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AF | PDBR | CY2012 | PD 2012 01539
Original file (PD 2012 01539.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX     CASE: PD-2012-01539
BRANCH OF SERVICE: MARINE CORPS  BOARD DATE: 20141003
SEPARATION DATE: 20031231


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCpl/E-3 (3043/ Supply Administration and Operations Clerk) medically separated for a left shoulder condition. The left shoulder condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty and was referred for a Medical Evaluation Board (MEB). The left shoulder condition, characterized as “recurrent instability, left shoulder,” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The Informal PEB adjudicated “recurrent instability, left shoulder” as unfitting, rated 10%. The CI made no appeals and was medically separated.


CI CONTENTION : invalid font number 31502 “ invalid font number 31502 Since my left shoulder injury I am very limited to pick up things and my 1 invalid font number 31502 - invalid font number 31502 year invalid font number 31502 - invalid font number 31502 old daughter. My right shoulder I starting to hurt in the shoulder area, because I use my right shoulder for very thing I pick up. invalid font number 31502 invalid font number 31502 My ankle is starting hurt more now then before.” [sic]


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 left shoulder condition is addressed below; 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.


 RATING COMPARISON :

Service IPEB – Dated 20031106
 VA - (3.1 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Recurrent Instability, Left Shoulder 5299-5003 10% Status Post Left shoulder Surgery Secondary to Instability 5201 20% 20030930
Left shoulder Scars, Post Surgery 7802 0% 20030930
Other x 0 (Not in Scope)
 Other x 4 20030930
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VA RD ) dated 200 40706 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.


Left Shoulder Condition. The CI was right hand dominant. The record and narrative summary noted the CI underwent left shoulder surgery (Bankhart repair and rotator interval closure) in May 2002 due to shoulder instability. He had recurrence of instability following surgery which persisted after additional conservative therapy including a shoulder injection. At the MEB exam performed 6 months prior to separation, the CI reported recurrent left shoulder instability, impingement and subluxation (abnormal joint motion short of full dislocation). Treatment records supported findings of instability after surgical repair and an emergency department visit in May 2003 (8 months prior to separation) documented a left shoulder dislocation. The MEB physical exam performed 6 months prior to separation documented shoulder range-of-motion (ROM) of 160 degrees of flexion (180 degrees normal) and 160 degrees abduction (180 degrees normal) which was equal on the left and right shoulders. The left shoulder had positive tests of instability (Neer and Hawkins) with pain with apprehension (movement towards limits) and normal strength. The scars were well healed and imaging documented a subacromial osteophyte (bony abnormality/“pur” at the acromioclavicular [AC] joint).

At the VA Compensation and Pension exam performed 3 months prior to separation, the CI reported multiple left shoulder dislocations and a shoulder (AC joint) separation not resolved following surgery. He had continuing shoulder dislocations with lifting, pulling or pushing activities approximately once a month with several days of pain. During flare-ups he could not use his shoulder for activities of daily living. Exam demonstrated tenderness, mild weakness and flexion limited to 160 degrees (of 180 degrees normal and as noted on the opposite shoulder), with pain being the major factor on repetitive testing. Abduction was 140 degrees with pain onset at 100 degrees. The examiner indicated decreased ROM, tenderness, weakness and “he is limited in frequent reaching, pushing, pulling, and lifting overhead.”

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the shoulder at 10% analogous to arthritis (5299-5003) and the VA rated the shoulder at 20% under code 5201 (arm limitation of motion at shoulder level). Any disability attributable to the scar was considered under the shoulder coding. The Board considered that the combination of positive impingement tests, instability symptoms (subluxation or dislocations) weakness offered reasonable doubt for coding under code 5203 (clavicle or scapula impairment) at the 20% level for loose motion. Given the VA exam being closer to separation, and the examiner’s opinion that the shoulder disability impaired overhead working, the alternative of rating 20% using code 5201 was also supportable with application of repetitive motion (DeLuca), §4.3 (reasonable doubt), §4.40 (functional loss) and §4.45 (the joints). Coding including shoulder/clavicle impairment and ROM limitation would be 5203-5201 at 20%. There was no evidence of ROM limitation approaching “midway between side and shoulder level” (45 degrees) to warrant any higher rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3, the Board recommends a disability rating of 20% for the left shoulder condition.


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 left shoulder condition, the Board unanimously recommends a disability rating of 20%, coded 5203-5201 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 Instability, Left Shoulder 5203-5201 20%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120821, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




XXXXXXXXXXXXXX
President
Physical Disability Board of Review

MEMORANDUM FOR DIRECTOR, SECRETARY OF THE NAVY COUNCIL OF REVIEW
BOARDS

Subj: PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS

Ref: (a) DoDI 6040.44
(b) CORB ltr dtd 12 Feb 15

In accordance with reference (a), I have reviewed the cases forwarded by reference (b), and, for the reasons provided in their forwarding memorandums, 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:
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USMC
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USN
- XXXXXXXXXXXXXX, former USMC


                                                      XXXXXXXXXXXXXX
                                            Assistant General Counsel
                           (Manpower & Reserve Affairs)

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