Upgrade.Vet

AF | PDBR | CY2014 | PD 2014 00920

Original file (PD 2014 00920.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXX CASE: PD - 20 1 4 - 00920

BRANCH OF SERVICE: NAVY BOARD DATE: 2014 1125

Separation Date: 20050923

SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PO3/E-4 (CS3/Culinary Management Specialist) medically separated for recurrent right shoulder instability. The condition could not be adequately rehabilitated to meet the physical requirements of his Rating or satisfy physical fitness standards. He was placed on limited duty [LIMDU] status twice and referred for a Medical Evaluation Board (MEB). The right shoulder instability condition, characterized as “Other Joint Derangement, Not Elsewhere Classified and Shoulder Region” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E. The Informal PEB adjudicated “recurrent right shoulder instability” as unfitting, rated at 20%, but deducted 10% citing the condition existed prior to service (EPTS). The CI made no appeals and was medically.

CI CONTENTION : The CI writes: “Shoulder Continues To Pop Out And VA Doctors Advised Me To Have Replacement Surgery But Said I am To Young”.

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 recurrent right shoulder instability condition is addressed below and 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.

The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, that the Disability Evaluation System (DES) 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 Veterans Affairs (DVA). The Board utilizes DVA evidence proximal to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-months interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

RATING COMPARISON :

Service IPEB – Dated 20050621	VA - (5 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Recurrent Rt. Shoulder Instability	5099-5003	10%	Status Post Right Shoulder Surgery	5201	20%	20060223
Other x 0	Other x 1	20060223
Combined: 10%	Combined: 20%

Derived from VA Rating Decision (VARD) dated 20060711 (most proximate to date of separation)

VARD dated 20130813 rated 20% from 20050923; 100% from 20100419; 20% from 20100701; 100% from 20120820; 20% from 20121102

ANALYSIS SUMMARY : The requested right shoulder instability condition is eligible for Board review to the extent that, although the Board does not have the authority to recommend a reversal of the EPTS determination. The Board, by precedent and prior legal/administrative opinions may review the fairness of the PEB’s judgment that there was no permanent service aggravation. Should the majority of members agree that there was permanent aggravation; a disability rating IAW the VA Schedule for Rating Disabilities (VASRD), with or without a deduction IAW VASRD §4.22 will be recommended.

Recurrent Right Shoulder Instability Condition . The CI’s entrance history and physical exam ination documented a normal physical exam of the upper extremities which indicat es that the CI was qualified for s ervice. The CI initially sought medical care on 27 January 2003 , stating that a heavy box fell onto his right shoulder causing pain and that he experience difficult ies with movement . T he CI stated that prior to entering the Naval , he did have a history of right shoulder locking and clicking, but denied prior injuries, dislocation or surgeries. Physical exam ination findings were noted as decreased strength in the right arm due to pain . At that time the examiner diagnosed sprain , with a strain , of the right shoulder / upper arm. The CI was evaluated in May 2003 for right shoulder dislocation , stating to the examiner that dislocation occurred 4 times a day . The examiner ’s findings were a loss of contour in the humeral head and difficulties with right arm movement at the shoulder . The CI’s d iagnosis was right shoulder dislocation and pain was treated with non-steroidal anti-inflammatory drug (NSAID) and recommend ed assigning the CI 8 months LIMDU status (from 8 July 2003 until 8 March 2004 ) for right shoulder instability .

The initial MEB n arrative s ummary (NARSUM) exam ination (approximately 19 months prior to separation ), documented that the CI had anterior/inferior subluxation without any frank dislocations and was performing at- home physical training . The MEB examiner noted that a radiological exam from July 2003 showed a Hill-Sach ’s lesion, some subluxation of the biceps tendon as well as a questionable s uperior l abrum a nterior and p osterior tear as well as a tear of the anterior/inferior labrum . The NARSUM examiner also specifically noted that the CI’s “ family history, past medical/surgical history, social history and service treatment records review reveals the patient's condition did not exist prior to military service . ” The examiner at that time recommended an additional 8 months of LIMDU and anticipation that after the completion of surgery , rehabilitation and LIMDU status , the CI would be fit to return to full duty status . The MEB NARSUM physical exam findings are summarized in the chart below . The CI underwent capsule labral reconstruction surgery on 24 March 2004. The p hysical therapist post-operative evaluation assisted the CI with developing right shoulder strength from April to May 2004. The o rthopedist documented that the CI experience sleep disturbance due to right shoulder pain during the night and pain with overhead activities ; however, his right shoulder flexion was full. The examiner returned the CI to full duty. The MEB NARSUM physical exam ination findings are summarized in the chart below.

