RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD1301106	
BRANCH OF SERVICE:  Army 	 BOARD DATE:  20140107
SEPARATION DATE:  20020426 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (88M, Motor Transport Operator) medically separated for various orthopedic conditions (right-shoulder, bilateral knee, right-ankle, and lumbar spine).  The shoulder condition surfaced in 1993 and resulted in two surgical interventions.  He suffered a sports injury to the right-knee in 1998 and underwent an anterior cruciate ligament (ACL) repair that year.  He later developed left-knee pain resulting in various surgeries from 1998-2000.  The CI additionally complained of chronic low back pain (strain injury 1993) and chronic right-ankle pain (sprained 1997), which had been managed conservatively.  Despite treatment, the various orthopedic conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued an L3/U3 profile and referred for a Medical Evaluation Board (MEB).  Five orthopedic diagnoses were forwarded to the Physical Evaluation Board (PEB) as separately medically unacceptable conditions in accordance with (IAW) AR 40-501: “severe glenohumeral arthritis right shoulder,” “osteochondral defect, right knee,” “partial lateral meniscectomy left knee,” “low back pain secondary to spondylolysis” and “right ankle pain.”  There were no other MEB submissions.  The PEB adjudicated the right-shoulder condition as unfitting rated at 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD); the bilateral knee, right-ankle and lumbar diagnoses were consolidated as a single unfitting condition coded analogously to 5003 (degenerative arthritis) rated at 10%, with likely application of the U.S. Army Physical Disability Agency pain policy and/or AR 635-40 (B.24.f).  The CI made no appeals and was medically separated.

CI CONTENTION:  “More medical attention needed after multiple surgeries and more surgeries needed.  Deteriorating condition due to injury, pain, discomfort, loss of motion, mobility and overall quality of life has been negatively affected.”

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 right-shoulder, bilateral knee, low back and right-ankle conditions are 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 Military Records.

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 Military Disability Evaluation System has neither the role nor the authority to compensate service 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 Veteran Affairs, operating under a different set of laws.

RATING COMPARISON: 

Service PEB – Dated 20011221	VA - Based on Service Treatment Records (STR)*	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Arthritis Right-Shoulder	5010-5003	10%	Glenohumeral Arthritis, Right-Shoulder 	5010	10%	STR*	
Pain Both Knees…Right-Ankle…Back	5099-5003	10%	S/P Meniscectomy, Left-Knee 	5259	10%		
			Ostochondral Defect, Right-Knee	5014	0%		
			Low Back Spondylosis	5295	NSC		
No Additional MEB/PEB Entries	Other x 4 (No Claim for R Ankle)		
Combined:  20%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20030515.   
* CI did not show for scheduled VA C&P exam; subsequent VARD 20060728 (four years after separation).

ANALYSIS SUMMARY:  

Right-Shoulder Condition.  In April 1993, the Line of Duty (LOD) entry for the right-shoulder documents an atraumatic onset of pain.  There are no available Service Treatment Record (STR) entries until a postoperative discharge note in February 2000 for an arthroscopic procedure (Bankart repair and capsular shrinkage).  There are intermittent physical therapy notes for ongoing treatment leading up to a repeat arthroscopy for labral repair in December 2001.  There are continuing treatment notes with ongoing symptoms from that time up to MEB referral.  Range-of-motion (ROM) measurements evidenced in the STR varied from extension/abduction of 150⁰ to 175⁰.  No instability was in evidence.  There was radiographic demonstration of glenohumeral arthritis.  The narrative summary (NARSUM) stated, “He continues to complain of significant pain in his shoulder with use of the arm and again especially with reaching or overhead activities.”  The physical examination recorded ‘elevation’ of 160⁰, crepitation with motion, and “pain with resisted abduction and internal rotation.”  Strength was noted as 5/5 and neurovascular findings were normal.  As noted above there is no Veterans Administration (VA) evidence proximate to the date of separation.

The Board directs attention to its rating recommendation based on the above evidence.  The ROM evidence does not support the minimum rating under the single limitation of motion code for the shoulder (5201).  There was no clinical evidence of ankylosis, fracture, recurrent dislocation, or instability; thus no shoulder joint code under VASRD §4.71a would yield a rating greater than 10%.  Application of VASRD §4.59 (Painful motion) was supported by NARSUM findings to achieve the minimum rating (10%) under code 5010 (traumatic arthritis), as conferred by the PEB and the VA.  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 right-shoulder condition.

