RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

BRANCH OF SERVICE:  MARINE CORPS 
SEPARATION DATE:  20060315 

 
NAME:    
CASE NUMBER:  PD1200108 
BOARD DATE:  20121011  
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  SGT/E-5  (7212/Low  Altitude  Air  Defense  Gunner), 
medically separated for left shoulder condition and a low back condition.  He did not respond 
adequately to operative treatment for his left shoulder or conservative treatment for his low 
back and was unable to fulfill the physical demands within his Military Occupational Specialty 
(MOS),  meet  worldwide  deployment  standards  or  meet  physical  fitness  standards.    He  was 
placed  on  limited  duty  and  underwent  a  Medical  Evaluation  Board  (MEB).    Left  shoulder 
adhesive capsulitis and lumbar L4-L5 right sided herniated disc were forwarded to the Physical 
Evaluation  Board  (PEB)  IAW  SECNAVINST  1850.4E.    The  PEB  adjudicated  the  left  shoulder 
condition  and  degenerative  disk  disease  (DDD)  L4-L5  as  unfitting,  rated  10%  and  0% 
respectively.  The lumbar right sided L4-L5 herniated disc (HNP) condition was determined to be 
a related Category II diagnosis which contributes to the unfit condition.  Additionally, the PEB 
determined the condition of obesity was a Category IV condition which does not constitute a 
physical disability.  The CI made no appeals, and was medically separated with a 10% disability 
rating.   
 
 
CI CONTENTION:  “The military separation board rated the member at 10%.  The 10% rating was 
from Degenerative disc disease and left shoulder dislocations with adhesive capsulitis.  The VA 
rated the member for the same conditions as the following.  Degenerative disc disease 20% and 
left shoulder dislocation with adhesive capsulitis 10%.  In addition to separation board findings 
the member has been assigned a 50 % for Obstructive Sleep Apnea service.  The member was 
also  rated  from  the  VA  for  the  following  items  and  have  been  service  connected  and 
documented at the time of discharge: 1) tinnitus 10%, 2) folliculitis 10%, 3) left hammertoes, 
great  toe  hallux  valgus,  fifth  toe  fracture  and  a  calcaneal  spur  4)  right  hammertoes,  hallux 
valgus, of the great toe and a calcalneal (sic), 0% 5) vestibular symptoms secondary to central 
vestibular pathology 0%, 6) left shoulder surgery scars 0%, 7) obstructive sleep apnea 50%.  This 
gives  the  member  a  total  combined  VA  rating  of  70%.    All  of  the  listed  ratings  are  service 
connected and were all reported during the time of service.  The member request (sic) for the 
board to grant a medical retirement.”   
 
 
SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in the 
Department of Defense Instruction (DoDI) 6040.44, Enclosure 3, paragraph 5.e. (2) is limited to 
those conditions which were determined by the PEB to be specifically unfitting for continued 
military  service;  or,  when  requested  by  the  CI,  those  condition(s)  “identified  but  not 
determined to be unfitting by the PEB.”  The ratings for unfitting conditions will be reviewed in 
all cases.  The unfitting left shoulder and low back conditions requested for consideration meet 
the  criteria  prescribed  in  DoDI  6040.44  for  Board  purview,  and  are  accordingly  addressed 
below.  The remaining contended conditions rated by the VA at separation and listed on the 
DD Form 294 application are not within the Board’s purview.  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 20051221 
Condition 

Code 

Lt Shoulder Adhesive 
Capsulitis 
L4-5 DDD 
L4-5 HNP 

Rating 
10% 
0% 

5299-5003 
5299-5237 

Category II 

↓No Additional MEB/PEB Entries↓ 

VA (2 Mos. Pre -Separation) – All Effective Date 20060316 

Condition 

Lt Shoulder Dislocations w/ 
Adhesive Capsulitis 
L-Spine DDD 
OSA 
Tinnitus 
Folliculitis 

Code 

5299-5203 

Rating 
10% 

5243 
6847 
6260 

20% 
50% 
10% 
10% 

Exam 

20060116 

20060116 
20091208 
20060116 
20060116 
20060116 

7899-7806 
0% X 4 / Not Service-Connected x 1 

Combined:  70% 

Combined:  10% 

 
 