In April 2005 the physical therapist noted a re - in j ury of r ight shoulder with instability secondary to lifting heavy bags . The second MEB NARSUM exam ination ( approximately 5 months prior to separation ), documented that the right shoulder instability condition did exist prior to entering military service based on reviews of past medical history and review ing of the CI’s service treatment record, stating that the CI experienced multiple right shoulder dislocations prior to enlistment. The MEB NARSUM physical exam ination findings are summarized in the chart below . The examiner diagnosed recurrent right shoulder instability and referred the CI to the PEB. In July 2005, a p rimary c are provider documented a nother right shoulder subluxation with tenderness to palpation and decreased ROM due to pain. He was given an injectable of NSAID , the subluxation was corrected and the shoulder was immobilized.

The VA Compensation and Pension (C&P) exam ination ( approximately 5 months post separation ) , documented right shoulder weakness; constant swelling and stiffness; squeezing, aching, burning, sharp pain with or without activity which was relieved by rest and / or NSAIDS. There was shoulder dislocation with minimal movement . The VA C&P physical exam ination findings are summarized in the following chart.

There were three ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized below :

Right Shoulder ROM (Degrees)	NASRSUM 18. 5 Mo s . Pre-Sep	NARSUM 5 Mo s . Pre-Sep	VA C&P 5 Mo s . Post-Sep
Flexion (180 Normal)	FROM	150	40
Abduction (180)		145	35
Comments : Left Hand Dominant	15 days pre op; Normal strength; Pos. instability; No tenderness to palpation	No tenderness to palpation; Pos. anterior apprehension	Pos. painful motion , guarding & instability; Pos. Deluca criteria
§4.71a Rating	10%	10%	20%

The Board direct ed attenti on to its rating recommendation based on the above evidence . The PEB coded the r ecurrent r ight s houlder i nstability condition as code 5099 analogous to 5003 , ( degenerative a rthritis ) , rated at 2 0% with application of EPST reduction criteria of 10% leaving the remaining 10% as a final rating at separation. The VA co ded the status post r ight s houlder s urgery with s train and s car condition as code 5201 ( limitation of a rm motion ) and rated at 20% consistent with “ m idway between side and shoulder level . ” The PEB assessed a 10% EPTS deduction from its original 20% rating . As with its consideration of fitness adjudications, the Board’s threshold for countering EPTS determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations and requires a preponderance of evidence. The file contains conflicting evidence with some documents supporting an EPTS determination while others specifically document the right shoulder condition should not be consider EPTS . Board members agree that there was not a preponderance of evidence necessary to overturn the PEB’s EPTS determination. The Board considered the PEB’s 10% EPTS deduction for fairness and members agree that because the CI’s entrance physical exam ination was normal and there was no annotation of a right shoulder condition, the Board recommends an EPTS deduction of 0%. The evidence clearly supports that the CI had recurrent right shoulder instability at the time of separation. The MEB NARSUM exam demonstrated ROM abduction of 145 degrees with anterior and inferior apprehension. The VA C&P exam was a more detailed exam ination and demonstrated worsening of the shoulder ROM with evidence of instability. The Board agreed that the CI had frequent exacerbations of shoulder dislocation. 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 r ecurrent r ight s houlder i nstability condition coded 520 2 IAW VASRD §4.71a.

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 r ecurrent r ight s houlder i nstability condition, the Board unanimously recommends a disability rating of 20 %, coded 5202 as 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 Right Shoulder Instability	520 2	2 0%
COMBINED	2 0%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20 140131 , w/atchs
Exhib it B. Service Treatment Record
Exhibit C. Department of Veterans ’ Affairs Treatment Record

XXXXXXXXXXXXXX
President

DoD 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 24 Apr 15 ICO XXXXXXXXXXXXXXX
(c) PDBR ltr dtd 24 Apr 15 ICO XXXXXXXXXXXXXXX
(d) PDBR ltr dtd 8 Jan 15 ICO XXXXXXXXXXXXXXX
(e) PDBR ltr dtd 14 Apr 15 ICO XXXXXXXXXXXXXXX
(f) PDBR ltr dtd 21 Apr 15 ICO XXXXXXXXXXXXXXX
(g) PDBR ltr dtd 7 Apr 15 ICO XXXXXXXXXXXXXXX

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

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

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

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

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

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

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

f. XXXXXXXXXXXXXXX, former USN: 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)

