RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00462
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070901

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Chaplain’s Assistant) medically separated for left shoulder and bilateral knee conditions.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent U3/L3 profile and referred for an Medical Evaluation Board (MEB).  Left shoulder pain and bilateral knee pain were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated left shoulder and bilateral knee pain as unfitting rated 10% with cited application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 condition 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 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:

Service IPEB – Dated 20070620	VA* - (~3 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Shoulder Pain & Bilateral Knee Pain	5099-5003	10%	Left Shoulder Strain…	5201	20%	20071205	
			Scar, Left Shoulder…	7804	0%	20071205	
			Left Knee Strain	5260	10%	20071205	
			Right Knee Strain	5260	10%	20071205	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20080306 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The PEB combined the left shoulder and bilateral knee conditions under a single service 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.

Left Shoulder Condition.  The service treatment record (STR) documents a history or recurrent left clavicle and shoulder injuries.  A left shoulder X-ray was normal.  A left shoulder MRI showed findings suspicious for a rotator cuff tendon partial tear and a possible impingement syndrome.  The CI underwent an arthroscopic decompression of his left shoulder impingement.  The MEB narrative summary (NARSUM) by orthopedic surgery, 11 months before separation, recounted the history and interventions.  In the immediate postoperative period, he was started on a physical therapy (PT) protocol and fairly rapidly his shoulder became stiffer.  Orthopedic surgery performed a steroid injection and prescribed another round of PT.  The left shoulder exam revealed tenderness on manipulation in all planes.  There was crepitus (grating sound or sensation) and indication of some capsular contracture.  There was no indication of specific weakness of the rotator cuff, deltoid, or other shoulder girdle muscles, although, overall range-of-motion (ROM) was extremely limited in all planes.  Neurovascular, sensory, and motor function was intact distally.  The surgeon did not offer surgery and the CI refused further PT.  Shoulder manipulation under sedation, to address possible arthrofibrosis or capsular contracture, was suggested but the CI declined.  The diagnosis listed postoperative capsular contraction.

The VA Compensation and Pension (C&P) exam, 3 months after separation, recounted the history and interventions.  The right hand dominant CI complained of 8/10 left shoulder pain with chronic 1-10/10.  The pain was characterized as burning, aching and sharp.  He denied swelling, heat, redness, lack of endurance, locking, fatigability or dislocation.  Pain was exacerbated by activity and lifting and relieved by rest.  The CI reported he could function without medication.  The left shoulder exam revealed a post-arthroscopy scar (0.5 cm by 0.5 cm) without tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema (swelling from excess tissue fluid), keloid (abnormal/excessive scar tissue proliferation), hypo-/hyperpigmentation or abnormal texture.  The left shoulder was tender but there was no edema, effusion (fluid collection), weakness, redness, heat, guarding of movement, or subluxation (incomplete or partial dislocation).  Left shoulder active ROM is listed in the chart below.  The joint function was additionally limited, after repetitive use, by pain, fatigue, weakness, and lack of endurance with pain having the major functional impact.  The joint function was not additionally limited by incoordination.  Motor function, sensory function, and deep tendon reflexes (DTRs) were normal.  The left shoulder X-ray was normal.  The diagnosis listed left shoulder strain status post arthroscopy with scar.

The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Left Shoulder ROM
(Degrees)	PT
~8 Mo. Pre-Sep
(20061229)	PT
~5 Mo. Pre-Sep
(20070328)	VA C&P
~3 Mo. Post-Sep
(20071205)	
Flexion (180 Normal)	(105) 106/105/106	85	80	
Abduction (180)	(100) 106/100/100	90	80	
Comments	--	Painful motion	--	
§4.71a Rating	0%	20%	20%	

The Board directed its attention to its rating recommendation based on the above evidence.  The Board first considered whether the left shoulder condition, when considered alone separate from the knee conditions, was unfitting for continued military service.  The Board concluded that the evidence of the STR and the commander’s statement supported a conclusion that the left shoulder condition standing alone would have caused the CI to be referred into the DES and to have been determined to be unfit.  The Board then considered its rating recommendation for the unfitting left shoulder condition at the time of separation.  The Informal PEB, 2 months before separation, rated the left shoulder condition at 0% with code 5099-5003 (Analogous for arthritis, degenerative).  The PEB cited decreased ROM due to pain, status post subacromial decompression for impingement, did not fully participate with the PT postoperatively, can abduct to 115 degrees, no rotator cuff weakness, no further surgery offered, manipulation under sedation declined because of PT requirement, and rated for pain IAW USAPDA pain policy.  The VA rating decision cited the C&P exam 3 months after separation, rated the left shoulder at 20% with code 5201 (Arm, limitation of motion of: minor).  The VARD cited decreased ROM due to pain, status post surgery for rotator cuff tear, left shoulder strain, normal X-ray, tenderness, but no edema, effusion, weakness, redness, heat, guarding of movement, or subluxation.  Based upon the proximate exams (PT and C&P) the limitation of motion was consistent with the 20% rating (at shoulder level [90 degrees]) under code 5201.  There was no evidence of scapulohumeral ankylosis to support a rating under 5200, and no evidence of malunion of the humerus, clavicle or scapula, or of dislocation, to support a rating under 5202 or 5203.  Board members agreed there was sufficient evidence of painful motion (§4.59) and functional loss (§4.40) to support a 10% rating.  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 left shoulder condition coded 5299-5201.

Left Knee Condition.  The STR documents a history of bilateral knee pain (L>R).  A left knee X-ray showed an unfused ossification center (bone formation site) of the anterior tibial tubercle (boney prominence below kneecap).  A left knee MRI showed chronic degeneration of the medial meniscus (crescent-shaped fibrocartilaginous knee structure), partial lateral subluxation of the patella (kneecap), and a very small effusion.  In the NARSUM the CI complained of non-specific bilateral knee pain for a long period of time.  The orthopedic surgeon stated “He was a college football player and knee pain quite honestly predates his time in the Army.  He said the pain is much worse since he has been in the Army.  So, based upon his description we are terming the condition as service aggravated.”  The left knee showed evidence of old Osgood-Schlatter’s disease (inflammation of the patellar ligament at the tibial tubercle) with some alteration and ossification at the anterior tibial tubercle by X-ray.  The left knee exam revealed slight tenderness at the tibial tubercle.  There was no edema, effusion, weakness, redness, heat, subluxation, crepitus, abnormal curvature (genu recurvatum), locking pain, or guarding of movement.  There was no instability or pathology by provocative testing (valgus/varus stress [assesses medial/lateral collateral ligaments], Lachman's [assesses anterior cruciate ligament], drawer [assesses anterior/posterior cruciate ligaments], and McMurray [assesses menisci]).    Left (bilateral) knee active ROM was full.  The left (bilateral knees were) knee was additionally limited, after repetitive use, by pain, fatigue, weakness, and lack of endurance with pain having the major functional impact.  The knee function was not additionally limited by incoordination.  Motor function, sensory function, and deep tendon reflexes (DTRs) were normal.  The left knee X-ray was normal.  The diagnosis listed bilateral knee strain.

The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Knee ROM
(Degrees)	PT
~8 Mo. Pre-Sep
(20061229)	MEB
~3 Mo. Pre-Sep
(20070606)	VA C&P
~3 Mo. Post-Sep
(20071205)	
	Left	Right	Left	Right	Left	Right	
Flexion (140 Normal)	105 (102/105/105)	105 (103/105/104)	Full ROM	Full ROM	90	90	
Extension (0 Normal)	(+2) +2/+2/+2
Past neutral	(-5) -2/-3/-4
Lacking neutral	Full ROM	Full ROM	0	0	
Comment	Pain limited motion	Painful motion not cited	Painful motion not cited	
§4.71a Rating	10%	10%	0%	0%	10%	10%	

The Board directed its attention to its rating recommendation for the left knee condition based on the above evidence.  As previously elaborated, the Board must first consider whether the left knee condition remains separately unfitting, having de-coupled it from a combined PEB adjudication.  In analyzing the intrinsic impairment for appropriately coding and rating the left knee condition, the Board is left with a questionable basis for arguing that left knee condition was indeed independently unfitting.  The PEB rated the left knee condition at 0% (5099-5003).  The PEB cited non-specific knee pain, decreased ROM due to pain, no ligamentous laxity, no evidence of arthritic changes on radiographs, and rated for pain IAW USAPDA pain policy.  The VARD rated the left knee condition at 10% with code 5260 (leg, limitation of flexion).  The VARD cited knee sprain, decreased ROM due to pain, painful motion (under DeLuca Court case provisions), tenderness, and no evidence of osteoarthritis on X-rays, instability, edema, effusion, weakness, redness, heat, guarding of movement, subluxation, locking pain, genu recurvatum, or crepitus.  The proximate exams (MEB and C&P) exams showed no limitation of motion to support a minimum rating under the limitation of flexion (5260) or extension (5261) codes.  There was no ankylosis (5256), instability (5257), or dislocated meniscus (5258) to support a minimum rating under the respective codes.  Members debated if application of §4.40 (Functional loss) or §4.59 (Painful motion) justified separate 10% ratings.  While noting that the VA rated each knee separately, the Board considered the PEB option of rating both knee conditions together.  The Board majority concluded that the evidence did not provide sufficient grounds for recommending separate knee disability ratings and that a bilateral rating of 10% coded 5299-5260, is a good analogy to the pathology and disability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board majority recommends a disability rating of 10% for the bilateral knee condition, coded 5299-5260.

Right Knee Condition.  The STR documents a history of bilateral knee pain (L>R).  A right knee X-ray was normal.  In the NARSUM the CI complained of non-specific bilateral knee pain for a long period of time.  The orthopedic surgeon stated the knee pain predated the Army and was service aggravated.  The right knee exam revealed slight tenderness at the tibial tubercle.  There was no edema, effusion, weakness, redness, heat, subluxation, crepitus, abnormal curvature, locking pain, or guarding of movement.  There was no instability or pathology by provocative testing (medial/lateral collateral ligaments, anterior/posterior cruciate ligaments, and menisci).  Right (bilateral) knee active ROM was full.  The right (bilateral knees were) knee was additionally limited, after repetitive use, by pain, fatigue, weakness, and lack of endurance with pain having the major functional impact.  The knee function was not additionally limited by incoordination.  Motor function, sensory function, and DTRs were normal.  The right knee X-ray was normal.  The diagnosis listed bilateral knee strain.

The Board directed its attention to its rating recommendation for the right knee condition based on the above evidence.  As previously elaborated, the Board must first consider whether the right knee condition remains separately unfitting, having de-coupled it from a combined PEB adjudication.  In analyzing the intrinsic impairment for appropriately coding and rating the right knee condition, the Board is left with a questionable basis for arguing that right knee condition was indeed independently unfitting.  The IPEB rated the right knee condition at 0% (5099-5003).  The PEB cited non-specific knee pain, decreased ROM due to pain, no ligamentous laxity, no evidence of arthritic changes on radiographs, and rated for pain IAW USAPDA pain policy.  The VARD rated the right knee condition at 10% with code 5260 (Leg, limitation of flexion).  The VARD cited knee sprain, decreased ROM due to pain, painful motion, tenderness, and no evidence of osteoarthritis on X-rays, instability, edema, effusion, weakness, redness, heat, guarding of movement, subluxation, locking pain, genu recurvatum, or crepitus.  The proximate exams (MEB and C&P) exams showed no limitation of motion to support a minimum rating under the limitation of flexion (5260) or extension (5261) codes.  There was no ankylosis (5256), instability (5257), or dislocated meniscus (5258) to support a minimum rating under the respective codes.  Members debated if application of §4.40 (Functional loss) or §4.59 (Painful motion) justified separate 10% ratings.  While noting that the VA rated each knee separately, the Board considered the PEB option of rating both knee conditions together.  The Board majority concluded that the evidence did not provide sufficient grounds for recommending separate knee disability ratings and that a bilateral rating of 10% coded 5299-5260, is a good analogy to the pathology and disability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board majority recommends a disability rating of 10% for the bilateral knee condition, coded 5299-5260.

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 left shoulder and bilateral knee conditions was operant in this case and these conditions were adjudicated independently of that policy by this Board.  In the matter of the left shoulder condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5201 IAW VASRD §4.71a.  In the matter of the bilateral knee condition, the Board majority recommends a disability rating of 10% coded 5299-5260 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:

CONDITION	VASRD CODE	RATING	
Left Shoulder Pain 	5299-5201	20%	
Bilateral Knee Pain	5299-5260	10%	
RATING (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140110, 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 XXXXXXXXXXXXXXXXXXXXXXXXX, AR20160000447 (PD201400462)

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA