RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00006
BRANCH OF SERVICE:  Army	BOARD DATE:  20150506
SEPARATION DATE:  20070727

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Tracked Vehicle Mechanic) medically separated for bilateral knee and shoulder pain.  These conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent U3L3 profile and referred for a Medical Evaluation Board (MEB).  The “right knee arthritis and chronic pain,” “left knee chondromalacia patella and chronic pain,” “left shoulder subluxation and chronic pain,” and “right shoulder subluxation and chronic pain,” conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (endometriosis and dyspareunia) for PEB adjudication.  The Informal PEB adjudicated “chronic pain bilateral knees and bilateral shoulders” as unfitting, rated 10%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  She provided a lengthy contention outlining her conditions, noting that she was not evaluated for back pain, and stating how her conditions continue to worsen and negatively impact her daily activities.  Her complete submission is at Exhibit A. 

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 Veterans Affairs Schedule for Rating Disabilities (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:

IPEB – Dated 20070608	VA* –~1 Mo. Pre-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Bilateral Knees and Bilateral Shoulders…	5099-5003	10%	Degenerative Joint Disease (DJD), Right Shoulder	5010-5203	10%	20070720	
			DJD, Left Shoulder…	5010-5203	10%	20070720	
			DJD, Left Knee	5010-5260	10%	20070720	
			DJD…Right Knee	5010-5260	10%	20070720	
Endometriosis	Not Unfitting	…Endometriosis	7617	50%	20070720	
Other x 1 (Not In Scope)	Other x 8	
RATING:  10%	COMBINED:  90%	
*Derived from VA Rating Decision (VARD) dated 20070925 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The PEB combined the bilateral knees and bilateral shoulder 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.  The Board must follow suit (IAW DoDI 6040.44) 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), 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 the bilateral knees and bilateral shoulder conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Bilateral Knee Condition.  The evidence makes clear that the right knee was associated with more disability than the left one in this case.  The disparity was such that the question is raised as to whether the left knee was reasonably justified as separately unfitting.  The evidence contained only one document specifically related to the left knee, a magnetic resonance imaging (MRI) report dated 5 months prior to separation.  Although the MEB forwarded the left knee condition as “medically unacceptable,” there is no service treatment record (STR) data available for review that would support any functional impairment separately related to the left knee.  The profile identified a bilateral knee condition and a right knee condition as causing duty limitations.  The commander’s statement did not specifically identify any condition as causing duty impairment.  After due deliberation, Board members agreed that the evidence does not support a conclusion that the functional impairment from the left knee was integral to the CI’s inability to perform her MOS; and, accordingly cannot recommend a separate rating for it.

Right Knee Pain Condition.  The CI’s right knee was injured while low crawling during basic training.  She was treated non-operatively and did well until August 2003 when she underwent an arthroscopic debridement of the medial and lateral menisci, and the femoral groove.  Post-operatively she did well and deployed to Iraq.  While deployed to Iraq, she sustained another right knee injury and suffered a torn anterior cruciate ligament (ACL).  She had symptoms of instability and underwent right ACL repair in December 2004.  An MRI report, dated 5 months prior to separation, was consistent with past ACL repair and was otherwise normal.  The narrative summary (NARSUM) prepared approximately 2 months prior to separation noted continued symptoms of instability and pain.  At the VA Compensation and Pension (C&P) exam performed a week prior to separation, the CI reported a history consistent with that summarized above.  Additionally, the CI related having locking episodes with the right knee, but no actual incidence of falls.

The goniometric range-of-motion (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.

Right Knee ROM (Degrees)	NARSUM ~2 Mos. Pre-Sep	VA C&P ~1 Week Pre-Sep	
Flexion (140 Normal)	100	80	
Extension (0 Normal)	-10	-5	
Comment	Pos. painful motion & tenderness to palpation; Mechanical block in extension; Trace effusion; No instability; Pos. crepitus & patellar apprehension	Antalgic gait; Pos. tenderness to palpation & painful motion; No instability	
§4.71a Rating	10%	10% (VA 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the constellation of bilateral knee and shoulder conditions by applying the analogous VASRD code 5099-5003 and rated 10% with cited application of the USAPDA pain policy.  The VA rated the right knee condition at 10%, applying the combination code of 5010 (arthritis due to trauma) with 5260 (limitation of leg flexion) and citing, “Since you demonstrate painful motion, and increased fatigability and weakness with repeated motion, the 10 percent evaluation is assigned.”  The Board noted that there was no physical exam or STR evidence of right knee instability after surgical repair of the ACL.  There was adequate evidence of painful motion to support application of a 10% rating under code 5003.  However, the NARSUM also documented a mechanical block of the right knee ROM at 10 degrees of extension which is also compensable at the 10% rating level under the knee specific code 5261 (limitation of leg extension).  There was no route to a higher rating than 10% under any other appropriately applied VASRD code.  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 right knee pain condition.