ANALYSIS  SUMMARY:    The  Board acknowledges  the  CI's  contention  suggesting that  disability 
ratings should have been higher for his unfitting conditions and further acknowledges the CI's 
contention  suggesting  that  ratings  should  have  been  conferred  for  other  conditions 
documented at the time of separation and for conditions not diagnosed while in the Marines 
(but later determined to be service-connected).  While the Disability Evaluation System (DES) 
considers all of the member's medical conditions, compensation can only be offered for those 
medical conditions that cut short a member’s career, and then only to the degree of severity 
present  at  the  time  of  final  disposition.    The  Department  of  Veterans  Affairs,  however,  is 
empowered  to  compensate  all  service-connected  conditions  and  to  periodically  re-evaluate 
said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of 
impairment vary over time.   
 
Left Shoulder Condition.  The right hand dominant CI dislocated his left shoulder for the first 
time prior to joining the Marines.  Since that time he had numerous dislocations, for one of 
which he was medevac’d back from Iraq.  After conservative treatment he elected definitive 
operative care and underwent an arthroscopic Bankart repair, which was performed in January 
2005.    Six  months  post-operatively  he  continued  to  have  significant  limitation  of  range-of-
motion  (ROM)  despite  physical  therapy  and  underwent  another  operative  procedure, 
manipulation  under  anesthesia,  with  marked  improvement.    However,  he  continued  to  have 
some persistent pain in the left shoulder which limited his ability to get his arm over his head, 
perform pull-ups and had increased pain with any lifting.  There were three goniometric ROM 
evaluations  in  evidence,  with  documentation  of  additional  ratable  criteria,  which  the  Board 
weighed in arriving at its rating recommendation as summarized in the chart below.   
 

MEB ~4.5 Mo. Pre-Sep 

Ortho ~3 Mo. Pre-Sep 

VA C&P ~2 Mo. Post-Sep 

Left Shoulder ROM 
Flexion (0-180⁰) 

Abduction (0-180⁰) 

Comments 

§4.71a Rating* 
*Conceding §4.59 (painful motion) 

Silent on painful motion 

135⁰ 
120⁰ 

10% 

135⁰ 
120⁰ 

10% 

Painful motion 

160⁰  
120⁰ 

10% 

Painful motion 

 
The MEB physical exam demonstrated well healed anterior and posterior surgical scars, normal 
strength  of  the  rotator  cuff  muscles,  and  normal  neurovascular  findings.    The  examiner 
documented “Although he has not had any recurrent dislocations, he has been unable to return 
to  his  preinjury  level  of  function.”    At  the  VA  Compensation  and  Pension  (C&P)  exam, 
performed  prior  to  separation,  the  CI  reported  constant  daily  pain,  worsened  with  any  daily 
activity, marked limited ROM and weakness, however, he had no further recurrent dislocations.  
He took no medications for this condition and had missed work three times weekly.  The C&P 
exam  demonstrated  no  evidence  of  heat,  redness,  swelling,  effusion,  drainage,  abnormal 
movement, or instability.  There was tenderness to palpation of the anterior left shoulder and 
his  ROM  was  limited  by  pain,  fatigue,  weakness,  lack  of  endurance,  and  incoordination 

   2                                                         PD1200108 
 

following  repetitive  use,  however  without  Deluca  criteria  observations;  the  examiner  stated 
that  “without  resorting  to  mere  speculation,  the  additional  limitation  in  degrees  cannot  be 
determined.” 
 
