RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02304
BRANCH OF SERVICE:  Navy	SEPARATION DATE:  20080317

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Aviation Machinist’s Mate, medically separated for “right shoulder instability…” and “left shoulder instability…,” each rated 10%, with a combined disability rating of 20%.

CI CONTENTION:  The CI requests that all conditions be considered.  The CI’s 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 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 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 - 20071019	VARD - 20080425	
Condition	Code	Rating	Condition	Code	Rating	Exam	
R Shoulder Instability…	5299-5003	10%	Right Shoulder…Surgical Repair	5201-5024	10%	20080425	
L Shoulder Instability…	5299-5003	10%	L Shoulder…Surgical Repair…	5201-5024	10%	20080425	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Right Shoulder Instability and Left Shoulder Instability.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right-hand dominant CI underwent left shoulder surgery on 27 October 2006 for a torn labrum. The right shoulder also underwent labrum surgery the following year on 08 August 2007.

The 4 October 2007 MEB NARSUM evaluation, 6 months prior to separation, the CI complained of bilateral shoulder popping and clicking, with left shoulder pain and instability, which prevented push-ups or pull-ups.  Left shoulder subluxation (temporary or partial dislocation) was reported, but complete (frank) dislocations were denied.  The right shoulder physical examination, performed 7 months after surgery, showed tender surgical scars, no instability and some muscle weakness.  Range of motion (ROM) was flexion to 160 degrees (normal 180) and abduction to145 degrees (normal 180); painful motion was not addressed.  The examiner concluded that the CI was progressing well following right shoulder surgery.  The left shoulder physical examination, performed 17 months after surgery, showed mild to moderate instability to the forward part of the labrum.  Muscle strength was normal.  ROM was full; painful motion was not addressed.  The examiner concluded that the CI’s left shoulder was not progressing after surgery with continued chronic pain and instability.

At the 17 October 2007 VA Compensation and Pension (C&P) examination, 5 months prior to separation, the CI reported bilateral shoulder pain, weakness, stiffness, giving way, and lack of endurance.  He reported bilateral shoulder dislocations from opening doors.  Physical examination showed tenderness on each of the shoulders, but no swelling, weakness, fluid buildup, guarding of movement, or subluxation.  Bilateral neurologic examination and radiologic studies were within normal limits.  Right shoulder ROM was flexion to 180 degrees and abduction to 130 degrees with pain limited motion.  Left shoulder ROM was flexion to 160 degrees and abduction to 95 degrees also with pain limited motion.  Neither shoulder was additionally limited after repetitive use.  There were not subsequent VA shoulder ROM examinations.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated each shoulder condition 10%, analogous coded 5003 (degenerative arthritis).  The VA also rated each shoulder condition 10%, analogously coded 5201-5024 (arm, limitation of motion-tenosynovitis), based on the C&P examination 5 months before separation, citing pain limited motion.

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 panel majority agreed, although there was insufficient limitation of motion to support a rating under the 5201 code, panel members agreed that a 10% rating was justified for each shoulder with application of VASRD §4.59 (painful motion).  There was no malunion or recurrent dislocation of the humerus to justify a rating under the 5202 code (humerus, other impairment of); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under the 5203 code (clavicle or scapula, impairment of). 

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral shoulder condition.  

BOARD FINDINGS:  In the matter of the left shoulder instability and right shoulder instability and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the Board’s scope of review for consideration.  The panel, 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 20150901, w/atchs
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

      In accordance with reference (a), I have reviewed the cases listed below and 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:

		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USN
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USMC
		- XXXXXXXXXXXXXXXXXX, former USN

		
		XXXXXXXXXXXXXXXXXX

MINORITY OPINION:  The minority voter recommends a 20% rating for left shoulder arm limitation of motion, opposed to the majority vote 10% rating for left shoulder instability.

The CI received left shoulder surgery on 27 October 2006 for a torn labrum.  There were only two (scant) left shoulder ROMs performed after this surgery:  MEB NARSUM (6 months before separation) and C&P examinations (5 months before separation).  The minority voter finds that the C&P examination has the highest probative value based on:  VASRD §4.59 (painful motion) was addressed; repetitive ROMs were taken to address DeLuca requirements, and this examination was most proximate to separation.

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 C&P examination documented abduction at 95 degrees which demonstrated motion limited to this shoulder level.  The VASRD shoulder limitation of motion criterion "at shoulder level” is not intended to be rigidly interpreted as exactly 90 degrees.  Based on the scant post-surgical left shoulder ROM, it is reasonable to find the CI’s left shoulder abduction ROM rated 20%, coded 5201 at separation.

Consistent with the DoDI 6040.44 standard that Physical Disability Board of Review recommendations are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that the CI’s disability separation be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Right Shoulder Instability	5299-5003	10%	
Left Shoulder Pain	5201	20%	
COMBINED	30%