RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01813
BRANCH OF SERVICE:  MARINE CORPS	BOARD DATE:  20150120
SEPARATION DATE:  20090530

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Basic Marine) medically separated for left shoulder separation and related shoulder strain.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The “closed dislocation of acromio-clavicular (AC) (joint)” and “pain in joint involving shoulder region,” were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded genital warts as meeting retention standards.  The Informal PEB adjudicated Type 3 left AC separation as unfitting rated at 20%, citing application of the VA Schedule for Rating Disabilities (VASRD), as part of the pilot (Integrated) Disability Evaluation System (DES) process.  The scapulothoracic strain was determined to be a Category II condition (contributing to the unfitting condition, but not separately unfitting); the genital warts condition was Category III (not separately unfitting and do not contribute to the unfitting condition).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please Consider All Conditions”

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 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 20090406	VA* - (~5 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Type 3 Left AC Separation	5201	20%	Type 3 Left AC Separation	5201	20%	20090114	
			Scars, Post … Surgery	7804	10%	20090114	
Scapulothoracic Strain	Cat II	Left Scapulothoracic Strain	5237	10%	20090114	
Genital Warts	Cat III	Genital Warts	7899-7806	0%	20090114	
Other x 0 (Not In Scope)	Other x 1	
RATING:  20%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20090324 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:

Left Shoulder Separation.  Review of the record shows that the CI injured his dominant left shoulder playing hockey about 1-year prior to accession.  The injury was recorded as both an AC separation and also as a dislocation.  Regardless, he apparently recovered and was noted as having “no trouble with push-ups or pull-ups.”  He denied any acute trauma, but noted pain with daily activities including overhead activities and log rolls.  On 11 February 2008, less than 8 weeks after accession, an X-ray of the left shoulder showed a subluxation (partial separation) of the AC joint (ACJ) with degenerative changes consistent with prior trauma.  Subsequently, he noted dislocation of his left shoulder on a hike when his pack slipped.  A magnetic resonance imaging on 2 April 2008 was consistent with the old ACJ injury, but the shoulder itself was unremarkable.  The CI was noted to have instability when seen in orthopedics 3 weeks later.  He underwent rehabilitation and duty restriction until he had surgery on 4 June 2008.  This was followed by rehabilitation in physical therapy.  He remained symptomatic and then underwent a second shoulder surgery on 26 September 2008 for a ligamentous repair.  Following surgery, he again was placed in rehabilitation, but his pain and limited motion persisted.  The narrative summary for the medical board was dated 15 December 2008.  It noted the pre-service injury, but then recorded that he had fallen in boot camp with a shoulder dislocation.  This history is not consistent with the contemporaneous records.  On examination, he had pain throughout the range-of-motion (ROM).  The ACJ was widened from normal despite the surgery done to correct it in September 2008.

At the VA Compensation and Pension examination performed a month later on 14 January 2009, just over 4 months prior to separation and less than 4 months after surgery, the CI reported that he used a support brace several hours a day for his shoulder, but denied incapacitation.  The ROM was reduced and painful as charted below.  The clavicle was elevated and the ACJ tender to palpation.  The scar was noted to be tender to palpation.  He was evaluated in pain management on 20 April 2009, a month prior to separation and reported continued pain.  The ROM was noted to be significantly reduced on examination and he had a sensory loss in a C4 distribution.  On 10 September 2009, 4 months after separation, almost a year after surgery, the CI was evaluated in orthopedics for persistent pain of the left shoulder.  The ROM was noted to be full with excellent power (motor function) and without instability.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Shoulder ROM
(Degrees)	MEB ~6 Mo. Pre-Sep	VA C&P ~5 Mo. Pre-Sep	VA Ortho~3.5 Mo. Post-Sep	
Flexion (180 Normal)	145	90	Full	
Abduction (180)	100	90	Full	
Comments	AO	AO	No instability; pain aggravated with activity	
§4.71a Rating	10%	20%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both used code 5201 (limitation of motion) and rated the Type 3 left AC separation condition at 20% as part of the Integrated DES process.  The Board noted that the MEB examination and the post-separation examination support only a 10% rating using this code.  The Board also considered code 5203 (malunion of the clavicle), but this also only would support a 10% rating.  After due deliberation in consideration of the §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for Type 3 left AC separation condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the scapulothoracic strain and genital warts contended conditions 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 genital warts condition was not profiled or implicated in the commander’s statement and was not considered by the MEB.  The shoulder pain condition was included in the duty limiting condition by the commander and listed by the MEB as not meeting retention standards.  However, the MEB summary only noted the AC separation and ligament repair under the diagnoses and the orthopedic evaluation post-separation showed a stable shoulder with normal ROM and power.  The impairment from the scapulothoracic strain would be limitation in the shoulder and is subsumed under the unfitting left shoulder separation condition.  Both were reviewed and considered by the Board.  There was no performance based evidence from the record genital wart condition significantly interfered with satisfactory duty performance at the time of separation or that the scapulothoracic strain condition was separately unfitting.  Regardless, the scapulothoracic strain condition would not be separately ratable IAW VASRD §4.14, avoidance of pyramiding.  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 adjudication for either of the contended scapulothoracic strain and genital warts conditions, and so no additional disability ratings are 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 Type 3 left AC separation condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended scapulothoracic strain and genital warts 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 20140421, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXXXX
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 25 Jun 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 USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX , former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USMC
-	XXXXXXXXXXXXXXXXXXXX, former USN

XXXXXXXXXXXXXXXXXXXX
Assistant General Counsel (Manpower & Reserve Affairs)