RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01259
BRANCH OF SERVICE:  Army	BOARD DATE:  20150121
SEPARATION DATE:  20040524

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-7 (Human Resource Specialist) medically separated for right knee and left shoulder pain conditions.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3/L3/S1 profile and referred for a Medical Evaluation Board (MEB).  Right knee, patellofemoral pain syndrome and patellofemoral arthrosis and left shoulder, acromioclavicular joint arthritis, characterized as not meeting retention standards, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (charted below).  The Informal PEB (IPEB) adjudicated chronic right knee pain and left shoulder pain conditions as unfitting, rated 0% each respectively, with presumed application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI appealed to the Formal PEB but withdrew his appeal and he was medically separated.

CI CONTENTION:  The CI attached a one page statement to his application which was reviewed by the Board and considered in its recommendations.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

Service IPEB – Dated 20031218	VA* - (7 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain	5099-5003	0%	Right Knee Condition	5261	NSC	20031022	
Left Shoulder Pain	5003	0%	Chronic, Intermittent Left Shoulder Arthralgia	5201	NSC	20031022	
Mechanical Low Back Pain	Not Unfitting	Low Back Pain	5299-5237	NSC	20031022	
Anxiety and Panic Attack	Not Unfitting	Panic Disorder	9214	30%	20031022	
Other x 0 (Not in Scope)	Other x 6 (Not in Scope)	
Combined:  0%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20040603 (most proximate to date of separation (DOS)).

ANALYSIS SUMMARY:  The Board found that the PEB gave a rating of 0% for the unfitting musculoskeletal conditions prior to separation.  After the PEB decision, the CI was diagnosed with fibromyalgia (FM) prior to separation by his family practitioner, and not by consultation with a rheumatologist.  After separation, the VA included all the musculoskeletal conditions (knee, shoulder and back pain) under FM and gave the CI a 20% rating effective the date of separation.  Three months after separation, the VA increased his FM rating to 40% and granted a non-compensable service-connection for the shoulder.  The FM is not in scope, as it is not listed on the MEB or the PEB.  Therefore we will be addressing the evidence regarding his pre-separation worsening, as we know that the CI was given an increase in compensation soon after separation.  The CI had evidence of longstanding MH conditions prior to referral to MEB.  He was not profiled for, nor was his performance hindered by the MH conditions.

Chronic Right Knee Pain.  At the MEB medical examination, approximately 10 months prior to separation, the CI reported that his right knee was always painful, “[gave] out with too much use” and required wearing a brace when walking long distances.  The MEB physical exam noted that the CI was “unable to duck walk.”  There were no other specific findings on examination.  At the MEB narrative summary (NARSUM) examination, approximately 7 months prior to separation, the CI reported chronic right knee pain, intermittent swelling, stiffness and giving way that progressed despite physical therapy.  He was diagnosed with retropatellar pain syndrome and not felt to be a candidate for surgery.  Examination showed a range-of-motion (ROM) from 0-130 degrees (normal 0-140 degrees), no swelling or effusion, slight medial tenderness, no patellar instability, positive patellar grind, negative testing for meniscal injury (negative Lachman, drawer, pivot and McMurray) and no ligamentous instability (to varus & valgus stress).

At the VA Compensation and Pension (C&P) exam approximately 7 months prior to separation, the CI reported, that his right knee pain was constant with occasional swelling, and that “lifting and carrying any weight … will cause his right knee to buckle.”  His examination documented no quadriceps atrophy, no assistive devices in use, a normal gait, no effusion, tenderness to the superior aspect of the right knee joint, full ROM with flexion to 140 degrees, no laxity or grinding, and negative anterior drawer sign.

In a formal letter of disagreement for his PEB disability rating, 5 months prior to separation, the CI stated that his knee felt like it was locking up and, with increasing pain, would give out in a forward motion.  At a medical assessment, 2 months prior to separation, the CI reported continued worsening of his right knee pain, with reference to a magnetic resonance imaging (MRI) (obtained after the NARSUM and PEB), which documented a meniscal injury (“probable tear of the posterior horn of the medical meniscus”) for which he was awaiting surgery.  An orthopedic visit documented continued right knee pain with giving out however no exam was performed.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee at 0% under 5099-5003 (degenerative arthritis without loss of joint motion) prior to any documentation of meniscal injury.  Three months after separation, the VA rated the knee at 10% for retropatellar pain syndrome (coded 5261).  The service treatment record (STR) did not document any compensable ROM impairment under the specific knee codes; however, the MEB, NARSUM, and VA C&P all documented a history of pain, swelling and giving way and several notes documented worsening after the IPEB ratings determination.  There was radiographic documentation of meniscal pathology warranting a 10% rating under 5259 (cartilage, semilunar...).  There was no documented evidence of frequent locking, pain and effusion, and no physical examination evidence of meniscal injury to warrant a 20% rating under code 5258.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 10% for the chronic right knee pain condition.

Left Shoulder Pain.  At the MEB medical examination, approximately 10 months prior to separation, the CI reported left shoulder pain, “trouble with lifting over 10 pounds or overhead use of left arm,” and that the left side of [his] hand goes numb and tingles when left shoulder acts up.  The physical examination was “normal.”   At the MEB NARSUM examination dated 27 October 2003, approximately 7 months prior to separation, the CI reported that he had injured his left shoulder (acromioclavicular [AC] joint) while lifting weights for physical training in 2001.  An MRI documented degenerative AC hypertrophy… suspicious for impingement and degenerative tendinosis.  An orthopedic evaluation diagnosed left shoulder impingement and AC arthritis.  Physical therapy allowed him to regain his ROM; however he was unable to lift greater than 10 pounds without marked increase in pain.  The examiner referenced an orthopedic exam that documented full forward flexion, abduction, and external and internal rotation; tenderness over the proximal shoulder, pain on examination for impingement and AC pathology (positive Hawkins and O’Brien maneuvers); and no ligamentous laxity.  At the VA C&P exam approximately 7 months prior to separation, the CI reported daily pain radiating to the mid clavicle and posteriorly which was worse with repetitive motion.  Examination revealed no deltoid atrophy, normal strength, normal ROM.  No provocative testing (examinations for impingement) was performed.