Bilateral Shoulder Condition.  The evidence makes clear that the left shoulder was associated with more disability than the right one in this case.  The disparity was such that the question is raised as to whether the right shoulder was reasonably justified as separately unfitting.  The evidence contained only one document specifically related to the right shoulder, a plain film X-ray report dated 4 months prior to separation.  The clinical history documented in that report stated, “right shoulder pain x2 weeks that is progressively getting worse.”  Although the MEB forwarded the right shoulder condition as “medically unacceptable,” there was no STR data available for review that would support any functional impairment separately related to the right shoulder alone.  Additionally, the profile completed for the MEB did not mention a right shoulder condition.  The commander’s statement did not specifically identify any condition as causing duty impairment.  After due deliberation, Board members agreed that the evidence does not support a conclusion that the functional impairment from the right shoulder pain condition was integral to the CI’s inability to perform her MOS; and, accordingly cannot recommend a separate rating for it.

Left Shoulder Condition.  The evidence supports that the CI suffered a left shoulder dislocation in 1999 and underwent surgical correction some time later.  There were only two documents that concern the left shoulder in the evidence present for review.  One was a brief provider note that documented, “… a reproducible sub-acromial clunk and pain with rotation” in the physical exam section.  The provider then requested an MRI arthrogram be performed with an impression of, “History of Bankhart now with pain and clunking.”  The other document was the MRI arthrogram (performed 5 months prior to separation) that documented an avulsed anterior labrum, inflammation versus partial tear of the rotator cuff and moderate degenerative changes of the left acromioclavicular joint.  The NARSUM contained the following statement concerning the shoulder condition:

“The left shoulder dislocated … playing unit softball while in Germany.  She underwent a standard physical therapy rehabilitation period and subsequently underwent an open anterior capsular reconstruction.  Although she no longer dislocates, she has continued sensations of ‘going out’ and chronic pain.”

At the C&P exam, the CI reported a history consistent with that summarized above with the following additional statement, “For the shoulders, the flare-ups occur with overhead activities and also any lifting in excess of 10 pounds.  There are no incapacitating episodes.”

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.

Left Shoulder ROM (Degrees)	MEB ~2 Mos. Pre-Sep	VA C&P ~1 Week Pre-Sep	
Flexion (180 Normal)	178	110	
Abduction (180)	168	110	
Comments:  Right hand dominant	Pos. apprehension, tenderness to palpation & guarding	Pos. painful motion	
§4.71a Rating	10%*	10%* (VA 10%)	
*IAW VASRD §4.59, Painful motion

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the constellation of bilateral knee and shoulder conditions by applying the analogous VASRD code 5099-5003 and rated 10% with cited application of the USAPDA pain policy.  The VA rated the left shoulder condition at 10%, applying the combination code of 5010 (arthritis due to trauma) with 5203 (impairment of the clavicle or scapula) and citing, “Since you demonstrate painful motion, which causes increased fatigability and weakness with repeated motion, the 10 percent evaluation is assigned.”  The Board noted that there was no STR evidence of recurrent dislocation that would allow for the application of the shoulder-specific code 5202 (other impairment of the humerus) or evidence of compensable ROM measurements under code 5201 (limitation of arm motion).  There was ample evidence of painful motion (§4.59) and functional loss (§4.40) that allows for a 10% rating under code 5003.  There was no evidence of incapacitation due to the left shoulder condition as required for the 20% rating under code 5003.  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 pain condition.

Contended Endometriosis Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the endometriosis condition was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The endometriosis condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All STR entries present for review were considered by the Board.  There was no performance-based evidence from the record that this condition significantly interfered with satisfactory duty performance.  After due deliberation, and 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 endometriosis contended condition and so no additional disability rating is 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the bilateral knees and bilateral shoulder conditions was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the left knee pain condition, the Board unanimously agrees that it was not separately unfitting and cannot recommend it for additional disability rating.  In the matter of the right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5261 IAW VASRD §4.71a.  In the matter of the right shoulder pain condition, the Board unanimously agrees that it was not separately unfitting and cannot recommend it for additional disability rating.  In the matter of the left shoulder pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended endometriosis condition, the Board unanimously recommends no change from the PEB determination 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 her prior medical separation:

CONDITION	VASRD CODE	RATING	
Right Knee Pain	5261	10%	
Left Knee Pain	Not Unfitting	
Right Shoulder Pain	Not Unfitting	
Left Shoulder Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131220, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		XXXXXXXXXXXXXXX 
President 
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXXXXXXX, AR20150014189 (PD201400006)

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 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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA