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DEPARTMENT  OF THE NAVY
SECRETARY OF THE NAVY COUNCIL OF REVIEW BOARDS 720 KENNON STREET SE STE 309
WASHINGTON NAVY YARD DC 20374-5023

IN REPLY REFER TO

1850
CORB:003
12 Feb 20

From: To:

Director, Secretary of the Navy Council of Review Boards 
PD-2017-00605

Subj:	PHYSICAL DISABILITY BOARD OF REVIEW (PDBR)

Ref:	(a) DoDI 6040.44
(b) PDBR ltr of 7 Nov 18

1.	Pursuant to reference (a), the PDBR reviewed your case and forwarded its recommendation (reference (b)) to the Department of the Navy for  appropriate
·action.

2.	On 31 January 2020, the Assistant Secretary of the Navy took action in your case by accepting the correct recommendation of the PDBR.	Accordingly, your records will be corrected to reflect an increase in the disability rating awarded by the Physical Evaluation Board from 20 to 40 percent with assignment to the Permanent Disability Retired List.

3.	The Assistant Secretary's determination, which represents final action in your case by the Department of the Navy, was sent to the office of the Deputy Commandant, Manpower and Reserve Affairs, for correction of your records as stated above.	You will be notified once those changes are complete.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxx	CASE:  PD-2017-00605
BRANCH OF SERVICE:  Marine Corps	SEPARATION DATE:  20050913

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, medically separated for “right shoulder status post [s/p] superior labrum anterior to posterior repair” and “left shoulder bicipital tendinitis,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  The VA rated higher for the shoulders and lumbosacral strain.  He also requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the MEB, but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20050531	VARD - 20060307	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Shoulder S/P Repair	5099-5003	10%	Advanced Internal Derangement, Right Shoulder (Major), with Slap Lesion	5201	30%	20050607	
Left Shoulder Bicipital Tendinitis	5099-5003	10%	Internal Derangement, Left Shoulder	5201	20%	20050607	
Chronic Low Back Pain	Not Unfitting	Chronic Lumbosacral Strain with Early Degenerative Changes	5003-5237	0%	20050607	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Right Shoulder Status Post Superior Labrum Anterior to Posterior Repair.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s right (dominant) shoulder condition began in September 2003 when he underwent an arthroscopic superior labrum anterior and posterior (SLAP) repair which extended down his arm to the 4 o’clock position in the anterior Bankart region.  Following the surgery, he continued to have increased pain along the front of his right shoulder.  

The 30 March 2005 MEB NARSUM examination, 6 months prior to separation, noted CI complaints of increasing pain to the front of the right shoulder which prevented him from doing overhead activities.  Physical examination showed a right shoulder surgical scar.  Range of motion (ROM) testing revealed flexion of 150 degrees (normal 180) and “adduction 150 versus 170 on the other side” (likely typo with abduction normal 180).  Impingement tests were mildly positive.  

An MRI arthrogram on 5 April 2005 documented a recurring SLAP lesion and multiple partial tears with acromioclavicular (AC) joint arthrosis.  During the 21 April 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months before separation, physical examination showed pain on flexion, abduction, internal and external rotation of the right shoulder.  

At the 7 June 2005 VA Compensation and Pension (C&P) examination, 3 months prior to separation, the CI reported right hand pain with decreased ROM.  Physical examination showed limited right shoulder forward flexion to 120 degrees with significant pain starting at 90 degrees.  Abduction was limited to 90 degrees with pain starting at 80 degrees and by 90 degrees, he had significant pain.  The CI could not lift anything more than gravity about 90 degrees in abduction or 100 degrees in forward flexion.  Pain was present to palpation over the infraspinatus, superior glenoid, and the acromion.  There was excellent use of the hand, but only with the right elbow tucked into the side.  The examiner diagnosed advanced right shoulder internal derangement (with SLAP lesion and multiple rotator cuff tears) and opined that the CI had very little shoulder capability that did not allow anything but sedentary work.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition 10%, analogously coded 5099-5003 (arthritis, degenerative).  The VA rated the right shoulder condition 30%, coded 5201 (arm, limitation of motion), based on the C&P examination, citing limitation of arm motion midway between side and shoulder level.  In deliberating over the somewhat conflicting examinations, members agreed that the C&P examination carried the preponderant probative value because it was closest to and prior to separation, more consistent with the underlying pathology, and more detailed regarding functional use.  The VASRD §4.71a threshold for rating ROM impairment under code 5201 is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion limited to this level.  The next higher 30% rating for the dominant arm requires motion limited to “midway between side and shoulder level.”  Although there were some indications of decreased hand/arm functioning above chest level, examinations did not reflect arm limitation midway between the side (0 degrees) and shoulder level (90 degrees).  There was no malunion with marked deformity or frequent episodes of recurrent dislocation of the humerus to justify a higher rating under code 5202 (humerus, other impairment of), and no higher ratings available under code 5203 (clavicle or scapula, impairment of).  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the right shoulder condition, coded 5201.  