The  Board  directs  its  attention  to  its  rating  recommendations  based  on  the  evidence  just 
described.  The PEB’s chosen code 5003 (arthritis, degenerative) specifies that, in the presence 
of degenerative arthritis established by X-ray findings, when “the limitation of motion of the 
specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a 
rating of 10 pct is for application for each such major joint or group of minor joints affected by 
limitation  of  motion,  to  be  combined,  not  added  under  diagnostic  code  5003.    Limitation  of 
motion  must  be  objectively  confirmed  by  findings  such  as  swelling,  muscle  spasm,  or 
satisfactory evidence of painful motion.”  There was noncompensable ROM impairment of the 
left shoulder, and the Board agreed that there is adequate documentation of painful motion of 
the joint in the prior to separation data to merit application of a minimal compensable rating 
under  this  code.    The  Board  considered  the  VA  choice  of  coding  5203  (Clavicle  or  scapula, 
impairment of), and also code 5201 (Arm, limitation of motion of) and agreed the evidence did 
not reflect criteria for a higher rating under either code.  There was no clinical and/or radiologic 
evidence in the examinations completed proximate to separation that suggested ankylosis, loss 
of the humeral head, nonunion, malunion, fibrous union, deformity, nonunion or dislocation of 
the scapula, or recurrent dislocations of the humerus that would have justified any code with 
higher rating potential.  After due deliberation, considering all of the evidence and mindful of 
VASRD  §4.3  (reasonable  doubt),  the  Board  concluded  that  there  was  insufficient  cause  to 
recommend a change in the PEB adjudication for the left shoulder condition.   
 
Low Back Condition.  The CI first sought treatment for atraumatic back and hip pain in 2003.  He 
underwent prolonged physical  therapy  and  chiropractic  care  without  relief  of  his  pain  which 
was activity related.  In June 2005 he was seen by sports medicine and underwent a magnetic 
resonance  imaging  study  (MRI)  which  revealed  DDD  at  the  L4-L5  level,  a  broad-based  disk 
bulge, which was worse on the right side with some effacement of the foramina at the L4 L5 
level.  The examiner diagnosed HNP and DDD of L4-L5, and lumbago with recommendations for 
a  LIMDU  which  prohibited  high  impact  activity  and  allowed  for  slow  increase  of  low  impact 
activity.  He was encouraged to follow-up if he desired to pursue further treatment.  His LIMDU 
limitations included no running, road marches or lifting greater than 10 pounds.  There were 
two  goniometric  ROM  evaluations  in  evidence,  with  documentation  of  additional  ratable 
criteria, which the Board weighed in arriving at its rating recommendation as summarized in the 
chart below.   
 

STR* ~9 Mo. Pre-Sep 

VA C&P ~2 Mo. Pre-Sep 

Painful motion 
20% (PEB 0%) 

Painful motion 

§4.71a Rating 
* Sports Medicine Clinic 

 

 

 
 
The MEB physical exam cited the abnormal MRI findings and documented that the CI’s finger 
tips reached to the junction of the middle and distal third of his tibia with some discomfort.  
The action officer opines this indicates limited flexion but could not speculate to what degree.  
The exam also demonstrated that extension did not cause discomfort, and there were normal 
neuromuscular findings of the lower extremities.  The examiner diagnosed DDD and right side 

   3                                                         PD1200108 
 

Thoracolumbar ROM 
Flexion (90⁰ Normal) 

Ext (0-30⁰) 

R Lat Flex (0-30⁰) 
L Lat Flex (0-30⁰) 
R Rotation (0-30⁰) 
L Rotation (0-30⁰) 
Combined (240⁰) 

