RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	CASE:  PD-2014-00920
BRANCH OF SERVICE:  NAVY	BOARD DATE:  20141125
Separation Date:  20050923

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO3/E-4 (CS3/Culinary Management Specialist) medically separated for recurrent right shoulder instability.  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 [LIMDU] status twice and referred for a Medical Evaluation Board (MEB).  The right shoulder instability condition, characterized as “Other Joint Derangement, Not Elsewhere Classified and Shoulder Region” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  The Informal PEB adjudicated “recurrent right shoulder instability” as unfitting, rated at 20%, but deducted 10% citing the condition existed prior to service (EPTS).  The CI made no appeals and was medically.

CI CONTENTION: The CI writes: “Shoulder Continues To Pop Out And VA Doctors Advised Me To Have Replacement Surgery But Said I am To Young”.

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting recurrent right shoulder instability condition is addressed below and no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Naval Records.

The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans Affairs (DVA).  The Board utilizes DVA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-months interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20050621 | VA - (5 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Recurrent Rt. Shoulder Instability | 5099-5003 | 10% | Status Post Right Shoulder Surgery | 5201 | 20% | 20060223
Other x 0 | Other x 1 | 20060223
Combined:  10% | Combined:  20%
Derived from VA Rating Decision (VARD) dated 20060711 (most proximate to date of separation)
VARD dated 20130813 rated 20% from 20050923; 100% from 20100419; 20% from 20100701; 100% from 20120820; 20% from 20121102

ANALYSIS SUMMARY:  The requested right shoulder instability condition is eligible for Board review to the extent that, although the Board does not have the authority to recommend a reversal of the EPTS determination.  The Board, by precedent and prior legal/administrative opinions may review the fairness of the PEB’s judgment that there was no permanent service aggravation.  Should the majority of members agree that there was permanent aggravation; a disability rating IAW the VA Schedule for Rating Disabilities (VASRD), with or without a deduction IAW VASRD §4.22 will be recommended.

Recurrent Right Shoulder Instability Condition.  The CI’s entrance history and physical examination documented a normal physical exam of the upper extremities which indicates that the CI was qualified for service.  The CI initially sought medical care on 27 January 2003, stating that a heavy box fell onto his right shoulder causing pain and that he experience difficulties with movement.  The CI stated that prior to entering the Naval, he did have a history of right shoulder locking and clicking, but denied prior injuries, dislocation or surgeries.  Physical examination findings were noted as decreased strength in the right arm due to pain.  At that time the examiner diagnosed sprain, with a strain, of the right shoulder/upper arm.  The CI was evaluated in May 2003 for right shoulder dislocation, stating to the examiner that dislocation occurred 4 times a day.  The examiner’s findings were a loss of contour in the humeral head and difficulties with right arm movement at the shoulder.  The CI’s diagnosis was right shoulder dislocation and pain was treated with non-steroidal anti-inflammatory drug (NSAID) and recommended assigning the CI 8 months LIMDU status (from 8 July 2003 until 8 March 2004) for right shoulder instability.

The initial MEB narrative summary (NARSUM) examination (approximately 19 months prior to separation), documented that the CI had anterior/inferior subluxation without any frank dislocations and was performing at-home physical training.  The MEB examiner noted that a radiological exam from July 2003 showed a Hill-Sach’s lesion, some subluxation of the biceps tendon as well as a questionable superior labrum anterior and posterior tear as well as a tear of the anterior/inferior labrum.  The NARSUM examiner also specifically noted that the CI’s “family history, past medical/surgical history, social history and service treatment records review reveals the patient's condition did not exist prior to military service.”  The examiner at that time recommended an additional 8 months of LIMDU and anticipation that after the completion of surgery, rehabilitation and LIMDU status, the CI would be fit to return to full duty status.  The MEB NARSUM physical exam findings are summarized in the chart below.  The CI underwent capsule labral reconstruction surgery on 24 March 2004.  The physical therapist post-operative evaluation assisted the CI with developing right shoulder strength from April to May 2004.  The orthopedist documented that the CI experience sleep disturbance due to right shoulder pain during the night and pain with overhead activities; however, his right shoulder flexion was full.  The examiner returned the CI to full duty. The MEB NARSUM physical examination findings are summarized in the chart below.  