Similar Decisions

AF | PDBR | CY2014 | PD 2014 00677

Original file (PD 2014 00677.rtf) Auto-classification: Denied

Separation Date: 20071031 The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The CI was given a temporary U3 profile for left shoulder pain; however, there were no associated limited duties.The CI underwent a diagnostic arthroscopy with debridement of the shoulder labrum on 24 January 2007.Throughout 2007, the CI was treated by PT for chronic left...
AF | PDBR | CY2013 | PD 2013 01187

Original file (PD 2013 01187.rtf) Auto-classification: Approved

Post Separation)ConditionCodeRatingConditionCodeRatingExam Chronic Left Shoulder Pain5099-50030%Left Shoulder Pain, History of Dislocation5202-502410%Other x 0 (Not in Scope)Other x7 Rating: 0%Combined Rating: 40%Derived from VA Rating Decision (VARD) dated 20060921 (most proximate to date of separation [DOS]) ANALYSIS SUMMARY :IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. Chronic Left Shoulder Pain Condition . ...
AF | PDBR | CY2013 | PD-2013-01419

Original file (PD-2013-01419.rtf) Auto-classification: Approved

Pre-Separation) ConditionCodeRatingConditionCodeRatingExam Chronic Pain (Right Shoulder) w/Posterior Instability 5099-500310%Right Shoulder Posterior Instability s/p Reconstructive Surgery 520220%20040217Chronic LBP5299-523710%LBP5237Not Service Connected (NSC)20040217Other x 0Other x0 Combined: 20%Rating: 20%Derived from VA Rating Decision (VARD) dated 20040518 (most proximate to date of separation [DOS]) ANALYSIS SUMMARY :IAW DoDI 6040.44, the Board’s authority is limited to making...
AF | PDBR | CY2013 | PD-2013-01048

Original file (PD-2013-01048.rtf) Auto-classification: Denied

He was placed on limited duty (LIMDU) and referred for a Medical Evaluation Board (MEB). Recurrent Left Shoulder Pain Condition. The CI had a left shoulder injury prior to enlisting into the US Navy;however, his symptoms improved and the shoulder returned to normal.
AF | PDBR | CY2013 | PD-2013-02818

Original file (PD-2013-02818.rtf) Auto-classification: Denied

SEPARATION DATE: 20050310 The orthopedic MEB narrative summary (NARSUM) examination on 10 November 2004, reported continued right shoulder instability and subluxation with extension, abduction and overhead activity. 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...
AF | PDBR | CY2014 | PD 2014 01982

Original file (PD 2014 01982.rtf) Auto-classification: Denied

The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment...
AF | PDBR | CY2014 | PD 2014 00760

Original file (PD 2014 00760.rtf) Auto-classification: Denied

Service IPEB – Dated 20090504VA - (2 Days Pre-Separation)ConditionCodeRatingConditionCodeRatingExam Right Shoulder Pain and Stiffness Post Repair5099-500310%Right Shoulder Impingement, Status Post Right Labral Tear Surgery520120%20090728Other x0 (Not in Scope)Other x320090728 Combined: 10%Combined: 40%Derived from VA Rating Decision (VARD) dated 20091015 (most proximate to date of separation [DOS]) ANALYSIS SUMMARY : The Board acknowledges the CI’s information regarding the significant...
AF | PDBR | CY2013 | PD-2013-01932

Original file (PD-2013-01932.rtf) Auto-classification: Denied

SEPARATION DATE: 20051115 The Board first considered examination probative value noting “passive” ROM performed at the NARSUM and therefore, not in compliance with VASRD criteria. 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...
AF | PDBR | CY2013 | PD-2013-01526

Original file (PD-2013-01526.rtf) Auto-classification: Denied

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 PEBadjudicated the “recurrent left shoulder instability” as unfitting, and rated 10%,with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). Motor strength was slightly reduced in the left arm from pain and signs of forward instability,...
AF | PDBR | CY2012 | PD2012-00823

Original file (PD2012-00823.pdf) Auto-classification: Denied

On the MEB physical exam DD Form 2808, dated 05 November 2001, the examiner recorded “B shoulder subluxation, popping B shoulder, + sulcus sign L>R, N/V intact distally.” In the NARSUM, 4 months prior to separation, the examiner noted “he has minimal pain from this, but pretty much every time he tries to adduct, externally rotate the arms, he dislocates the shoulders. The examiner opined “Bilateral shoulder joint laxity, right greater than left, with history of recurrent, uncomplicated,...

Search Decisions

Decision Text

AF | PDBR | CY2014 | PD 2014 00920

Similar Decisions