RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX        	CASE:  PD-2014-02689
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20150317
SEPARATION DATE:  20050531 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Basic Trainee) medically separated for a right (dominant) shoulder condition.  The condition 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 condition “other joint derangement not elsewhere classified, shoulder region” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “right shoulder instability, status post revision capsulolabral [joint capsule and edge of bone socket] reconstruction” as unfitting, rated 10%, with presumptive application of the Veterans Affairs Schedule for Rating Disabilities (VASRD); but, reduced to 0% by a 10% reduction for existing prior to service (EPTS).   The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI requested that the Board review all of his conditions.  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 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: 

IPEB – Dated 20050307	VA (~5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder Instability ... [Surgical Residuals]	5099-5003	0%	Right Shoulder Instability ... [Surgical Residuals]	5201	10%*	20051019	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  10% with EPTS reduction by 10% = 0%	RATING:  10%*	
Derived from VA Rating Decision (VARD) dated 20051207 (most proximate to date of separation [DOS]).  
* The concluding VARD rating summary indicates a 0% rating, which is judged to be an erroneous transcription for an intended 10% rating.  The VARD rating narrative, itself, concedes service aggravation of an EPTS condition, opining that the pre-service rating was 0% (thereby supporting no deduction), and stating “We have assigned a 10 percent evaluation based on your VA examination.”

ANALYSIS SUMMARY:  

Right Shoulder.  In 1996 (6 years prior to service entry) the CI underwent surgical intervention for recurrent dislocations (anterior) of his right shoulder.  The service entry physical made no note of active shoulder pain or subjective instability; and, an orthopedic consult prior to entry documented a stable joint with full range-of-motion (ROM) and recommended “no restrictions/limitations.”  The service treatment record (STR) documented an onset of right shoulder pain within months of entry, and reports of dislocations with various activities are in evidence over the next 2 years.  The CI consequently underwent surgical intervention by the service (clinically described in the summary) on 30 June 2004 (11 months prior to separation).  Post-operative STR entries indicated a favorable course and restoration to full ROM.  The earliest ROM measurement after surgery recorded 125 degrees of forward flexion (for both forward flexion and abduction, 180 degrees is normal, and 90 degrees is the minimum compensable); and, measurements by 7 months prior to separation were 180 degrees for both forward flexion and abduction.  There is no STR evidence of any recurrent dislocations prior to separation and no recorded exam findings of joint instability or impingement after surgery.  The narrative summary (NARSUM) was conducted 1 February 2005 (4 months prior to separation).  The examiner stated, “Currently, the patient has no episodes of instability, but continues to have significant and activity limiting pain in the shoulder, and he is unable to do any weightbearing activities such as pushups or pull-ups or heavy resistance activities.”  The NARSUM physical exam documented “full” ROM, well-healed incisions, 5/5 strength at the shoulder girdle, minor laxity (grade I translation), and pain with apprehension at “extremes of motion.”  

A VA Compensation and Pension (C&P) examination was conducted 19 October 2005 (5 months after separation), and documented a right shoulder dislocation within a month of separation (June 2005) which required reduction in a civilian emergency room (ER).  Current symptoms were characterized as “daily episodes” of pain and “always feels like it’s about ready to dislocate however, he catches it in time before it dislocates.”  The VA physical exam documented the absence of spasm, tenderness, or joint laxity; and, the measured ROM was 180 degrees of forward flexion and abduction “without pain.”  Following the dislocation, a VA clinic note (15 months after separation) indicated there had been two more dislocations requiring ER reduction (civilian, no source records).  A VA orthopedic note from January 2007 (19 months after separation) documents a report of dislocations “occasionally” (some requiring ER reduction) which “occur when he is doing overhead activity.”  Rehabilitation therapy was recommended, and no post-separation surgery is in evidence in the VA file.

The Board directed attention to its recommendations based on the above evidence.  As noted above, the PEB conceded a 10% rating analogous to 5003 (degenerative arthritis); and, arrived at 0% based on the EPTS deduction.   The VA’s 10% rating was under 5201 (limitation of motion); and, as detailed in the above rating chart footnote, could not justify an EPTS deduction based on an assigned pre-service rating of 0%.  After careful deliberation, members agreed that the evidence at service entry did not support any VASRD ratable disability; thus concluded that there was no pre-service percentage to deduct (as per the VA opinion).  The Board therefore cannot support an EPTS deduction within the terms specified in VASRD §4.22 (rating of disabilities aggravated by active service) or in DoDI 1332.38 (E2.1.1) and DoDI 1332.39 (6.11.3).  Having concluded that an EPTS deduction was not adequately justified, members turned to the appropriate coding and rating recommendation for the condition.  The PEB’s pre-deduction rating of 10% under 5003 is reasonable with concession to VASRD §4.59 (painful motion) or §4.40 (functional loss) to achieve the minimum compensable rating in the face of non-compensable ROM limitation.  The VA’s choice of code 5201 (conferring a minimum 20% rating for limitation of motion at shoulder level [90 degrees]) is not compatible with a 10% rating; and, for that matter, a minimum compensable rating under any code is difficult to reconcile with the C&P findings of normal ROM without painful motion.  Other than 5003 based rating, the only other VASRD §4.71a joint code open to consideration in this case is analogous rating under 5299-5202 (humerus, other impairment of).  This provided ratings for “recurrent dislocation of the scapulohumeral joint”: 30% (major) for “frequent episodes and guarding of all arm movements”, and 20% for “infrequent episodes, and guarding of movement only at shoulder level.”  Although the VA evidence reported shoulder dislocations soon after separation, there was no such service evidence in the 11 months after surgery preceding separation; and, exams from that period indicate that the joint was stable.  There were likewise no clinical entries suggesting that there was significant guarding of arm movements as required for 5202 rating.  It is also relevant that the reported post-separation instability was not associated with objective findings warranting surgery.  Members agreed, therefore, that analogous rating under 5202 could not be justified for recommendation; and, that 10% was the maximum achievable rating under §4.71a.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the right shoulder condition; without need for a change from the PEB code of 5099-5003.

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 for rating.  In the matter of the right shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Instability with Surgical Residuals, Right Shoulder	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140527, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
      (b) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX   	 
      (c) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 23 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
	(k) PDBR ltr dtd 19 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX
      (l) PDBR ltr dtd 18 Nov 15 ICO XXXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (l) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     b. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     d. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge. 

     e. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

     g. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     h. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     i. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     j. XXXXXXXXXXXXXXXXXXXXX former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.

     k. XXXXXXXXXXXXXXXXXXXXX former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
     
3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

	XXXXXXXXXXXXXXXXXXXXX
	Assistant General Counsel
	(Manpower & Reserve Affairs)