In April 2005 the physical therapist noted a re-injury of right shoulder with instability secondary to lifting heavy bags.  The second MEB NARSUM examination (approximately 5 months prior to separation), documented that the right shoulder instability condition did exist prior to entering military service based on reviews of past medical history and reviewing of the CI’s service treatment record, stating that the CI experienced multiple right shoulder dislocations prior to enlistment.  The MEB NARSUM physical examination findings are summarized in the chart below.  The examiner diagnosed recurrent right shoulder instability and referred the CI to the PEB.  In July 2005, a primary care provider documented another right shoulder subluxation with tenderness to palpation and decreased ROM due to pain.  He was given an injectable of NSAID, the subluxation was corrected and the shoulder was immobilized.

The VA Compensation and Pension (C&P) examination (approximately 5 months post separation), documented right shoulder weakness; constant swelling and stiffness; squeezing, aching, burning, sharp pain with or without activity which was relieved by rest and / or NSAIDS.  There was shoulder dislocation with minimal movement.  The VA C&P physical examination findings are summarized in the following chart.

There were three ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized below:

Right Shoulder ROM (Degrees) | NASRSUM 18.5 Mos. Pre-Sep | NARSUM 5 Mos. Pre-Sep | VA C&P 5 Mos. Post-Sep
Flexion (180 Normal) | FROM | 150 | 40
Abduction (180) | | 145 | 35

Comments:
Left Hand Dominant

15 days pre op; Normal strength; Pos. instability; No tenderness to palpation

No tenderness to palpation; Pos. anterior apprehension

Pos. painful motion, guarding & instability; Pos. Deluca criteria

§4.71a Rating | 10% | 10% | 20%

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the recurrent right shoulder instability condition as code 5099 analogous to 5003, (degenerative arthritis), rated at 20% with application of EPST reduction criteria of 10% leaving the remaining 10% as a final rating at separation.  The VA coded the status post right shoulder surgery with strain and scar condition as code 5201 (limitation of arm motion) and rated at 20% consistent with “midway between side and shoulder level.”  The PEB assessed a 10% EPTS deduction from its original 20% rating.  As with its consideration of fitness adjudications, the Board’s threshold for countering EPTS determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations and requires a preponderance of evidence.  The file contains conflicting evidence with some documents supporting an EPTS determination while others specifically document the right shoulder condition should not be consider EPTS.  Board members agree that there was not a preponderance of evidence necessary to overturn the PEB’s EPTS determination.  The Board considered the PEB’s 10% EPTS deduction for fairness and members agree that because the CI’s entrance physical examination was normal and there was no annotation of a right shoulder condition, the Board recommends an EPTS deduction of 0%.  The evidence clearly supports that the CI had recurrent right shoulder instability at the time of separation.  The MEB NARSUM exam demonstrated ROM abduction of 145 degrees with anterior and inferior apprehension.  The VA C&P exam was a more detailed examination and demonstrated worsening of the shoulder ROM with evidence of instability.  The Board agreed that the CI had frequent exacerbations of shoulder dislocation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the recurrent right shoulder instability condition coded 5202 IAW VASRD §4.71a.

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 recurrent right shoulder instability condition, the Board unanimously recommends a disability rating of 20%, coded 5202 as 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:

UNFITTING CONDITION | VASRD CODE | RATING
Recurrent Right Shoulder Instability | 5202 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140131, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 24 Apr 15 ICO XXXXXXXXXXXXXXX    
        (c) PDBR ltr dtd 24 Apr 15 ICO XXXXXXXXXXXXXXX
        (d) PDBR ltr dtd 8 Jan 15 ICO XXXXXXXXXXXXXXX
        (e) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
        (f) PDBR ltr dtd 21 Apr 15 ICO XXXXXXXXXXXXXXX
        (g) PDBR ltr dtd 7 Apr 15 ICO XXXXXXXXXXXXXXX

1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (g).

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

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

     b. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     d. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating effective date of discharge.

     e. XXXXXXXXXXXXXXX, former USN: Entitlement to disability severance pay with a disability rating of 20 percent (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 30 percent disability rating 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 completed.

	XXXXXXXXXXXXXXX
	Assistant General Counsel
                                           (Manpower & Reserve Affairs)

PD-2014-00920