Board Approach to PEB Consolidation of Multiple Conditions.  As noted above, the PEB combined four potentially separate conditions under a single disability rating, coded analogously to 5003.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), then separate ratings are recommended with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  To that end, the evidence for bilateral knee, right-ankle and lumbar spine conditions are presented separately, with attendant recommendations regarding separate unfitness and separate rating if indicated.
Bilateral Knee Condition.  There is an LOD entry for a twisting injury to the right-knee (football) in November 1998.  Although no operative records are in evidence, subsequent entries indicate that the CI underwent an ACL repair in 1999.  Additionally, an arthroscopic meniscal debridement was performed in December 2000.  There are multiple STR entries reflecting normal or nearly normal ROM of the right-knee.  None of these entries document the presence (or specify the absence) of painful motion.  No exams reflect instability or gait disturbance.  There is no LOD or specific STR entry for the onset of the left-knee condition, although there is an operative discharge note for an arthroscopic repair of a meniscal tear and medial plica debridement in July 1999.  There is also a record of an additional meniscal debridement in February 2001 and, although not evidenced in the STR, the NARSUM made note of a third arthroscopic intervention.  There are no STR entries for significant ROM impairment, instability, or gait disturbance.  The NARSUM documented a complaint of “intermittent achy pain with swelling in the knees especially after activity.  It is intermittent but does appear to be related to activity.”  The physical exam noted an “unsteady gait,” joint line tenderness and positive McMurray’s (sign of cartilage impingement) on the right; no instability in any plane of either joint and flexion of 135⁰ (normal 140⁰) on the right and “normal” on the left.  There were X-ray findings of osteochondral defects for both knees.  The commander’s performance statement did not provide condition-specific limitations, only that the CI’s “profile prevents him from performing his primary [MOS].”  The profile specified “bilateral knee” limitations, and cited the “unsteady gait” referenced in the NARSUM.

The Board directs attention to its recommendations based on the above evidence. the Board first considered whether the knee condition(s) met the Board’s threshold for separate rating (as elaborated above).  It is noted that the bilateral knee condition was considered to fail retention standards and was the basis for a L3 profile.  Especially considering the referenced gait limitations, the bilateral knee condition logically undermined MOS performance.  Members agreed, therefore, that the bilateral knee condition was reasonably justified as separately unfitting.  Deliberations then turned to the issue of whether each separate knee was reasonably justified as unfitting in itself, or whether it was more reasonably determined that the combined effect of the bilateral limitations rendered the CI incapable of continuing service within his MOS.  In this case, both knees were considered to fail retention standards, both were implicated by the NARSUM and in the commander’s statement, and both were profiled.  Member consensus, after dissenting deliberation, was that each joint should be conceded as reasonably separately unfitting; the board then progressed to appropriate coding and rating options for each knee.

With regard to the right-knee condition, there was minimal or no ROM limitation that would support the minimum 10% rating by ROM criteria.  There was no documentation in support of VASRD §4.59 (painful motion), but painful motion could be inferred from the historical evidence.  Members also considered that criteria for a 10% rating under VASRD §4.40 (functional loss) could be argued based on the specific NARSUM documentation of pain elicited by activity.  Finally, it was considered that, although ACL injury was the precipitant pathology, meniscal surgery had also been required and remained symptomatic at separation (supported by McMurray finding).  The latter pathology supports the code 5259 (symptomatic post-meniscectomy), which confers a 10% rating independent of painful motion or ROM limitation.  Considering the totality of the evidence and conceding reasonable doubt, member consensus was that a disability rating of 10% for the right-knee condition was appropriately recommended under code 5003-5259.  

With regard to the left-knee condition, there is unequivocal support for a 10% rating under code 5259 as elaborated above and as conferred by the VA.  As member consensus concedes that the left-knee was separately unfitting, a Board recommendation for a 10% rating under code 5259 is strongly justified by VASRD §4.7 (higher of two evaluations). 

