RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02065
BRANCH OF SERVICE:  Navy 	SEPARATION DATE:  20070313

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Machinist Mate, medically separated for “loss of motion and persistent pain s/p right shoulder arthroscopic stabilization and superior labrum anterior and posterior (SLAP) repair,” with a disability rating of 10%; however, reduced to 0% for non-compliance.  

CI CONTENTION:  “Review all conditions.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel 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 - 20061206	VARD - 20070530	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Loss of Motion and Persistent Pain S/P Right Shoulder Arthroscopic Stabilization and Superior Labrum Anterior and Posterior Repair	5099-5003	0%	Right Shoulder, Status Post SLAP and Bankart Repair	5201-5024	10%	20061220	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10% 	

ANALYSIS SUMMARY:  

Loss of Motion and Persistent Pain Right Shoulder.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right shoulder condition was reported in March 2006 after “popping” out repeatedly in the absence of trauma, but with strenuous use of the arm.  A later note indicated the CI’s shoulder popped in April 2005 when he grabbed a ladder while his ship was rolling.  In September 2005 he had three subluxations while playing softball in September 2005.  Orthopedic evaluation on 8 March 2006 revealed atrophy of the right shoulder muscles, tenderness on palpation at the bicipital groove, abduction to 90 degrees, and flexion to 110 degrees.  The CI was referred for physical therapy and sports rehabilitation.  A magnetic resonance imaging (MRI) arthrogram on 21 April 2006 demonstrated a Hill-Sachs (depression in the posterolateral head of the humerus) and Bankart (injury of the anterior (inferior) glenoid labrum of the shoulder due to anterior shoulder dislocation) lesions and a small superior labral tear in the 11-12 O’clock position.  The CI underwent right shoulder surgery on 16 June 2006 for arthroscopic stabilization and a superior labrum anterior and posterior (SLAP) repair.  The CI had good stability with no recurrent instability episodes post-surgery; however, he still had pain in his shoulder.

The 23 October 2006 MEB NARSUM evaluation, 5 months prior to separation, noted complaints of shoulder pain, rated 6-7/10, with some numbness over the fourth and fifth digits of the right hand.  The CI was not able “to do significant overhead lifting because of persistent shoulder pain despite adequate stabilization.”  Physical examination showed no evidence of instability, effusion or swelling.  There were negative apprehension (to determine anterior laxity), sulcus (to determine inferior laxity), and O’Brien (to determine a SLAP lesion) tests, and no pain with cross arm and loading of the posterior labrum.  Range of motion (ROM) measurements showed flexion of 160 degrees (normal 180) and abduction 160 degrees (normal 180).  The examiner noted that the CI stopped physical therapy secondary to continued pain in his shoulder.  The examiner’s diagnosis was loss of motion and persistent pain status post right shoulder arthroscopic stabilization and superior labrum anterior and posterior repair.   

During the 21 November 2006 MEB examination (recorded on DD Forms 2807-1 dated 7 November 2006 and 2808), 4 months prior to separation, the CI reported arthroscopic surgery on his right shoulder with some numbness and tingling in his right hand and arm and was in frequent pain.  Physical examination showed scars of the anterior and posterior shoulder with slight keloid formation s/p right shoulder anterior labral repair.  
 
At the 20 December 2006 VA Compensation and Pension (C&P) examination, 3 months before separation, the CI reported constant right shoulder pain, rated 6/10, and that his instability has improved and he had no subluxation.  He also reported occasional numbness of the fourth and fifth fingers, but that was very rare.  Physical examination showed no atrophy, mild pain, no spasm or weakness, and mild tenderness on palpation.  Repetitive motion showed no additional loss of ROM because of pain, fatigue, weakness, or lack of endurance.  The right shoulder was stable and ROM measurements showed a flexion of 160 degrees and abduction 160 degrees with mild painful motion.  X-rays of the right shoulder on 20 December 2006 showed no acute fracture dislocation of the right shoulder and cystic changes in the glenoid, which may have been postsurgical.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition 0%, coded 5099-5003 (arthritis, degenerative), citing a non-compliance reduction of 10% from the initial rating of 10%.  The VA rated the right shoulder condition 10%, coded 5201-5024 (arm, limitation of motion-tenosynovitis), citing ranges of motion with pain.  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.  However, panel members agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion).  There was no malunion or recurrent dislocation of the humerus and no dislocation or nonunion of the clavicle or scapula to justify a higher rating under the 5202 (humerus, other impairment of) or 5203 (clavicle or scapula, impairment of) codes. 

While non-compliance with generally acceptable medical standards of care can affect the severity of a ratable condition, it is not possible for the panel to determine without resorting to speculation what the CI’s level of impairment would be if he were receiving standard medical treatment.  Likewise the panel is not capable of determining without resorting to speculation whether the CI would be able to tolerate standard medical treatment.  Additionally, there are many legitimate reasons for non-compliance including treatment side effects, lack of understanding of either the treatment itself or its importance for well-being, and lack of access (or knowledge of how to access care).  Many factors may affect the CI’s judgment regarding compliance.  In the absence of clear evidence supporting a deliberate resort to non-compliance to affect severity and disability rating, the panel must rate the condition as it was at the time of separation, not how it would have been if the CI were compliant.  Furthermore, once a condition is determined to be unfitting, the panel must rate the condition IAW VASRD guidelines.  The VASRD rating criteria for the right shoulder pain condition does not incorporate non-compliance as a deduction for rating.  Although the PEB made a rating deduction for treatment non-compliance, the panel considered its rating recommendation based solely on the impairment and the guidelines of the applicable VASRD diagnostic codes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the loss of motion and persistent pain right shoulder condition.    

BOARD FINDINGS:  In the matter of the loss of motion and persistent pain right shoulder condition, the panel unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Loss of Motion and Persistent Pain Right Shoulder 	5099-5003	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150725, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

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

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 26 Jun 17 XXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 26 Jun 17 XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 20 Jun 17 XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 25 Nov 16 XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 16 Jun 17 XXXXXXXXXXXXXXXXXX
   (g) PDBR ltr dtd 20 Jun 17 XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (f) are approved.  The official records of the following individuals are to be corrected as follows:

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

     b. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 20 percent) effective date of discharge.     

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

     d. XXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Temporary Disability Retired List for six months beginning date of discharge with a 50 percent combined disability rating and a final rating thereafter of 20 percent.  

     e. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.   
     
3.  Please take action to implement these decisions.

	XXXXXXXXXXXXXXXXXX

	Acting,