RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXX BRANCH OF SERVICE: Marine corps

CASE NUMBER: PD0900238 SEPARATION DATE: 20060630

BOARD DATE: 20110623

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SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Sgt/E-5 (0351, Assaultman), medically separated from the Marine Corps. The medical basis for the separation was chronic right shoulder instability and pain status post multiple surgeries. He did not respond adequately to treatment and was unable to perform within his military occupational specialty or participate in a physical fitness test. He was placed on Limited Duty and underwent a Medical Evaluation Board (MEB). Other joint derangement, not elsewhere classified shoulder region was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW SECNAVINST 1850.4E. No other conditions appeared on the MEB submission. Other conditions included in the narrative summary (NARSUM) and Disability Evaluation System (DES) packet will be discussed below. The Informal PEB (IPEB) adjudicated the right shoulder condition as unfitting, rated 20%; with application of the SECNAVINST 1850.4E. The CI made no appeals and was medically separated with a 20% disability rating.

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CI CONTENTION: “The issue of PTSD and TBI should have been added to an addendum to my PEB. Shoulder is worse and requires and additional 3^rd surgery to correct or treat deteriorating condition.” He elaborates no specific contentions regarding rating or coding and mentions no additionally contended conditions.

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RATING COMPARISON:

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ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application, i.e., that there should be additional disability assigned for his other conditions and for the gravity of his condition and predictable consequences which merit consideration for a higher separation rating. While the Disability Evaluation System considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member's career, and then only to the degree of severity present at the time of final separation. However, the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to periodically re-evaluate veterans for the purpose of adjusting the disability rating should his degree of impairment vary over time.

Chronic Right Shoulder Instability and Pain S/P Multiple Surgeries. The NARSUM indicates that between 2001 and August 2004, the CI suffered multiple dislocations which were all self-reduced. He subsequently underwent a right shoulder arthroscopy with arthroscopic labral repair on 15 November 2004 and revision right shoulder arthroscopy with arthroscopic labral repair on 1 November 2005. The NARSUM was two months status post right shoulder revision surgery, and as expected that early post op, he did not have full range of motion (ROM). There were well healed incisions with limited ROM as noted in the chart below. The VA Compensation and Pension (C&P) Examination on 8 March 2006, four months pre separation, documented bilateral shoulder tenderness and guarding on movement without edema, effusion, weakness, redness, heat, abnormal movement, or subluxation. As noted in the table below the shoulder had full range of motion with pain starting midrange in all planes.

The PEB adjudicated the chronic right shoulder instability and pain status post multiple surgeries condition as unfitting with 20% assigned utilizing code 5299-5201 (arm, limitation of motion of). Code 5201 assigns a 20% rating for abduction or flexion limited to 90 degrees. No criteria are assigned for a 10% rating under this code. Although the ROM did not support the 20% rating, the PEB utilized the code analogously and assigned 20%, likely as the minimal compensable rating for the shoulder IAW §4.59 for painful motion. The VA Rating Decision on 26 July 2006 (one month post separation) assigned a 10% rating for internal derangement with arthroscopic surgery X2, right shoulder, utilizing code 5201-5019 (arm limitation of motion of - bursitis). The VA C&P Examination did not document limitation of motion, but did note painful motion. In accordance with §4.59, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. The minimal rating for the shoulder under code 5201 is 20%; however the VA granted only 10%. Under either examination the Board considered the appropriate rating to be 20%. Other coding options were discussed by the Board including 5202 (humerus, other impairment of) and 5203 (clavicle or scapula, impairment of). These codes could be considered for recurrent dislocations, which are noted in the clinical history prior to surgery, but neither code would allow for more than 20% unless he had frequent episodes with guarding of all arm movements in the dominant shoulder. This is not supported in the clinical records, and there were no recurrent dislocations after treatment. After careful consideration of all the evidence provided, the Board recommends no re-characterization of the PEB rating of 20% disability for the right shoulder condition, coded 5299-5201.

Other Contended Conditions. The CI’s application asserts that compensable ratings should be considered for posttraumatic stress disorder (PTSD) and traumatic brain Injury (TBI). No VA Rating Decisions are in evidence that service connect PTSD or TBI. Review of the service treatment records and the DES file reveal no complaints of PTSD or TBI related symptoms or conditions. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.

Remaining Conditions. Other conditions identified in the DES file were surgical scars right shoulder, right knee trouble and kidney stone. Although the NARSUM does note an unstable gait and the CI would receive service connection for several other joint conditions, he apparently functioned well with only the right shoulder condition referred to the PEB for adjudication. None of these conditions were clinically significant during the MEB/PEB period, none were the bases for limited duty, and none were implicated in the NMA. These conditions were all reviewed by the action officer and considered by the Board. It was determined that none could be argued as unfitting and subject to separation rating. Additionally, left shoulder strain, right elbow strain, right wrist strain, mechanical low back pain, tinnitus, migraine headaches and several other non-acute conditions were noted in the VA rating decision proximal to separation, but were not documented in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. The Board, therefore, has no reasonable basis for recommending any additional unfitting conditions for separation rating.

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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. In the matter of the right shoulder condition, the Board unanimously recommends a disability rating of 20% (coded 5299-5201) IAW VASRD §4.71a. In the matter of the right knee condition, kidney stone, right shoulder surgical scars, or any other conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.

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RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination as follows:

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The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20090128, w/atchs.

Exhibit B. Service Treatment Record.

Exhibit C. Department of Veterans' Affairs Treatment Record.

Deputy Director

Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW

BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATION

ICO XXXXX, FORMER USMC

Ref: (a) DoDI 6040.44

(b) PDBR ltr dtd 1 Jul 11

I have reviewed the subject case pursuant to reference (a) and, for the reasons set forth in reference (b), approve the recommendation of the Physical Disability Board of Review Mr. XXXXX’s records not be corrected to reflect a change in either his characterization of separation or in the disability rating previously assigned by the Department of the Navy’s Physical Evaluation Board.

Assistant General Counsel

(Manpower & Reserve Affairs)