RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX  	CASE:  pd-2016-00570
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20041002

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army National Guard, E6, AH-64 Attack Helicopter Repairer, medically separated for “chronic pain right shoulder and right knee” with a disability of 10%.  

CI CONTENTION:  “Review of military records will tell why.  Medically retired with same condition 4/14/16.  Rated 30% in 2004.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20040816	VARD - 20041227	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Shoulder and Right Knee	5099-5003	10%	Residuals, Right Shoulder Injury with Acromioclavicular Joint Separation with Impingement Syndrome S/P Distal Clavicle Excision and Arthroscopic Acromioplasty and Debridement	5299-5202	20%	20041124	
			Patella Dislocation, Right, S/P Arthroscopic Surgery with Patellofemoral Pain Syndrome	5257	10%	20041124	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Pain Right Shoulder.  The PEB combined the right shoulder pain and the right knee pain conditions as a single unfitting condition coded analogously 5099-5003 (degenerative arthritis) and rated 10% with application of the US Army Physical Disability Agency pain policy and AR 635-40 B24.f.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The panel noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’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 panel 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 panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the right shoulder and the right knee conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the right-hand dominant CI injured his right shoulder in July 2003 while deployed to Iraq.  According to the CI he injured his shoulder diving for cover while working on a helicopter.  The CI was evaluated and treated in Theater and was medically evacuated back to Fort Drum, NY where he underwent an open right distal clavicle excision on 11 November 2003.  An MEB/NARSUM was started in March 2004.  However, the 6 May 2004 right shoulder magnetic resonance imaging (MRI) showed chronic tendinopathy vs. partial tear of the supraspinatus tendon as well as severe complex tear of the anterior labrum and widening of the acromioclavicular (AC) joint.  Due to increased right shoulder symptoms, the MEB was delayed and the CI then underwent a second right shoulder surgery (arthroscopy) on 24 May 2004 for a failed Munford procedure, inadequate distal clavicle excision and a superior labral tear.  

The initial 18 March 2004 MEB NARSUM evaluation, 6 months prior to separation was prior to the second shoulder surgery.  At the 9 July 2004 orthopedic follow-up visit, 3 months before separation (6 weeks after the CI’s second surgery), the CI complained of significant right shoulder pain.  The examiner noted that the CI was “able to demonstrate 170 degrees of forward flexion abduction motion” with pain.  There was some mild scapular motion dyskinesia, significant weakness, and tenderness.  The orthopedic surgeon’s assessment was “question scar tissue subacromial adhesion problems as well as mild scapular motion dyskinesia.”  

At the 26 July 2004 NARSUM Addendum, 2 months before separation (2 months after surgery), the examiner noted that “the surgery did not have any significant effect on the pain.”  The right shoulder range of motion (ROM) was painful with limitations of 110 degrees flexion (normal 180) and abduction of 130 degrees (normal 180).  The examiner indicated that there was no other significant change from his pre-surgery examination (18 March 2004) which showed tenderness over the right AC joint, scapular dyskinesia, and no motor or sensory abnormalities.  

At the 24 November 2004 VA Compensation and Pension (C&P) examination, performed 2 months after separation (6 months after surgery), the CI reported right shoulder pain with inability to lift more than 10-15 pounds, recent subluxation, and “in particular, he is bothered by activities at shoulder level or above.”  Physical examination showed pain-limited ROM of 140 degrees of flexion and abduction (normal 180).  There was marked pain during ROM testing with associated catching and some popping in the AC joint.  There was tenderness to palpation over the AC joint, as well as the anterior and lateral shoulder.  There was a positive Hawkins’ impingement sign and a mildly positive supraspinatus stress test.  There was “perhaps slight weakness in the shoulder on strength testing associated with pain.”  The examiner stated “I am unable to demonstrate any definite instability at this time, although it is noted that (the CI) is demonstrating a great deal of guarding secondary to pain.”  The examiner's impression was residuals of right shoulder injury with acromioclavicular joint separation; postoperative distal clavicle excision; impingement syndrome; and, status post distal clavicle excision and arthroscopic acromioplasty and debridement.  VA records documented that on 9 March 2005, 5 months after separation, the CI underwent a right shoulder arthroscopic SLAP repair as well as a right shoulder limited debridement and rotator cuff interval closure.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5099-5003code (degenerative arthritis), citing the US Army Physical Disability Agency Pain Policy for the bundled shoulder and knee conditions (see above).  The VA assigned a 20% rating using an analogous 5299-5202 code (humerus, other impairment), for “infrequent episodes of dislocation of the scapulohumeral joint with guarding of arm movements only at the shoulder level.”  The panel first considered if the right shoulder condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The right shoulder condition was profiled and noted to fail retention standards.  The commander’s statement was prior to the CI’s second surgery.  Panel members agreed the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  The orthopedic evaluation and NARSUM addendum were very close (6 weeks and 2 months) to the date of the CI’s surgery while rehabilitation, healing and scarring were likely still occurring.  The panel therefore adjudged that the C&P examination (6 months after surgery) had the highest probative value for rating at separation.  Panel members agreed that a 20% rating analogous to the 5203 code (clavicle or scapula, impairment of) was justified for removal of the distal clavicle equivalent to nonunion of the clavicle or scapula with infrequent episodes of dislocation of the scapulohumeral joint with guarding of arm movements only at the shoulder level.  The C&P examiner’s finding of significant pain and guarding with motions above the shoulder level warranted an analogous 20% rating and was supported by the orthopedics’ finding of scapular dyskinesia, and the physical therapy’s finding of pain-limited ROM approximating at shoulder level.  There was no ROM limitation below the shoulder level to justify a higher rating under the 5201 code (Arm, limitation of motion of).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a separate unfitting finding for the right shoulder condition and a disability rating of 20%, coded 5299-5203.  

