RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01619
BRANCH OF SERVICE:  Coast Guard 	SEPARATION DATE:  20080109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an E6, Electrician's Mate, medically separated for “cartilage, semilunar, removal of, symptomatic,” and “post-traumatic arthritis, right shoulder,” rated 10% and 10% respectively, with a combined disability rating of 20%.  

CI CONTENTION:  Asthma was not included in PEB findings but was awarded by VA with a combined rating of 40%.  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 – 20070829	VARD - 20090211	
Condition	Code	Rating	Condition	Code	
Rating
	Exam	
[Left] Cartilage, Semilunar Removal of, Symptomatic	5259	10%	Left Knee with Torn ACL and Ruptured Meniscus…	5260	10%	20080425	
Right Shoulder, Post-Traumatic Arthritis	5099-5003	10%	Right Shoulder with Torn Labrum...	5299-5201	10%	20080425	
Mild Intermittent Asthma 	Not Unfitting	Asthma	6602	30%	20080627	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Left Knee Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent a left knee anterior cruciate ligament (ACL) reconstruction and medial meniscal repair in October 2004.  Despite surgical intervention, extensive exercises, and pain medication, the CI continued with left knee pain.  He underwent additional left knee surgery in February 2006 for a lateral meniscal repair and debridement of chrondromalacia.  Further treatment following the second surgery did not result in improvement sufficient to allow unrestricted duty.  The commander’s statement indicated that the CI was unfit for sea duty and should be permanently reassigned to a shore unit in a LIMDU status to facilitate completion of his physical therapy (PT) regimen.  He was placed on LIMDU in July 2007 and eventually referred to the MEB.  The MEB NARSUM was performed on 23 October 2007, approximately 3 months prior to separation whereby the CI endorsed chronic left knee pain aggravated by shipboard activities particularly climbing ladders and stairs.  The physical examination (PE) revealed left knee instability, pain, decreased range of motion (ROM) and decreased exercise tolerance.  The VA Compensation and Pension (C&P) examination was performed in April 2008, approximately 4 months after separation whereby the CI reported left knee weakness, stiffness, swelling, give-way, locking, and lack of endurance.  The PE revealed a flexion ROM of 110 degrees (normal 140) with painful motion, kneecap grinding, and global tenderness.  The left knee exam was negative for laxity.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under the 5259 code (cartilage, semilunar, removal of symptomatic).  The VA assigned a 10% rating using code 5260 (leg, limitation of flexion) based on the VA C&P examination citing limited and painful motion.  The persistence of pain after meniscal surgery warranted a 10% rating under code 5259 as adjudicated by the PEB.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  The dominant symptom was clearly pain and the MEB examiner prior to separation reported instability; however, there was no objective evidence of the same upon examination.  There was no indication in the STR that a knee brace was ever worn or required.  Board members agreed that there was no VASRD §4.71a route to a rating higher than the 10% adjudicated by the PEB under any other applicable codes, and no grounds for additional rating based on the presence of instability.  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 left knee condition.  

Right Shoulder.  The CI is right hand dominant.  In December 2006, he underwent surgery to repair a labral tear in his right shoulder.  Further rehabilitative treatment after surgery did not result in improvement sufficient to allow unrestricted duty.  The MEB NARSUM examination indicated that the CI had residual pain and dysfunction about the right shoulder.  There was no specific PE findings reported at that time.  At the 4 month post-separation VA C&P examination the CI reported intermittent right shoulder pain, fatigability, lack of endurance, instability, and give-way.  His PE revealed right shoulder abduction of 150 degrees (normal=180) with painful motion and joint tenderness.  X-rays noted surgical and degenerative changes about the right shoulder.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous code of 5003 (arthritis, degenerative).  The VA assigned a 10% rating under the analogous code of 5201 (arm, limitation of motion) based upon the 4 month post-separation C&P examination, citing painful and limited ROM.  The VASRD §4.71a code 5201 ROM threshold for an impairment rating is “at shoulder level” (90 degrees from the side), and the ROM in this case clearly demonstrated motion above this level.  Although there was no limitation of motion to support a rating under 5201, Board members agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion).  There was no malunion or recurrent dislocation of the humerus to justify a rating under the 5202 code (humerus, other impairment); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under 5203 (clavicle or scapula, impairment).  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 right shoulder condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that asthma was not unfitting.  The asthma was not implicated in the commander’s statement.  The asthma was reviewed and considered by the Board.  The CI was placed on a LIMDU for two orthopedic conditions as well as mild intermittent asthma.  Although his respiratory condition was considered mild, the record noted worsening respiratory symptoms that increased during the day while working as an electrician.  The diagnosis of asthma was definitively established by a methacholine challenge test done on 24 July 2007.  At the time of the challenge test, the CI was taking an inhaled bronchodilator (Albuterol) on an as needed basis for shortness of breath.  On 23 October 2007, the MEB NARSUM examiner noted that the CI had mild intermittent asthma and was under pulmonary care.  The examiner was silent on any current medication regimen.  The VA C&P examination (4 months post-separation) documented that the CI had less and milder asthma attacks and was controlled by medication.  The examiner documented the CI’s current medication as Flovent (inhalational anti-inflammatory) twice daily and Albuterol inhaler as needed.  

