RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00708
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070923

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Petroleum Supply NCO, medically separated for “chronic bilateral knee pain,” with a disability rating of 10%.  

CI CONTENTION:  The CI feels the PEB adjudication was not accurate.  The CI’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20070621	VARD - 20080424	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	10%	Right Knee Patellofemoral Syndrome Status Post Arthroscopy	5257	10%	20071116	
			Left Knee Patellofemoral Syndrome Status Post Arthroscopy	5257	10%		
Bilateral Shoulder Pain	Not Unfitting	Right Shoulder Strain	5201	20%		
		Left Shoulder Strain	5201	20%		
Photophobia		Photophobia	6099-6009	NSC		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  90%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain Condition.  The service treatment record (STR) and the MEB narrative summary (NARSUM) dated 9 January 2007 indicated the CI had swelling of his right knee in July 2002 after a long road march.  An X-ray series of the right knee was normal.  A follow-up MRI in September 2002 demonstrated a posterior horn lateral meniscus tear.   Arthroscopy revealed a lateral meniscus tear and Grade III chondromalacia of the patella (knee cap).  Debridement of the meniscal tear of the right knee was performed.  In October 2004 the CI reported locking pain of the right knee while running.  An orthopedic surgeon noted the CI had been able to deploy.  On examination in late November 2004 there was tenderness at the superior pole of the patella without crepitus and the range-of motion (ROM) was 0 to 135 degrees.  X-rays of the right knee on 29 November 2004 revealed mild tricompartmental osteoarthritis.  Surgery was performed on 12 January 2005, which included smoothing the edge of the medial meniscus, resection of the fold, retropatellar cartilaginous smoothing, an open lateral release, mobilization of the patella, and a synovectomy (removal of a portion of the membrane surrounding the knee joint).  By 15 March 2005 the CI progressed in his postoperative rehabilitation of the diagnosed patellar chondromalacia that he requested and received a modified profile so he could deploy.

The CI, who had a history of left knee surgery in 1994, injured his left knee on 4 July 2005 when he jumped from his truck that was hit by an IED.  A note in March 2006 indicated the CI had a left medial meniscus tear and cartilage damage.  Physical therapy was recommended until surgery was to be performed.  A note in June 2006 indicated the CI had not yet had surgery.  X–rays of both knees revealed bilateral degenerative changes in the patellofemoral compartments, right more significant than the left.  By August 2006 the CI reported worsening pain in the right knee more than the left knee.  An orthopedic surgeon opined that he did not think he could make the CI’s knee better surgically.  In September 2006 the CI requested an evaluation of a meniscal transplant, but it was felt he was not a candidate at that time.  An MRI in November 2006 demonstrated an elongated lateral patellar facet, thickening of the iliotibial band, and scar tissue.  There was no evidence of a meniscal tear or prior meniscal resection.  An MRI of the left knee in November 2006 revealed no evidence of a meniscal tear, cruciate or collateral ligament abnormality, or evidence of a prominent chondral lesion.  There was elongation of the lateral patellar facet and minimal patellar subluxation.  Physical therapy was carried out for several sessions beginning in March 2007.  

The narrative summary (NARSUM) examination dated 9 January 2007 revealed weight-bearing alignment was 40 degrees valgus bilaterally.  The “quadriceps [muscles] were down [atrophied] 20% on the right.”  The ROM measurements were 0 to 130 bilaterally.  There was a trace effusion on the right knee and 10 cc [of fluid] on the left knee.  The CI had 3+ crepitation on extension of the knee on the right, but none on the left.  There was 3+ tenderness on the right lateral facet [of the patella] and 3+ medial facet tenderness bilaterally with right joint line tenderness 3+ medially and 1+ laterally.  Both knees were ligamentously stable.  There were negative Lachman’s and posterior drawer tests (to determine laxity).  The soles of the feet were 3+ tender to palpation bilaterally.  Patellar tilt was 0 on the right and -5 on the left.  MRI’s were within normal limits; and, the NARSUM examiner assessed the CI’s condition as patellofemoral dysfunction.