The Board directed attention to its rating recommendation based on the above evidence.  At the time of separation, the VA gave a rating of 0% under 5201 (Arm, Limitation of motion) upon receipt of additional evidence from the STR showing normal ROM and no objective evidence of pain on examination.  Prior to separation, there was documented evidence of AC joint degeneration (arthritis) with degenerative tendinosis which substantiated a 10% rating IAW VASRD §4.59 painful motion, 5099-5024 (tenosynovitis), or under 5099-5003 (osteoarthritis).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left shoulder condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the low back pain (LBP) and anxiety and panic attack were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Mechanical Low Back Pain.  The records indicated that the CI experienced intermittent episodes of back pain that were managed and had improved with medications, physical therapy and avoidance of heavy lifting.  Radiographic evaluation documented mild degeneration of the L2-3 and L4-5 disc spaces.  There was no evidence of physician prescribed bed rest specifically related to the low back condition in the two years prior to separation.  The profile for the knees could have hidden limitations due to the back, but there were no profiles specifically written for the back condition.  
There was no performance based evidence from the record that the LBP significantly interfered with satisfactory duty performance, and the condition was not judged to fail retention standards. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the LBP condition and so no additional disability rating is recommended.

Anxiety and Panic Attack.  Available records noted the MH conditions of panic disorder and anxiety were recorded on the MEB dated 30 October 2003.  The PEB returned the case on 24 November 2003 due to the absence of a psychiatric evaluation.  The psychiatry NARSUM Addendum stated that the CI reported he began to have panic attacks in 1993 but was not formally diagnosed until 1996.  He reported he was also diagnosed with obsessive compulsive disorder (OCD).  The treatment records indicated that the CI had frequent MH visits in 2001; however, there were no treatment records in 2002 for MH and there were a total of three MH encounters prior to the psychiatric NARSUM.  He started taking medications off and on in 2003.  The CI indicated he frequently thought about germs and did not like to participate in events where crowds were present due to contamination fears.  He noted particular concerns with eating at job related functions and at times he made excuses not to attend.

The psychiatric NARSUM, dated 15 December 2003, approximately 4 months prior to separation, recorded a normal mental status examination, and did not record a Global Assessment of Functioning score (GAF); however, the examiner stated, “The soldier relates that if he were able to be assigned to a fixed unit, he would be able to serve in his MOS; however, given his physical condition as well as his panic disorder and OCD, IAW AR 40-501, section 3-32, it is highly unlikely that the patient can stay in the U.S. Army, is not deployable worldwide, and these conditions could possibly interfere with staying on active duty.”  There was no recommendation for fitness status, or for MH profile, and no description of the CI’s impairment for military or social/industrial impairment as the result of his MH condition.  The Board noted AR 40-501, 3-32 is assigned to mood disorders; his conditions are classified as anxiety disorders (3-33).  The NARSUM was recorded three days prior to PEB adjudication.  On 23 December 2003, the CI rebutted the PEB’s decision regarding his knee and shoulder condition.

On 30 December 2003, his GAF score was 60 (moderate symptoms), the psychologist recommended a temporary S3 profile, and noted the CI was not worldwide qualified due to pending discharge for arthritis.  At the time the CI reported several panic attacks a week and OCD symptoms, neither had required a visit to the emergency room.  In April 2004, CI submitted a letter of rebuttal regarding his MH condition.  There were no changes made regarding the PEB decision.  The Psych NARSUM written approximately 6 weeks after the PEB’s decision, and 12 weeks prior to separation, recommended an S4 profile, and recommended against retention.  However, this was a different examiner with additional MH diagnoses appropriately not considered by the MEB or PEB.  The CI’s profile was not changed to reflect the psychiatrist’s recommendation.  However, the psychiatrists did not describe any duty related limitations.  His commander’s statement did not implicate any MH conditions and stated “While I feel that (the CI) is an absolutely outstanding Personnel Sergeant and that his administrative duties can still be performed with minimal problems, it is his ability to carry out his physical, soldiering, and war time missions that have been permanently hindered.”

The MH conditions were reviewed by the Board and there was no performance-based evidence from the record that any MH condition significantly interfered with satisfactory duty performance.  The Board acknowledged the applicant had adequate duty performance prior to referral into the MEB process and had brief period of exposure to medication with some noted benefit.  Therefore, the Board agrees with the PEB that the CI’s condition did not rise to the level of unfitting prior to separation.  

After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended MH conditions and so no additional disability ratings are recommended.

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.  As discussed above, PEB reliance on the VASRD §4.71a for rating chronic right knee pain and left shoulder conditions were operant in this case and the conditions were adjudicated independently of that instruction by the Board.  In the matter of the chronic right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5259 (cartilage, semilunar, symptomatic) IAW VASRD §4.71a.  In the matter of the left shoulder pain condition and IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 10% coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended LBP and anxiety and panic attack conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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	
Chronic Right Knee pain	5099-5259	10% 	
Left Shoulder Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SAMR-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 XXXXXXXXXXXXXXX, AR20150009876 (PD201301259)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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			     

CF: 
(  ) DoD PDBR
(  ) DVA