The Board majority agreed that the asthma condition was additionally and separately unfitting and then turned their attention to rating the asthma condition.  The VA assigned a 30% rating under the appropriate code 6602 (bronchial asthma) and cited daily use of inhalational anti-inflammatory medication.  The Board considered that although the MEB examination was approximately 3 months prior to separation, the examiner provided minimal documentation of the CI’s asthma condition.  The VA C&P examination, although approximately 4 months after separation, contained a more detailed and thorough evaluation of the CI’s symptoms and treatment regimen.  Therefore, the Board concluded that the VA C&P examination had a higher probative value in this case.  After due deliberation, the Board majority agreed that the preponderance of the evidence with regard to the functional impairment of the contended asthma condition favored its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 6602 and meets the VASRD §4.97 criteria for a 30% rating.  

BOARD FINDINGS:  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended asthma condition, the Board by a majority vote agreed that it was unfitting and recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97.  The minority voter submitted the appended minority opinion.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Knee Pain	5259	10%	
Right Shoulder Arthritis	5099-5003	10%	
Asthma	6602	30%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140407, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion:  

As the minority voter on this case I feel strongly that the two other board members focused predominantly on the medical condition diagnosis of “asthma” and failed to adhere to PDBR guidelines and Board precedence which requires a “preponderance of evidence” when recommending a CI’s condition be changed from a “not unfitting” status to an “unfitting” status, thus making it eligible for a recommended rating.  A complete review of the CI’s personnel and service treatment record (STR) revealed no evidence that his asthma condition in any way hindered his from successfully performing his required duties.  The asthma condition was not implicated in the commander’s statement and it was not profiled nor were there any performance evaluations that demonstrated that the CI could not properly execute his required duties due to asthma.  It is therefore for on this basis that I recommend that the asthma condition remain “not unfitting” and not rated in this case.

Commandant
United States Coast Guard	Mail Stop 7907
2703 Martin Luther King Jr. Ave SE
Washington, DC 20593-7907
Staff Symbol: CG-1
Phone: (202) 475-5000

								   1850

Dear XXXXXXXXXX,
I am the Designated Decision Authority for the Coast Guard on applications submitted to the Department of Defense Physical Disability Board of Review (PDBR).  Under the authority of Title 10, United States Code, section 1554a, I accept the PDBR’s recommendation in your case (Case Number PD-2014-01619) and hereby modify the disability rating previously assigned to reflect a rating of 40% and placement on the Permanent Disability Retirement List. This decision will be effective as of the date of your prior medical separation.  Please allow up to ninety (90) days for the corrections to be made. 

Please note, if you received a lump-sum or other payment of back pay and allowances at separation, your disability retired pay may be reduced to take into account receipt of such lump-sum or other payment.  Please contact the Coast Guard Pay and Personnel Center at (800) 772-8724 for questions relating to retired pay matters. 

Enclosed for your information are a copy of the PDBR’s recommendation and a copy of the record of proceedings. 

A copy of this decision has also been provided to Coast Guard Enlisted Personnel Management Branch, the PDBR, and the Department of Veterans Affairs. 

If you have any further questions, please contact the Coast Guard Personnel Service Center at (703) 872-6628. 
	Sincerely,
2 Enclosures		
	
Copy:	CG Personnel Service Center (EPM-1)
DoD Physical Disability Board of Review
Department of Veterans Affairs