Chronic Pain, Right Knee.  According to the STR and MEB NARSUM, the CI’s right knee condition began in April 1989 while playing softball while on active duty.  He was subsequently processed through the disability evaluation system and separated for his right knee condition in March 1990.  The CI’s condition improved and he was able to re-enlist in the Army National Guard in April 1998 with no duty or physical fitness limitations.  He was deployed to Iraq and his right knee pain got exacerbated following an incident where he had to dive for cover while working on a helicopter in July 2003.  The CI reported that he had undergone arthroscopic surgery on his right knee (in 1989 - no operative note in evidence).  X-ray on 6 February 2004, for history of patellar dislocation with increased knee pain, showed degenerative changes with spurring and medial compartment joint space loss on standing.  An MRI on 6 May 2004 showed degenerative changes at the margin of the patellofemoral joint, and myxoid degenerative changes of the medial meniscus and a small amount of fluid within the suprapatellar region.  

The initial 18 March 2004 MEB NARSUM, 6 months prior to separation, noted that the knee was not swollen and there was no tenderness.  There was no pain or swelling.  The CI had flexion of 125 degrees (normal 140) and extension to 0 degrees (normal 0).  At the 26 July 2004 NARSUM Addendum, 2 months before separation, the examiner noted the abnormal knee MRI (above) without providing a knee examination.  

At the 24 November 2004 VA Compensation and Pension (C&P) evaluation, performed 2 months after separation, the CI reported that the knee was doing “okay” and that he had basically learned to adapt to his knee condition over the years.  He stated that he had prior knee arthroscopic surgery and was bothered most by extended periods of weightbearing or walking on soft sandy surfaces.  He also stated that he had flare ups with squatting.  Examination showed that he had full ROM.  There was tenderness to the patellofemoral joint, pain with manual lateral subluxation of the patella, and a positive patellar grinding test.  There was no heat, redness or swelling that there was no pain on ROM measurement.  There was no additional limitation of motion upon repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB combined the right knee condition with the right shoulder condition rated 10%, coded analogously as 5099-5003 (degenerative arthritis), citing the U.S. Army Physical Disability Agency (USAPDA) pain policy.  The VA rated the right knee condition 10%, coded 5257 (knee, other impairment of:  recurrent subluxation or lateral instability), simply stating the requirements of the VASRD for a 10% rating.  The panel first considered if the right knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The right knee condition was noted to separately fail retention standards by the MEB.  The right knee condition was profiled as L4 with significant restrictions of no physical fitness test and the only aerobic conditioning exercises permitted of walk at own pace and distance, however, the commander’s statement indicated that the CI had no restrictions that hindered job performance.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled right knee condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting right knee condition at the time of separation.  There was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) to support a rating under that code.  There was no fracture, nonunion or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  However, there was degeneration of the joint and meniscus as well as instability of the patellofemoral joint with objective evidence of painful motion of the patella supporting a 10% rating (based on §4.59, §4.40 and §4.45).  The 5259 code (cartilage, semilunar, removal of, symptomatic) was also applicable in this case, and provided an alternate route to a 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a separate finding of unfit for the right knee condition, and a disability rating of 10% for the right knee condition, coded 5259-5003.  

BOARD FINDINGS:  In the matter of the bundled right shoulder and right knee condition, the panel unanimously recommends that each joint be separately adjudicated as follows:  an unfitting right shoulder condition coded 5299-5203 and rated 20%, and an unfitting right knee condition, coded 5259-5003 and rated 10%, both IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel 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	
Right Shoulder Pain	5299-5203	20%	
Right Knee Pain	5259-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170018893 , XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure