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AF | PDBR | CY2013 | PD-2013-01932
Original file (PD-2013-01932.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-01932
BRANCH OF SERVICE: MARINE CORPS          BOARD DATE: 20141119
SEPARATION DATE: 20051115


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty LCpl/E-3 (1391/Bulk Fuelman) medically separated for joint stiffness of the right shoulder. The right shoulder condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was placed on limited duty [LIMDU] and referred for a Medical Evaluation Board (MEB). The right shoulder condition, characterized as “unspecified orthopedic aftercare” was forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. No other conditions were submitted by the MEB. The Informal PEB adjudicated “joint stiffness-right shoulder” as unfitting, rated at 20%. The remaining conditions were all determined to be Category II. The CI made no appeals and was medically separated.


CI CONTENTION: “Continued pain and restrictions pertaining to lifting when using the right arm form the injury, which has affected employment. Hearing loss has also became an issue which again has affected employment.” [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 shoulder conditions is addressed below. The contended hearing loss condition was not documented by the MEB or PEB therefore is not within the Board’s scope of review. 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-connected condition continue to burden him. However, 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. This role and authority is granted by Congress to the Department of Veteran Affairs (DVA). The DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate service connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time.
RATING COMPARISON :

Service IPEB – Dated 20050914 VA - (8 Mos. Post-Separation) based on VARD Narrative
Condition Code Rating Condition Code Rating Exam
Joint Stiffness-Right Shoulder 5201 20% Right Shoulder Degenerative Arthritis 5201-5010 10% 20060627*
Paresthesia-Upper Extremity Category II No VA Entry
s/p Bankart Repair with Right Shoulder Instability Category II No VA Entry
Other x 0 (Not in Scope) Other x 3 20060627
Combined: 20% Combined: 10%
* Derived from VA Rating Decision (VA RD ) dated 20080628 (most proximate to date of separation ) which references VARD dated 20060627

ANALYSIS SUMMARY: The Service treatment record did not contain any primary documents of clinical encounters or VA Compensation & Pension (C&P) examinations. The historical medical information was obtained from the MEB and subsequent VARD summaries.

Right Shoulder Condition. The CI is a right hand dominant male who in February 2004 was subjected to a traumatic fall resulting with the dislocation of his right shoulder; he received a closed reduction of the injury and underwent post-reduction physical therapy.

Initially, the CI did well post-operatively, however, the CI complained of having right shoulder with instability and occasional numbness, with tingling in his right shoulder and hand. Throughout most of 2004, the service treatment records documents that the CI experienced multiple episodes of right shoulder dislocations all requiring reduction in the emergency department. An orthopedic examination of the right shoulder in November 2004 revealed tenderness, significant guarding with full range-of-motion (ROM) and multiple indicators of instability. Diagnostic radiographic imaging confirmed significant boney abnormalities and a labrum tear. In January 2005, the CI underwent an arthroscopic stabilization (Bankart repair) surgery. Post-operatively, there was “marginal” improvement in his ROM, but the CI continued to experience pain, numbness and tingling despite aggressive physical therapy, pain management and epidural [steroid] injections.

At the MEB narrative summary (NARSUM) (performed 6 months prior to separation), the CI reported a continuation of right shoulder/arm pain with numbness and reported three separate right shoulder dislocations since the initial surgical procedure. During the physical examination, the examiner observed global painful “passive” ROM, excessive guarding (keeps [shoulder and arm] close to his body), scapular winging (muscular dystrophy; weakness causes deformities such as pronounced shoulder blades) and noted that the CI reports sensory deficit for the right shoulder and three fingers of the right hand. A motor examination was not obtained due to initiating radicular pain “shooting down into the hand”. Nonetheless, posterior instability was present. The CI’s diagnosis was right shoulder instability with stiffness and paresthesia right upper extremity. The examiner prognosis was as following “[The CI] has severe loss of function [of right shoulder] due to stiffness”.

The commander’s statement stated that the CI’s post-surgical healing period were with duty limitations and noted the CI’s inability to perform his required MOS duties.

The CI’s VA C&P examinations were omitted from evidence therefore they were not available for the Board’s review and deliberation. However, a remote VA rating decision (VARD) dated 28 June 2008 did contain documentation of painful limited motion of the right shoulder, citing a VA examination performed on 27 June 2006 (7 months post-separation).

The goniometric ROM evaluations in evidence, which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

DOS 20051115
Right Shoulder ROM
(Degrees)		 MEB ~6 Mo. Pre-Sep
(20050425)
VA C&P ~8 Mo. Post-Sep
(20060627)
Flexion (180 Normal) 90 (passive) 150
Abduction (180) 85 (passive) 150
Comments painful motion painful motion
§4.71a Rating 10% 10%

The Board directs attention to its rating recommendation based on the above evidence. The Board first considered examination probative value noting “passive” ROM performed at the NARSUM and therefore, not in compliance with VASRD criteria. Members consensus was that both exams are relevant and should be considered with the higher probative value be assigned to the post-separation VA examination, which meets VASRD criteria for measuring ROM. Both the PEB and VA utilized various forms of code 5201 (arm; limitation of motion) and rated 20% and 10%, respectively. Painful motion was clearly present across the board to support a minimum 10% under VASRD §4.59. There was no clear rationale for the PEB’s 20% rating and the Board surmised it was based on the decreased passive ROM to shoulder level of 90 degrees.

The VA’s rationale was clearly based upon painful motion. The lowest compensable rating under 5201 is 20% when abduction is limited to “shoulder level”; the probative valued ROM in this case well exceeded 90 degrees. Board members were reluctant to concede a rating under 5201 due to its passive measurements. Having clear evidence of a humeral dislocation coupled with objective guarding, Board members considered code 5202 (humerus, impairment) and deliberated between its lowest impairment of 20% (PEB’s rating) or higher at 30% (dominant extremity). The determining criteria under 5202 for “recurrent dislocation at the [shoulder joint]” is infrequent episodes and guarding of movement only at shoulder level (20%) or frequent episodes and guarding of all arm movements (30%).

The Board agreed that the NARSUM’s comment of “multiple” shoulder dislocations requiring emergency treatment supported the criteria of “frequent episodes” under 5202. Additionally, the CI’s guarding of keeping the shoulder and arm “close to his body” coupled with problematic motor testing clearly indicated that the guarding existed well below that of shoulder level or 90 degrees. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends a disability rating of 30% for the right shoulder condition under code of 5202.

Other PEB Conditions. Paresthesia-upper extremity and post-operative Bankart repair with right shoulder instability were adjudicated by the PEB as Category II conditions. The Board unanimously agreed that both conditions were related to and included in the above discussion; therefore they do not warrant consideration as separately unfitting conditions. All related symptoms and functional impairments were subsumed under the ratings for the right shoulder as noted above, so as not to violate VASRD §4.14 (pyramiding).


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 joint stiffness in right shoulder condition, the Board unanimously recommends a disability rating of 30%, coded 5202 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION VASRD CODE RATING
Right Shoulder Condition 5202 30%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131024, 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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