Left Shoulder Bicipital Tendinitis.  According to the STR and MEB NARSUM, the CI’s left shoulder pain began in 2004 without specific injury.  Evaluation on 3 February 2005 documented complaints of painful motion, feeling that the arm would “give out with any exertion,” and “popping” when bringing the arm down after overhead work.  Examination documented left shoulder flexion of 180 degrees and abduction of 160 degrees with crepitus.  There were positive findings for painful motion and impingement, and the provider diagnosed left rotator cuff tendinitis and impingement syndrome.  

The MEB NARSUM examination noted CI complaints of continued left shoulder pain.  Physical examination showed flexion and “adduction” [likely abduction] to 170 degrees.  Evaluation on 12 May 2005 recorded complaints of left shoulder pain for 18 months, with pain worsened by raising the arm above the head, but minimal weakness reported.  The examiner documented left shoulder painful motion with flexion and abduction to 180 degrees and normal rotator cuff strength (5/5 compared to 4/5 on the right), and diagnosed chronic left shoulder tendonitis.  

At the C&P examination, the CI reported significant left shoulder discomfort and pain (less than on the right) with decreased ROM.  Marked pain occurred when he tried to reach above chest level.  Diagnostic imaging revealed mild flattening of the anterior humeral head suggestive of prior dislocation.  Physical examination showed clicking, snapping and crepitus in the left shoulder, and that the CI could forward flex 0 to 80 degrees with “significant weakness and discomfort from 120 to 180.”  Abduction was to 110 degrees and limited to 100 degrees against gravity.  There was a very positive biceps load test with “tremendous crepitus” and pain over the glenoid rim and biceps tendon.  Speeds testing (for macroscopic biceps/labral pathology) was also positive.  The examiner stated “he cannot use his left arm above mid chest level or the hand outside of the plane in front of him.”  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left shoulder condition 10%, analogously coded 5099-5003.  The VA rated the left shoulder condition 20%, coded 5201, based on the C&P examination, citing limitation of arm motion midway between side and shoulder level or limitation of arm motion at shoulder level.  Similar to the right shoulder discussion, the panel consensus was that preponderant probative value should be assigned to the pre-separation C&P examination.  However, the significant change in ROM and strength compared to the NARSUM evidence, as well as the underlying pathology was considered in weighing the evidence.  With regard to the VASRD §4.71a threshold for rating for ROM impairment “at shoulder level,” and the panel majority adjudged that examinations in evidence demonstrated usable motion limited to this level.  The next higher 30% rating for the non-dominant arm requires motion limited to “25° from side,” however, examinations did not reflect this degree of limitation.  There was no malunion with marked deformity or frequent episodes of recurrent dislocation of the humerus to justify a higher rating under code 5202 and no higher ratings available under code 5203.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the left shoulder condition, coded 5201.  

Contended PEB Condition:  Chronic Low Back Pain.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended back condition was implicated in a 6-month limited duty period beginning on 31 March 2004 (expired by NARSUM timeframe), was mentioned in the NARSUM as interfering with duty, and was forwarded to the PEB as a separate condition (lumbago) on the NAVMED 6100/1.  The non-medical assessment did not specify any physical diagnosis, but generally stated the CI was working outside his military specialty due to high physical demands and the inability to perform fitness training.  The CI’s back condition had some concerning radicular signs/symptoms in March 2004, but an MRI showed no significant disc herniation or nerve involvement, although there were degenerative changes.  Non-surgical care, including chiropractic treatment, decreased the CI’s symptoms of episodic pain and lower extremity paresthesias, but without full resolution of the pain.  The pre-separation VA C&P examination showed no painful or limited back motion and noted he had not missed any work due to the low back condition in the past 12 months.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the right shoulder status post superior labrum anterior to posterior repair condition, the panel recommends a disability rating of 20%, coded 5201 IAW VASRD §4.71a.  In the matter of the left shoulder bicipital tendinitis condition, the panel majority recommends a disability rating of 20%, coded 5201 IAW VASRD §4.71a.  In the matter of the chronic low back pain condition and IAW VASRD §4.71, the panel recommends no change in the PEB adjudication.  The single voter for dissent recommends no change in the PEB adjudicated 10% rating for the left shoulder, with re-characterization to a combined 30% rating (agreed with 20% for the right shoulder), and did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Shoulder Status Post Superior Labrum Anterior to Posterior Repair	5201	20%	
Left Shoulder Bicipital Tendinitis	5201	20%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170216, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record