RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00481
BRANCH OF SERVICE:  Army	BOARD DATE:  20150227
SEPARATION DATE:  20060731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Infantryman) medically separated for chronic left knee pain, chronic left shoulder pain, and bilateral hearing loss.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent U3L3H3 profile and referred for a Medical Evaluation Board (MEB).  The knee, shoulder, and hearing conditions, characterized as left anterior cruciate ligament (ACL) tear with lateral plica, left shoulder pain after acromioclavicular (AC) joint separation and modified Weaver-Dunn reconstruction and moderately severe high frequency sensorineural hearing loss, right ear, mild to moderately severe sloping of left ear were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (sleep apnea) for PEB adjudication.  The Informal PEB adjudicated “chronic left knee pain,” “chronic pain, left shoulder,” and “bilateral hearing loss” as unfitting, rated 20%, 0%, and 0% respectively, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy in its rating for the left shoulder.  The remaining condition (sleep apnea) was determined to be not unfitting.  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 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:

Service IPEB – Dated 20060525	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Knee Pain, Status Post ACL Surgery 	5257	20%	Anterior Cruciate Ligament Deficiency, Left Knee	5261-5010	10%	20060925	
			Left Knee Instability	5257	10%	20060925	
Left Shoulder, Post Surgery	5099-5003	0%	Post Left Shoulder Surgery	5201-5010	10%	20060925	
Bilateral Hearing Loss	6100	0%	Bilateral Hearing Loss	6100	0%	20060925	
			Tinnitus	6260	10%	20060925	
Other x 1 (Not In Scope)	Other x 3	
Combined:  20%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20061109 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Chronic Left Knee Pain Condition.  The service treatment record (STR) detailed that the CI sustained an ACL injury of his left knee prior to entering active duty; although he never had surgery and “just let it heal on its own.”  This was not mentioned on the enlistment physical on 11 October 2000, and the examination was recorded as normal.  The CI presented for care of left knee pain in October 2001, when he developed non-traumatic knee pain, which was aggravated after a road march.  The CI recovered and the STRs fall silent with regard to complaint or care for left knee pain.  The records show the CI injured his shoulder playing football in October 2003.  Contemporaneous treatment records did not reflect any knee complaints at that time.  The CI passed the Army physical fitness test in January 2004 (according to NCO evaluation report).  The STRs remained silent regarding knee complaints until after referral for MEB due to his shoulder condition.  At the MEB examination on 23 January 2006, the CI reported “pain in left knee sometimes.”  At a VA evaluation on 27 January 2006, 6 months prior to separation, the CI stated that he injured his knee in 2001 in an injury during physical training.  He had pain that was precipitated by running and rucking, with flare-ups 5 times a year that lasted 20 minutes.  On examination the CI had flexion 140 degrees (normal), no tenderness on palpation, crepitus (grating) of the patella (kneecap) with motion, negative Lachman and McMurray’s tests, no mention of painful motion, normal muscle strength, and no fatigue or incoordination following repetitive motion.  An X-ray of the left knee performed on 27 January 2006, was normal.  The orthopedic MEB narrative summary (NARSUM) performed on 11 May 2006 noted that the CI had sustained a tear of his left knee ACL prior to coming on active duty, but had done well until the preceding several months when he reported worsening pain in the lateral aspect of his left knee.  On examination, there was no knee effusion, range-of-motion (ROM) from 0 to 135 degrees (normal 0 to 140), and normal strength.  The knee was stable to varus and valgus stress (side to side), had a 2B Lachman with a positive pivot shift test (moderate anterior laxity), negative McMurray testing (for cartilage damage), negative patellar grind (for patellar, or kneecap, abnormality), and a palpable click with flexion extension over the lateral femoral condyle consistent with plica (thickening of the ACL with lateral plica was medically unacceptable.  At the VA Compensation and Pension (C&P) examination on 25 September 2006, 2 months after separation, the CI reported pain and instability of the left knee, with no swelling or locking.  On examination there was a positive Lachman test and positive anterior drawer test (anterior laxity of the ACL), laxity of the medial and lateral collateral ligaments, negative McMurray’s test, and normal gait.  ROM was 0 to 140 degrees (normal) without pain.  The examiner opined that there would be an additional loss of motion in the left knee of 15 to 20 degrees due to pain with repetitive use and flare-ups.  An X-ray showed possible small effusion with no other abnormalities.  The diagnosis was chronic left ACL deficiency and instability.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition with code 5257 (Knee, other impairment of; which incorporates recurrent subluxation or lateral instability) at 20% (moderate).  The VA rated the condition with codes 5261-5010 (Leg, limitation of extension of) at 10%, citing pain on motion, and 5257 at 10%, citing slight recurrent subluxation or lateral instability of the knee.  The Board initially reviewed the CI’s complaint of knee instability and evidence of instability on examination.  The CI’s original complaint in 2001 was for knee pain, not instability.  The VA evaluation performed on 27 January 2006 noted left knee pain which was worse with activity, and no additional limitations (no mention of instability).  The MEB NARSUM detailed that the CI did well until he had worsening pain in the knee in the last several months, without specific mention of instability or another injury.  Although the VA C&P exam stated that, “His left knee is unstable,” the main complaint and text of the note dealt with knee pain.  The MEB NARSUM and VA exams both documented laxity of the joint, but descriptions of the CI’s history and activity reflected only modest impairment in response to the deficiency.  The Board concluded that this disability was best characterized as slight impairment due to recurrent subluxation.  The Board next considered whether a separate rating was supported for limitation of motion, painful motion, or functional loss not due to instability.  The VA evaluation demonstrated a normal gait with full ROM of the knee with crepitus but no painful motion and no change in motion with repetition.  The MEB NARSUM examination demonstrated nearly normal flexion (135 degrees) and full extension without painful motion.  Therefore, there was no limitation of motion which attained a minimum rating for limitation of flexion or extension at these examinations, and there was no painful motion on examination to support a 10% rating based on painful motion (§4.59).  The Board then considered whether there was sufficient evidence to support a 10% rating for functional loss (§4.40, §4.45).  The MEB examination in January 2006 recorded a history of left knee pain “sometimes,” and the VA examination in January 2006 recorded a history of brief episodes lasting 20 minutes of knee pain occurring 5 times per year.  The MEB NARSUM performed in May 2006 recorded a complaint of lateral knee pain for several months with a palpable click consistent with plica.  At the post-separation VA C&P examination in September 2006, the examiner opined (“expected”) that there would be an additional loss of motion due to pain with repetitive use and flare-ups based on the history related by the CI.  However, the Board noted that the STRs and the initial MEB and VA examinations in January 2006 did not corroborate the subjective symptoms recorded in the subsequent examinations.  Further, the infrequent episodes of discomfort were not separable from symptoms related to the instability due to the ACL and two ratings based on the same impairment is prohibited (§4.14).  Therefore the Board concluded there was not sufficient evidence to support a separate rating for functional loss from the rating for instability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% under code 5257 for the left knee instability condition (with no additional, separate rating for loss of motion, painful motion, or functional loss).