Lumbar Spine and Right-Ankle Conditions.  In August 1993, there is an LOD entry for a back injury while wrestling.  There are no related contemporary STR entries to that incident.  There is a 1997 consult referral to Orthopedics for a “back injury while running,” but no elaboration or follow-up.  There are no subsequent STR entries until radiographic evaluation in July 2001, presumably related to MEB proceedings.  Plain X-rays were interpreted as “normal except spondylolysis at L5/S1 level”; a follow-up bone scan confirmed mild localized facet arthritis without disc disease or other pathology.  The lumbar spine condition was not profiled in service including by the amended profile at separation.  In December 1997, there is an LOD entry for an ankle sprain playing basketball.  There is an associated entry for an emergency room visit with a negative X-ray, followed by a temporary profile.  The ankle was not listed on a 1998 profile, it was not re-profiled until the MEB and there are no subsequent STR entries until MEB proceedings.  MEB X-rays of the ankle were normal.

In the CI’s initial presentation to an orthopedist in-request of referral for MEB (May 2001), the examiner stated, “He feels because of the pain in his shoulder and his knees, he is not able to participate effectively and perform the duties required of him in the U.S. Army.”  No mention of additional conditions was documented; the initial NARSUM included only the shoulder and knee conditions.  In the December 2001 MEB history and physical, the CI documented diagnoses associated with the lumbar and right-ankle but did not document active complaints.  The examiner entered normal exam findings for the spine and ankle and included only the shoulder and knee conditions as diagnostic entries.  On 29 June 2001, there is an STR entry documenting a visit seeking MEB addendums for the lumbar and ankle conditions which included the statement, “has never sought medical attention for any of the above conditions.”  The VA rating decision denied service-connection for the lumbar condition because “there is no evidence of a permanent residual or chronic disability shown by the evidence of record”; there was no claim or VA evaluation of the ankle condition.  As noted above the commander’s statement was not helpful regarding the lumbar condition; the commander referenced only limitation due to the profile, and the profile did not include the lumbar condition (though it did include the right-ankle condition).

The Board directs attention to its recommendations based on the above evidence.  The Board first considered whether either the lumbar or right-ankle conditions, having been de-coupled from the combined PEB adjudication, remained themselves unfitting as established above.  An established principle for fitness determinations is that they are performance-based, and the Board is confronted in this case with the lack of any evidence that the limitations imposed by either condition prohibited the performance of the duties required of the MOS.  Both conditions were chronic, essentially clinically silent, and not profiled during a long period of satisfactory performance up to the time of MEB referral for the shoulder and knee conditions.  In this regard it must be noted that Service fitness determinations are subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral) which stipulates “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  After due deliberation in consideration of the totality of the evidence, members agreed that neither the lumbar spine nor right-ankle condition was reasonably justified as separately unfitting; accordingly, no additional disability rating can be recommended for either 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 discussed above, PEB reliance on the pain policy and/or AR 635-40 for its combined adjudication of the bilateral knee, right-ankle and lumbar spine conditions was likely in this case; those conditions were adjudicated independently of that regulation by the Board.  In the matter of the right-shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the combined bilateral knee, right-ankle and lumbar spine conditions, the Board by a vote of 2:1 makes the following recommendations:  an unfitting right-knee condition coded 5003-5259 rated at 10%; an unfitting left-knee condition, coded 5259 rated at 10% (both IAW VASRD §4.71a; and, a determination that neither the lumbar spine nor right-ankle conditions were reasonably justified as separately unfitting and subject to disability rating.  The single voter for dissent (who recommended that the knees be rated at 10% as a bilateral condition under code 5099-5010) 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:

UNFITTING CONDITION	VASRD CODE	RATING	
Arthritis, Right-Shoulder	5010-5003	10%	
Osteochondral Defect with Ligamentous/Meniscal Injury and Surgical Residuals, Right-Knee	5003-5259	10%	
Meniscal Injury and Surgical Residuals, Left-Knee	5259	10%	
Spondylolysis, Lumbar Spine	Not Unfitting	
Chronic Sprain, Right-Ankle 	Not Unfitting	
COMBINED (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130806, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		           

SFMR-RB				
MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20140007235 (PD201301106)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl