right, and C6-7 minimal disc bulge.  The CI was given a 6-month LIMDU which started on 10 October 2008 for left brachial plexopathy and left shoulder surgery.  The MEB narrative summary (NARSUM) exam approximately 8 months prior to separation documented that the CI continued to have LUE weakness and pain rated at 3/10.  There were physical exam findings of shoulder flexion/extension 5/5, elbow flexion 5/5, extension 4/5, wrist flexion/extension 4+/5, small and ring finger extension 4/5 and thumb, index, middle finger flexion/extension 5/5 and reflexes were normal.  Sensation and grip testing was not in evidence.  The skull spine was nontender with full ROM.  The examiner opined that the CI was not capable of lifting heavy objects for extended distances or periods of time.  The physical therapist noted that the shoulder was non-tender with full ROM and normal strength.  There was no LUE instability demonstrated.  The MEB NARSUM Addendum, performed approximately 6 months prior to separation, documented that the CI had “some residual weakness in the LUE which may be related to his cervical disc problems.”  The CI was unable to lift heavy objects for extended distances or periods.  The physical examination demonstrated LUE full ROM and no evidence of recurrent instability.  The VA Compensation and Pension examination approximately 2 months prior to separation documented that the CI reported moderate pain associated with stiffness and spasm in the left shoulder and cervical spine.  The pain was worse with physical activities and improved by narcotic medication and medication for neurogenic pain.  The pain in the cervical spine radiated to the LUE with numbness and tingling down to the 4th and 5th digits of the left hand.  The CI denied any residual side effects from his left shoulder surgery.  He reported difficulty with heavy lifting and reaching overhead.  The physical examination demonstrated normal hand strength; painful motion of the cervical spine radiating to the LUE; C-5-6, C6-7 paraspinal muscle spasm.  There was also evidence of intervertebral disc syndrome with ulnar nerve distribution involvement.  The left shoulder examination demonstrated no evidence of painful motion, full ROM; normal motor strength; sensory deficits at the dorsal aspects of the left fourth and fifth digits, and normal reflexes.  X-rays of the cervical spine and left shoulder were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the LUE weakness of ulnar muscles condition as 8610  neuritis - upper radicular group (5th and 6th cervicals) and rated at 20%;  Paralysis of:  Incomplete:  Mild.  The VA coded the left ulnar nerve involvement secondary to cervical intervertebral disk syndrome condition as 8512 (lower radicular group) and rated at 20%; Paralysis of:  Incomplete:  Mild.  Multiple treatment notes documented subjective and objective LUE weakness with numbness and tingling radiation to the 4th and 5th digits.  The MEB examiner documented residual LUE weakness.  The MEB and VA examiners documented an inability to lift heavy objects for extended distances or periods.  There was no documentation that the LUE weakness interfered with the CI’s activities of daily living.  The CI had normal hand strength and no evidence of painful shoulder motion, weakness, or tenderness.  Board members agreed that the LUE weakness did not rise to the level of moderate for a 30% rating.  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 LUE condition.

Contended PEB Conditions.  The Category II (“Conditions that contribute to the unfit condition”) contended conditions adjudicated as not separately unfitting by the PEB were C6-7 minimal annular tear (cervical disc disease), bilateral uncinate process hypertrophies, and C5-6 chronic radiculopathy (LUE pain and weakness).  In order to be eligible for separate disability ratings Category II conditions must be reasonably justified as separately unfitting.  The bilateral uncinate process hypertrophies condition is the anatomical abnormality that resulted in the nerve root compression.  Nerve roots C3-4, C5-6, and C6-7 innervate the muscles of the arm which resulted in the LUE weakness.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board consensus was that Category II designations for the C6-7 minimal annular tear (cervical disc disease), bilateral uncinate process hypertrophies, and C5-6 chronic radiculopathy (LUE pain and weakness) conditions were appropriately recommended in this case.  The Category III (“Conditions that are not separately unfitting and does not contribute to the unfitting condition”) contended conditions adjudicated as not unfitting by the PEB were left shoulder anterior labral detachment, surgically treated, post procedures status, s/p left shoulder surgical repair and s/p left shoulder dislocation.  Category III conditions require that the preponderance of the evidence support a separately unfitting determination in order to be eligible for separate service disability ratings.  All fitness determinations must remain adherent to the DoDI 6040.44 “fair and equitable” standard.  The MEB examiner documented left shoulder full ROM and no evidence of recurrent instability.  The VA examiner documented that the CI denied any residual effects from his left shoulder surgery and no physical exam finding of painful motion or limited shoulder ROM.  Although the left shoulder surgery was identified for LIMDU, it was not implicated in the commander’s statement nor judged to fail retention standards.  All were reviewed and considered by the Board.  There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance.  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 left shoulder anterior labral detachment, surgically treated, post procedures status, s/p left shoulder surgical repair and s/p left shoulder dislocation contended conditions and, therefore, no additional disability ratings can be 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 LUE condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the C6-7 minimal annular tear and C5-6 chronic radiculopathy left shoulder anterior labral detachment, surgically treated, post procedures status, s/p left shoulder surgical repair and s/p left shoulder dislocation contended conditions; the Board unanimously recommends no change from the PEB determinations 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 20140312, 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 17 Aug 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 USMC
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXXX, former USN