RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01523
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 active duty E5, Light Armored Vehicle Crewman, medically separated for “chronic right shoulder pain” with a disability rating of 10%.  

CI CONTENTION:  He was given a higher rating by the Veterans Administration.  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 - 20060907	VARD - 20070314	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Shoulder Pain	5304	10%	Degenerative Joint Disease of the Right Shoulder	5299-5203	10%	20061114	
Low Back Pain	Not Unfitting	Degenerative Arthritis, Lumbar Spine	5242	10%	20061114	
Anxiety Disorder, NOS	Not Unfitting	PTSD	9411	30%	20061113	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Right Shoulder Pain.  The CI was right hand dominant.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right shoulder condition began in December 2003 after martial arts training.  He underwent arthroscopic anterior labral repair in May 2004 for instability.  He was rehabilitated and returned to duty, but had an exacerbation while performing pull-ups.  

Due to continuing pain and right shoulder limitations the CI underwent a second arthroscopic surgery in June 2006 (4 prior to separation) with lysis of adhesions, manipulation under anesthesia, and a selective capsulectomy (the rotator cuff was intact and there was no chondromalacia).  The MEB forwarded “pain in joint involving shoulder region” to the PEB  

The range of motion (ROM) examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Right Shoulder ROM
(Degrees)	PT ~4 Mo. Pre-Sep	VA C&P ~1 Mo. Post-Sep	
Flexion (180 Normal)	150	160	
Abduction (180)	130	160	
Comments:  Surgery ~4 Mo. Pre-Sep	Posterior sublux w/ flexion	Painful motion; tender	
§4.71a Rating	10%	10%	

At the NARSUM examination on 28 June 2006, 4 months prior to separation, the CI was approximately 3 weeks post-operative.  The CI was continuing rehabilitation and continued to have right shoulder pain and limited motion.  Passive ROM was to 160 degrees for flexion with no indication of active ROM.  There was no motor or neurovascular deficit of the right upper extremity and shoulder incisions were healing well.  At the PT exam the following day, the CI reported continued right shoulder pain with popping and feeling of subluxation with horizontal adduction and feeling the shoulder was 'loose' in general.  Active ROMs are as charted above.  

At the VA Compensation and Pension (C&P) examination in November 2006, performed 1 month after separation, the CI reported chronic right shoulder pain with stiffness, weakness with and lack of endurance with activity.  The CI reported that shoulder and back pain limited his ability to take a shower and dress himself.  Physical exam showed well healed scars on the right shoulder.  The shoulder was tender with painful ROM as charted above, with zero degrees of increased limitation on repetition.  The diagnosis was degenerative joint disease of right shoulder joint.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5304 code (muscle group IV).  The VA assigned a 10% rating using an analogous 5203 code (clavicle or scapula, impairment) based on the VA C&P examination 1 months after separation, citing malunion or nonunion of the clavicle or scapula without loose movement.  Later VARDs indicated a temporary 100% convalescent rating for surgery effective September 2008, then a 20% rating (for flexion to 90 degrees) effective November 2008.  

The VASRD §4.71a threshold for rating for ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion above this level.  The ROM examinations demonstrated motion above shoulder level which did not support a higher rating under diagnostic code 5201.  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) as adjudicated by the PEB (using a code commonly applied for rotator cuff injuries).  There was not sufficient evidence for a moderately severe muscle injury IAW VASRD §4.56 (evaluation of muscle disabilities) for the next higher rating under any muscle coding.  There was no nonunion with loose movement and no dislocation of the clavicle or scapula to warrant the next higher 20% rating under the 5203 code.  There was likewise no route to a higher rating for limitation of motion (5201) or for malunion or recurrent dislocation of the humerus (5202).  

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 low back pain and anxiety disorder, not otherwise specified (NOS) were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The low back pain was not judged to fail retention standards; however, the NASRUM psychiatric addendum indicated regarding the diagnosis of anxiety disorder “it is felt that these symptoms interfere to the level that prevent further active duty service and will have a significant negative impact in (the CI’s) civilian adaptability.”  The low back pain and anxiety disorder NOS conditions were not part of any LIMDU or implicated in the non-medical assessment (NMA).  The NMA statement implicated only the shoulder injury, did not mention any symptoms attributable to any mental disorder, and recommended the CI’s retention on active duty in a permanent limited duty status, if found Unfit.  There was no performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 contended low back pain and anxiety disorder NOS conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the right shoulder condition and IAW VASRD §4.73 and §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended low back pain and anxiety disorder NOS 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.  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 20140327, with attachments
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 31 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:

		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXXXX, former USMC

						XXXXXXXXXXXXXXXXXXXX
	     				  	Assistant General Counsel
						(Manpower & Reserve Affairs)