Comment 

60⁰ 
15⁰ 

30⁰ (full) 
30⁰ (full) 
30⁰ (full) 
30⁰ (full) 
195⁰ 

40⁰ 
20⁰ 
20⁰ 
25⁰ 
25⁰ 
25⁰ 
155⁰ 

20% 

HNP of L4-L5 and opined that the CI’s constellation of symptoms of right-sided hip and leg pain 
correlated with the level and location of the disk on the MRI findings.  At the C&P exam the CI 
reported an injury to his back in boot camp.  He reported intermittent flare-ups of the back 
condition at least twice daily, each time lasting 3 hours and that he was able to function with 
nonsteroidal  medications.    The  pain  usually  radiated  down  the  right  lower  extremity  with 
intermittent numbness and tingling, was sharp and he graded it in severity 3 to 8 of 10 on a 
pain scale, exacerbated with physical activity and prolonged sitting.  He denied incapacitation 
requiring prescribed bed rest by a physician but stated he missed time from work 3 days per 
week  because  of  his  condition.    The  C&P  exam  documented  normal  spinal  contour,  gait,  no 
muscle spasm or tenderness to palpation and normal neuromuscular findings.  The ROM of the 
thoracolumbar  spine  was  limited  by  pain,  fatigue,  weakness,  lack  of  endurance,  and 
incoordination  following  repetitive  use,  however  without  Deluca  criteria  observations;  the 
examiner  stated  that  “without  resorting  to  mere  speculation,  the  additional  limitation  in 
degrees  cannot  be  determined.”  Additionally,  there  was  no  evidence  of  intervertebral  disc 
syndrome with chronic and permanent nerve root involvement. 
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB’s  0%  rating,  likely  derived  from  the  SECNAVINST  1850.4E  policy,  is  not  compliant  with 
VASRD  §4.71a  criteria.    Limited  flexion  is  documented  in  the  MEB  exam  and  the  ROM 
measurements by both the STR and VA are consistent with a 20% rating IAW §4.71a schedule of 
ratings–musculoskeletal system  under the  general  rating formula  for  diseases  and  injuries  of 
the spine.  The Board considered the VA’s coding choice 5243 (Intervertebral disc syndrome) 
and code 5242 (Degenerative arthritis of the spine) and agreed, while both codes were more 
clinically  specific  to  the  CI’s  clinical  pathology,  neither  code  allowed  for  higher  or  additional 
rating as there was no evidence of documentation of incapacitating episodes.  There was also 
no  evidence  of  ratable  peripheral  nerve  impairment  which  would  provide  for  additional  or 
higher rating.  The Board deliberated briefly with regards to the lack of STR’s for his back after 
his visit to the sports medicine examiner in 2005.  However, the Board majority agreed likely 
the limited duty restrictions imposed at that visit, his prior multiple visits with physical therapy 
and  chiropractic  care  and  self  medication  likely  allowed  him  to  seek  less  care  for  his  back 
condition.  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  low  back 
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.    As  noted  above,  PEB 
reliance  on  SECNAVINST  1850.4E  for  rating  the  left  shoulder  and  low  back  conditions  was 
operant in this case and the conditions were adjudicated independently of that instruction by 
the  Board.    In  the  matter  of  the  left  shoulder  condition  and  IAW  VASRD  §4.71a,  the  Board 
unanimously recommends no change in the PEB adjudication.  In the matter of the low back 
condition, the Board by a vote of 2:1 recommends a disability rating of 20%, coded 5242 IAW 

VASRD §4.71a.  The single voter for dissent (who recommended no recharacterization) did not 

elect to submit a minority opinion.  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  and  that  the  discharge  with  severance  pay  be  recharacterized  to  reflect  permanent 
disability retirement, effective as of the date of his prior medical separation:   
 
 

   4                                                         PD1200108 
 

VASRD CODE 
5299-5003 

5242 

COMBINED 

RATING 

10% 
20% 
30% 

UNFITTING CONDITION 

Lt Shoulder Adhesive Capsulitis 
DDD L4-L5 

 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120127, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 

  

 

   5                                                         PD1200108 
 

      
 

              COMMANDER, NAVY PERSONNEL COMMAND 
                                        

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS 
 
 
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS           
 
Ref:   (a) DoDI 6040.44 
          (b) PDBR ltr dtd 12 Oct 12 ICO   
          (c) PDBR ltr dtd 17 Oct 12 ICO   
          (d) PDBR ltr dtd 22 Oct 12 ICO   
                               
1.  Pursuant to reference (a) I approve the recommendations of the Physical Disability Board of Review 
set forth in references (b) through (d). 
 
2.  The official records of the following individuals are to be corrected to reflect the stated disposition: 
 
 
Permanent Disability Retired List effective 18 March 2005. 

a.  former USN:  Disability retirement with a final disability rating of 30% with assignment to the 

 
b. former USMC:   Disability retirement with a final disability rating of 40% with assignment to 

the Permanent Disability Retired List effective 28 November 2008. 

 
c.   former USMC:  Disability retirement with a final disability rating of 30% and assignment to 

 

the Permanent Disability Retired List effective 15 March 2006. 
 
3.  Please ensure all necessary actions are taken, included the recoupment of disability severance pay if 
warranted, to implement these decisions and that subject members are notified once those actions are 
completed. 
 
 

   6                                                         PD1200108