A permanent L3U3 profile was issued on 8 January 2007 bilateral knee injury and bilateral shoulder tendonitis (see below) with limitations of military functional activities and all physical fitness testing with additional restrictions of no jumping, no marching, no prolonged standing, no climbing, kneeling or squatting.  At the MEB examination dated 2 February 2007, the CI reported knee trouble on DD Form 2807-1.  The MEB physical examiner noted on DD Form 2808 crepitus of the left knee, full ROM bilaterally, tenderness to palpation of the patellar tendon(s), a positive shrug (to determine chondromalacia patella) on the right, negative McMurray’s (to determine a meniscal tear) and Lachman’s (to determine instability) tests, negative joint line tenderness, and no effusions.  The commander’s statement dated 15 March 2007 indicated the CI’s state of health did not provide him the ability to perform the duties required by his MOS or basic soldier skills.  His MOS required heavy lifting and lowering of up to 100 pounds and occasionally carrying 100 pounds up to 500 feet.

At the VA Compensation and Pension (C&P) examination dated 16 November 2007, performed 2 months after separation, the CI reported injuries to the left knee in 1998, to the right knee in 2002, and the left knee in 2004.  On examination the CI had an antalgic gait, bilateral knee tenderness, and laxity.  The ROM measurements of the right knee were flexion 0-110 degrees and extension 90-20 degrees with pain on motion at the end points of motion.  The ROM measurements of the left knee were flexion 0-115 degrees and extension 90-10 degrees with pain on motion at the end points of motion.  There was no evidence of instability or meniscal tears bilaterally.

The CI was seen in follow-up at a remote examination on 13 May 2009, 20 months post-separation, at which time both knees were bothering him, the left a little more than the right.  On examination the CI walked with a normal gait and he had full ROMs bilaterally without effusions or instability.  X-rays revealed well-maintained joint spaces.  Clinically the condition appeared to be an iliotibial band syndrome on the left, which was treated with an anesthetic steroid combination injected beneath the iliotibial band. Pain recurred, but the CI was able to walk 4 or 5 miles without too much pain.  There did not appear to be any suggestion of internal derangement and the diagnosis was thought to be patellofemoral joint arthritis, which was treated with Naprosyn (naproxen, a nonsteroidal anti-inflammatory drug (NSAID)).  
 
The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5099-5003 for chronic bilateral knee pain (constant and slight per the USAPDA).  The VA assigned a 10% rating using code 5257 (Knee impairment-slight-recurrent subluxation or lateral instability) for right knee patellofemoral syndrome status post arthroscopy and a 10% rating using code 5257 for left knee patellofemoral syndrome status post arthroscopy.  

The PEB combined the bilateral knee pain conditions as a single unfitting condition coded 5099-5003 and rated it 10%.  The approach by the PEB commonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the bilateral knee pain conditions was presented together above.

In this case, a bilateral condition was referred to in the profile; however, the commander’s letter did not specifically address the knees, but instead used the phrase “state of health” and also mentioned the CI’s MOS required heavy lifting, which he could not do.  Nevertheless, members agreed that each knee condition is separately unfitting since he sustained trauma to each knee, underwent surgery on each knee, had X-ray evidence of tricompartmental arthritis bilaterally, and had pain bilaterally that impaired the performance of his MOS.  The Board members discussed two options, the first used code 5099-5003 (degenerative arthritis) for each knee based on a noncompensable ROM of flexion for each knee a 10% rating for each knee, while the second used code 5257 for each knee as the VA did; however, but with several tests for instability negative including those of the VA, the Board members could not support the VA’s coding approach.  Additionally, Board members noted VA extension ROM measurements of 90-20 degrees for the right knee and 90-10 degrees for the left knee.  Code 5261 warrants a 30% rating for 20 degrees limitation of extension and a 10% rating for 10 degrees limitation of extension. However, not only did the VA not rate either knee for limitation of extension, but the findings are disparate with ROM measurements of the MEB examination, albeit the MEB examination was done 5 months prior to separation whereas the VA examination was 2 months post-separation.  Members then discussed the probative value of the VA versus the MEB and NARSUM examinations where limitation of extension of either knee was noted.  Therefore, in the matter of the right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.

Contended PEB Conditions-Bilateral Shoulder Tendonitis and Photophobia.  The Board’s main charge is to assess the fairness of the PEB’s determination that bilateral shoulder tendonitis and photophobia were not unfitting.  The bilateral shoulder tendonitis condition was profiled, but the photophobia was not profiled, while the bilateral shoulder tendonitis was implicit in the commander’s statement by noting that the CI had to lift and lower up to 100 pounds and occasionally carry 100 pounds up to 500 feet whereas the photophobia was not mentioned at all.  While the bilateral shoulder tendonitis condition was referred to the PEB as medically unacceptable and was found to be not independently unfitting, the photophobia met medical retention standards and was also found not to be independently unfitting.   

Bilateral Shoulder Tendonitis.  A note dated 26 January 2007 indicated the CI complained of shoulder pain with movement after lifting heavy bags 2 days earlier.  Treatment consisted of Motrin (ibuprofen, an NSAID).  At an examination on 29 January 2007 the CI complained of on and off bilateral shoulder pain with cracking, popping, and catching for 2 years.  X-rays of the right shoulder dated 29 January 2007 were normal, while X-rays of the left shoulder demonstrated a mild degree of acromioclavicular joint degenerative arthritic changes.  Piroxicam (an NSAID) was prescribed.  At a physical therapy evaluation on 30 January 2007 the CI reported shoulder pain while on his side and numb hands when they were overhead.  ROM measurements were flexion 170 degrees and abduction 170 degrees.  Hawkin’s (test for impingement of the rotator cuff) and acromioclavicular spring tests (to determine clavicle movement) were positive and there was tenderness directly over the anterior shoulder bilaterally.  At the MEB physical examination on 2 February 2002 there was tenderness to palpation anteriorly bilaterally.  Physical therapy continued through 20 April 2007 by which time the Hawkin’s test was normal; there was still some pain with the spring test; the ROMs of the shoulders were normal; and there was tenderness over the right biceps tendon proximately.  The NARSUM examiner noted on 27 April 2007 a full ROM of the upper extremities with no evidence of instability, impingement, or rotator cuff pathology; however, there was bilateral tenderness to palpation along the anterior shoulders with normal motor strength. The examiner opined that the impact on duty was severe, although it was not clear whether it was including the shoulders or just the knees.  At the VA examination dated 16 November 2007 the right shoulder ROM measurements were flexion 0-130 degrees, abduction 0-110 degrees, internal rotation 0-70 degrees, and external rotation 0-90 degrees with pain on motion at the end points of motion.  The left shoulder ROMs were flexion 0-110 degrees, abduction 0-90 degrees, internal rotation 50 degrees, and external rotation 0-60 degrees with painful motion at the end points of motion.

Board Approach to PEB Consolidated Rating. The PEB combined the bilateral shoulder pain conditions as a single not unfitting condition.  The approach by the PEB commonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions as a single condition was justified in lieu of separate determinations of fitness.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the bilateral shoulder pain condition was presented together above.  
In this case, the bilateral shoulder pain condition was referred to in the profile and the commander did emphasize the CI must not only lift heavy objects, but had to walk over a distance with the objects; however, the CI could not do the heavy lifting.  Therefore, members agreed that each shoulder separately unfitting.  The Board considered a 10% rating for the right shoulder using code 5099-5003 because of a noncompensable ROM and painful motion; however, for the left shoulder a rating of 10% using code 5099-5003 can be achieved, but using code 5201 with a 20% rating for the left shoulder since abduction was 90 degrees may be more accurate.  A route to a higher rating could not be found in the absence of ankylosis, humerus, clavicle, or scapula impairment.

Photophobia. The CI had photophobia secondary to sun exposure during deployment.  A periodic preventative ophthalmological examination was performed on 29 September 2006 at which time the CI described longstanding photosensitivity and requested a prescription which could be made into sunglasses.  Normal photosensitivity was noted during examination of the pupils and with corrective lenses the CI’s visual acuity was 20/20. The likely causes including accommodative spasm due to uncorrected hyperopia (farsightedness) and the light color of his iris were discussed with the CI.  The examiner opined that sunglasses may be of benefit but that there might still be times such as formation where the CI might not be allowed to wear them.   

After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of bilateral shoulder condition favors its recommendation as an additionally unfitting condition for disability rating.  The right shoulder pain is appropriately coded 5099-5003 and meets the VASRD §4.71a criteria for a 10% rating and the left shoulder pain is appropriately coded 5201 and meets the VASRD §4.71a criteria for a 20% rating.  The aforementioned was viewed and considered by the Board.   There was no performance based evidence from the record that the photophobia condition significantly interfered with satisfactory duty performance.  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 photophobia contended condition; and, so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended right shoulder pain condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended left shoulder pain condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 20%, coded 5201 IAW VASRD §4.71a.  In the matter of the contended photophobia 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.  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:    

CONDITION	VASRD CODE	RATING	
Chronic Right Knee Pain 	5099-5003	10%	
Chronic Left Knee Pain	5099-5003	10%	
Chronic Right Shoulder Pain	5099-5003	10%	
Chronic Left Shoulder Pain	5201	20%	
RATING	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140204, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXX AR20160009862 (PD201400708)

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 (000 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 50% 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
50% 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:

CF:
( ) DoD PDBR
( ) DVA