RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02538
BRANCH OF SERVICE:  MARINE CORPS 	SEPARATION DATE:  20060930

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Marine Corps Reserve E-6 (Field Radio Operator) medically separated for right shoulder pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB).  The “pain in joint involving shoulder region” and “shoulder joint replacement status” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The MEB also identified and forwarded one other condition (stiffness of joint, not elsewhere classified, involving shoulder region) for PEB adjudication.  The Informal PEB adjudicated the right shoulder pain as unfitting, rated 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be Category II (contributing to the unfitting condition).  Although not forwarded, the PEB also identified and adjudicated six other conditions detailed in the chart below and rated them Category III (not separately unfitting and does not contribute to the unfitting condition).  The CI appealed to the Reconsideration PEB (RPEB), which affirmed the PEB findings and rating, and was medically separated.

CI CONTENTION:  The applicant has asked for consideration of all conditions in his application.  His complete submission is at Exhibit A.

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 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:  

RPEB – Dated 20060816	VA* - ~7 Months  Post-Separation 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Residual Pain and Stiffness	5299-5003	10%	Status Post Right Shoulder Surgery	5201	10%	20070109	
Status Post Right Shoulder Diagnostic Arthroscopy and Bursectomy with Partial Decompression	Cat II	No VA Placement	
Mild Spinal Canal Stenosis at L5-S1 with Moderate Compromise of the Left Lateral Recess	Cat III	Degenerative Arthritis Lumbar Spine	5242	10%	20070109	
The Spinal Canal and Neural Foramina are Near Normal in Caliber at the Upper Three Lumbar Levels	Cat III					
Two Views of the Coccyx Show No Focal Osseous Defect of Mal-alignment 	Cat III					
Mild Spinal Canal Stenosis at L4-5 with the Canal Measuring Approximately 8mm in Maximal AP Dimension	Cat III					
Prolonged Tibial H-Reflex Latency on the Left. S1 Radiculopathy on the Left	Cat III	No VA Placement	
Abnormal Because of the Prolonged Tibial H-Reflex Latency on the Left	Cat III		
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 5 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20070402 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Shoulder Residual Pain and Stiffness.  A magnetic resonance imaging (MRI) study dated 4 May 2005 documented a history of right shoulder pain.  The study revealed moderate impingement subacromial space (anterior shoulder), mild inflammation the supraspinatus (one of the rotator cuff muscles) tendon, and degenerative changes of the humeral head.  The CI was treated with physical therapy, anti-inflammatory medications, and steroid injections without relief.  On 13 June 2005, the CI underwent right shoulder arthroscopic partial decompression (removal of a section of the acromion) and bursectomy (removal of the bursa) surgery.  Despite postoperative physical therapy, the CI continued to report right shoulder pain.  At the narrative summary (NARSUM) examination the CI reported significant discomfort with weight bearing activities, lifting greater than ten pounds over head, push-ups, and pull-ups.  He was employed in a warehouse and had symptoms with heavy overhead lifting.  He used anti-inflammatory medication as needed for pain.  On physical examination he had full active range-of-motion (ROM), tenderness along the acromion, but no evidence of shoulder instability.  A diagnosis of right shoulder residual pain and stiffness status post arthroscopy was rendered.  At the VA Compensation and Pension (C&P) examination performed 7 months after separation, the CI reported constant right shoulder pain without incapacitating episodes.  The examiner noted that the CI was right hand dominant and that there was full, but painful motion beginning at 160 degrees. A diagnosis of right shoulder torn ligament status post surgery with arthroscopic scars was rendered.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA rated the right shoulder condition at 10%, coded 5099-5003 (analogous to degenerative arthritis) and 5201 (arm limitation of motion), respectively.  The Board considered whether the evidence supported a higher than 10% rating.  There was no evidence of incapacitating episodes or limitation of motion to shoulder level for a higher rating.  The Board also considered the PEB’s Category II designation for the right shoulder surgery.  There was no evidence of unfitting postsurgical instability, painful scars, or nerve involvement for additional rating.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the right shoulder condition and the right shoulder arthroscopy Category II designation were appropriately recommended in this case.  The Board concluded therefore that this condition could not be recommended for additional disability rating.  

Contended PEB Conditions. 

Mild Spinal Canal Stenosis and S1 Radiculopathy.

Thoracolumbar ROM
(Degrees)	MEB ~9 Mo. Pre-Sep
(20060118) 	VA C&P ~7 Mo. Post-Sep
(20070109) 	
Flexion (90 Normal)	Not recorded	90	
Extension (30)		30	
R Lat Flexion (30)		30	
L Lat Flexion (30)		30	
R Rotation (30)		30	
L Rotation (30)		30	
Combined (240)	N/A	240	
Comment	N/A	Painful motion	
§4.71a Rating	N/A	10%	

The Board’s main charge is to assess the fairness of the PEB’s determination that multilevel mild lumbosacral spinal canal stenosis and S1 radiculopathy on the left 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 multilevel mild lumbosacral spinal canal stenosis (mild spinal canal stenosis at L5-SI with moderate compromise of the left lateral recess, the spinal canal and neural foramina are near normal in caliber at the upper three lumbar levels, two views of the coccyx show no focal osseous defect or mal-alignment, mild spinal canal stenosis at L4-5 with the canal measuring approximately 8mm in maximal AP dimension) and S1 radiculopathy (abnormal because of the prolonged tibial H-reflex latency on the left, prolonged tibial H-reflex latency on the left) on the left were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  Treatment records evidence that the CI presented on 5 June 2006 with a 4-day history of lower back numbness radiating down the left leg to the toes.   He was diagnosed with intermittent sciatica and treated conservatively.  An MRI dated 17 February 2003 revealed mild canal stenosis at L4-5 and L5-S1 lumbosacral levels.  An electromyogram performed 18 February 2006 study suggested bilateral L5 and radiculopathy.  A primary care note dated 20 March 2006 noted that the CI continued with physical therapy and home exercises.  At the VA examination the CI reported lower back stiffness, and pain occurring once per month for 10 days.  The crushing, aching, sharp pain radiated down the buttocks, rated 10/10 and was elicited by physical activity.  It was either resolved without intervention or was relieved by rest and narcotic medication.  The CI reported incapacitating episodes as often as one time per year, which lasts for 14 days.  The VA back examination demonstrated full active ROM, no evidence of radiating pain on movement, and negative radiculopathy testing.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that the lower back and sciatica 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 lower back pain and sciatica contended 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 right shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended multilevel mild lumbosacral spinal canal stenosis and S1 radiculopathy on the left 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 20140531, 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 8 Jan 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:

- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN   
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN  
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USN 
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USMC 
- XXXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXXX, former USMC 

					XXXXXXXXXXXXXXX
	     				 Assistant General Counsel
					(Manpower & Reserve Affairs)