Chronic Left Shoulder Pain Condition.  The NARSUM noted that the CI initially injured his left (non-dominant) shoulder in October 2003 when he landed on top of his shoulder playing football and sustained an AC joint separation (where the collar bone attaches to the shoulder).  He completed his deployment, but his shoulder problems worsened, particularly with rucksack wear.  In December 2004, he underwent surgery to repair the AC joint separation followed by screw removal in February 2005.  Subsequently, he had continued difficulties with his left shoulder and was unable to return to full activities despite rest, activity modification, physical therapy, and anti-inflammatory medications.  At the MEB exam on 23 January 2006, 6 months prior to separation, the CI reported that his left arm went numb and that he could not use the arm 100%.  At a VA evaluation on 27 January 2006 the CI complained of pain and tingling that was worse with lifting, excessive motion, and cold weather.  Examination demonstrated flexion of 160 degrees (normal 180), abduction 180 degrees (normal), normal muscle strength, no tenderness to palpation, no additional symptoms following repetitive motion, and no annotation of painful motion.  At several orthopedic appointments up to 28 March 2006, 4 months prior to separation, the CI complained that he could not do push-ups/pull-ups or wear individual body armor (IBA).  At the NARSUM exam on 11 May 2006 (2 months prior to separation), the CI had normal strength of both upper extremities, tenderness in the anterior shoulder (AC space), and mildly positive Hawkins test (suggesting shoulder impingement of the affected rotator cuff muscles).  At the VA C&P exam on 25 September 2006, 2 months after separation, the CI reported continual pain of the shoulder that varied from 2-7/10.  Physical examination showed normal muscle strength and abduction 180 degrees (normal) without pain on motion.  The CI complained of instability of the shoulder after seven push-ups, but the examiner found no evidence of instability on examination and thought that represented fatigue with repetitive use.  The examiner opined there would be an additional loss of motion of approximately 25-30 degrees due to fatigue on repetitive use and with flare-ups (of pain).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated this condition to analogous code 5003 (Arthritis, degenerative) at 0% with application of the USAPDA pain policy.  The VA rated the condition with code 5201-5010 (Limitation of motion of arm – Arthritis, due to trauma) at 10%, citing pain on motion.  The VA evaluation on 27 January 2006 noted decreased flexion on ROM but detailed no pain with motion and no additional changes following repetitive motion, which supported a 0% rating.  The C&P examination on 25 September 2006 noted full ROM (abduction) but specified fatigue with repetition and opined additional loss of motion with repetitive use or flare-ups, supporting a 10% rating.  Several orthopedic appointments prior to separation (up to 28 March 2006) noted that the CI could not do pushups/pullups or wear IBA, which could signify fatigue with repetitive use, and thus support the conclusions of the C&P examination of additional loss of motion/functional loss with repetitive use.  The Board concluded that evidence of the record supported a 10% rating based on functional loss (§4.40).  There was no clinical evidence of ankylosis, bone damage, or nonunion/malunion of any component of the shoulder girdle; and, no history of recurrent shoulder dislocation; thus, no shoulder joint code under VASRD §4.71a would yield a rating greater than 10%.  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 (5299-5201).

