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AF | PDBR | CY2013 | PD-2013-01526
Original file (PD-2013-01526.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01526
BRANCH OF SERVICE: NAVY  BOARD DATE: 20141015
SEPARATION DATE: 20040309


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO3/E-4 (CT3/Cryptologic Technician) medically separated for left shoulder instability. The condition could not be adequately rehabilitated to meet the physical requirements of his Rating. He was placed on light duty and referred for a Medical Evaluation Board (MEB). The left shoulder pain condition, characterized as “recurrent left shoulder instability status post (s/p) arthroscopic stabilization” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The Informal PEB adjudicated the “recurrent left shoulder instability” as unfitting, and rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The s/p arthroscopic stabilization condition was adjudicated as a Cat II condition. The CI made no appeals and was medically separated.


CI CONTENTION: “Severity of conditions are getting worse, and much more debilitating. I had a surgery in my left shoulder, I can not [sic] use that arm much now. I have chronic flank pain, that is getting to the point I can’t walk very good, need a cane I think it’s a hernia, the VA don’t know what it is!?? So now my life as I knew it is over, I can’t keep up at work, and I cannot keep a girlfriend. I need to be treated for depression and social anxiety.”


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 unfitting of recurrent left shoulder instability and s/p arthroscopic stabilization conditions is addressed below; 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 20040421
 VA – CI was “no show” for C&P Exams
Condition
 Code Rating Condition Code Rating Exam
Recurrent Left Shoulder Instability 5299-5003 10% Status Post Arthroscopic Bankart Stabilization, Left
Shoulder, Minor		 5203 NSC STR
Status Post Arthroscopic Stabilization Procedure CAT II
Other x 0 (Not in Scope)
 Other x 3
Combined: 10%
 Combined: NSC%
Derived from VA Rating Decision (VA RD ) dated 20090902 .

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.

Recurrent Left Shoulder Instability Condition. This right hand dominant CI suffered injury to his left shoulder in a fall in 2000. Initial X-rays were negative. In 2002, he began noticing “popping” of the shoulder with overhead motion. A magnetic resonance imaging of the left shoulder performed on 29 January 2002 suggested a tear of the forward lower portion of the cartilage “cuff” supporting the shoulder joint (labium). Arthroscopic surgical repair was performed on 6 May 2003. At surgery, tears of the forward and back of the labrum were encountered and repaired. Post-operatively, the CI developed painful range-of-motion (ROM) and signs of instability without dislocation of the shoulder. At the physical therapy evaluation performed on 25 September 2003, 4 months post-op, ROM of the shoulder was forward flexion 170 degrees and abduction of 175 degrees (normal for both: 180 degrees) with painful motion. Motor strength was slightly reduced in the left arm from pain and signs of forward instability, but not with dislocation, were noted.

At the MEB narrative summary evaluation performed on 10 October 2003, 5 months prior to separation, the CI reported shoulder pain especially with overhead activities and intermittent “popping” and “snapping’” of the shoulder. He reported no incidences of actual dislocation of the shoulder. The MEB physical exam noted surgical scars to be well healed. Motor strength and sensation of the shoulder, arm and hand were normal with no signs of muscle atrophy. ROM of the shoulder was normal, but with pain. Moderately severe instability of the shoulder was present on forward motion without dislocation. The examiner noted the CI to decline a second operative procedure to restore shoulder stability. No VA Compensation and Pension (C&P) examinations were performed due to CI cancellations or non-attendance; no subsequent C&P examinations were in record for Board review.

The Board directs attention to its rating recommendation based on the above evidence. The Board noted that the CI was right hand dominant. The PEB rated the left shoulder condition, 10%, coded 5003 (degenerative joint disease) citing recurrent instability. The VA adjured the left shoulder condition to be not service-connected in the absence of examinations. The Board unanimously agreed that the preponderance of evidence in record supported a rating of 10% for painful ROM IAW §4.40 and §4.59. The Board unanimously agreed that the record in evidence supported a rating of 20%, using code 5202 (humerus, other impairment) for episodes of subluxation and instability without dislocation. A higher rating of 30% under this code requires documented dislocations, not supported by the record in evidence. The Board unanimously agreed that the preponderance of evidence in record supported no compensable rating under ROM codes, IAW § 4.71a; or nerve or muscle injury codes, IAW §4.123 or §4.73, or painful surgical scars codes IAW §4.118. The Board was unable to find any other appropriate codes for consideration. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two ratings) the Board recommends a disability rating of 20% for the left shoulder condition.

Status Post Arthroscopic Stabilization Procedure Condition. The Board unanimously agreed this condition was subsumed in discussion of left shoulder condition above and not to be unfitting per se and subject to additional rating.


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 5299-5202, IAW VASRD §4.71a. In the matter of the s/p arthroscopic stabilization procedure condition, the Board unanimously agrees that it cannot be recommended for additional disability rating. 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 Left Shoulder Instability 5299-5202 20%
COMBINED 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131019, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




                 
XXXXXXXXXXXXXXX
President
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 6 Mar 15 ICO XXXXXXXXXXXXXXXXX
         (c) PDBR ltr dtd 13 Mar 15 ICO XXXXXXXXXXXXXXXXX
         (d) PDBR ltr dtd 17 Feb 15 ICO XXXXXXXXXXXXXXXXX
         (e) PDBR ltr dtd 24 Feb ICO XXXXXXXXXXXXXXXXX

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

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

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

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

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

d. XXXXXXXXXXXXXXX, former USMC : 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)

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