Bilateral Hearing Loss Condition.  The NARSUM noted that the CI had a hearing profile (H3) which documented moderately severe high frequency sensorineural hearing loss in the right ear and mild to moderately severe sloping sensorineural hearing loss of the left ear.  The profile specified no exposure to noise in excess of 85 decibels or weapon firing without the use of properly fitted hearing protection, and annual testing.  The audiology test results are summarized in the table below.  At the VA C&P exam on 29 September 2006, 2 months after separation, the CI complained of difficulty hearing and understanding speech.  He believed that he lost most of his hearing when he was exposed to gunfire and truck noise while serving in the military infantry.  He reported that he wore hearing protection 50% of the time during his military service.  He also reported experiencing constant tinnitus bilaterally since his return from Iraq, rating it at #3-4 for loudness and at #6 for annoyance on a scale of 0/10.  The audiometric 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.

HEARING	EXAM	MEB  ~5 Mo. Pre Sep
(20060202)  	VA C&P ~2 Mo. After Sep
(20060929)  	
LEFT EAR	Average Hearing Loss	43.75 dB	55 dB	
	Speech Discrimination	90 %	96 %	
	Table VI / VIa	II / II	I / III	
 RIGHT EAR	Average Hearing  Loss	42.5 dB	47.5 dB	
	Speech Discrimination 	90 %	98 %	
	Table VI / VIa	II / II	I / II	
§4.85 RATING 	Table VII	0 %	0 %	
(Average hearing loss is the sum of pure tone thresholds at 1000, 2000, 3000, and 4000 Hz divided by four)

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated this condition with code 6100 at 0%.  The VASRD §4.85 and §4.86 rating schedules for hearing impairment are completely objective and derived from audiometric testing.  They are based on average puretone threshold across the hearing ranges, and accommodate for measured speech discrimination.  The results of the audiometric evidence in this case (above) yield unequivocal 0% ratings for both sets of data.  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 hearing loss 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 USAPDA pain policy for rating the shoulder was operant in this case and the case was adjudicated independently of that policy by the Board.  In the matter of the left knee condition, the Board by a majority vote recommends a disability rating of 10%, coded 5257 IAW VASRD §4.71a.  The single voter for dissent did not elect to submit a minority opinion.  In the matter of the left shoulder condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5201 IAW VASRD §4.71a.  In the matter of the hearing loss condition and IAW VASRD §4.85, the Board unanimously recommends no change in the PEB adjudication.  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 Left Knee Pain With Instability Due To ACL Insufficiency	5257	10%	
Chronic Pain, Left Shoulder Post Surgery	5299-5201	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140109, 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 XXXXXXXXXXXXXXX, AR20150013220 (PD201400481)

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 description without modification of the combined rating or 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						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA