RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01765
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040730

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Indirect Fire Infantryman, medically separated for “bilateral knee pain” with a disability rating of 10%.  

CI CONTENTION:  The CI submitted counsel documents.  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 conditions at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  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 - 20040512	VARD - 20050401	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Patellar Tendonitis	5024	10%	Left Knee Status/Post Arthroscopy for Torn Medial Meniscus and Partial Synovectomy with Patellar	5024-5019	10%	20041201	
			Right Knee Patellar Tendonitis and Tibial Tubercle Tendonitis	5024-5019	10%		
Left Shoulder Impingement Syndrome	Not Unfitting	Left Shoulder Acromioclavicular Sprain	5299-5201	0%		
	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Bilateral Patellar Tendonitis.  The PEB combined the bilateral patellar tendonitis condition as a single unfitting condition coded analogously to 5024 (tenosynovitis) and rated 10%.  The 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’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 bilateral patellar tendonitis condition is presented separately below for clarity with recommendations following regarding separate unfitness, and separate rating if indicated.  

Left Knee Patellar Tendinitis.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s left knee patellar condition began in June 2002.  At that time, his unit was doing 4-mile runs twice a day.  He was also doing extra ruck marching on his own to train for Special Forces.  The CI was profiled and treated with non-steroidal anti-inflammatory medication along with physical therapy.  In March 2003, magnetic resonance imaging (MRI) of the left knee showed a small joint effusion and patellar tendinitis/tendinosis changes in the proximal patellar tendon and was otherwise unremarkable.  

The 16 September 2003, the permanent profile listed left shoulder pain and bilateral knee pain.  The 22 March 2004 commander’s statement, 4 months before separation, mentioned the left shoulder and the knees and indicated that the CI’s permanent profile prevented him from conducting the normal activities and duties of an infantryman.  

The 9 October 2003 MEB NARSUM examination, 10 months prior to separation, noted complaint of knee pain after sitting for five minutes.  The CI detailed he could not keep his knees bent at 90 degrees for more than 20 minutes without standing or straightening them out and reported significant pain with running, walking more than a quarter mile, and kneeling.  Physical examination noted full range of motion (ROM) of the knees with pain.  Physical therapy evaluation for the MEB performed on 7 January 2004, 7 months before separation, noted full ROM, with pain.  

On 1 October 2004, 2 months after separation, the CI underwent left knee arthroscopy with partial medical meniscectomy and anterior synovectomy.  On 30 November 2004 bilateral knee radiographic (X-ray) studies showed no bony abnormalities, well preserved joint spaces, and no evidence of osteoarthritis present.  

At the 1 December 2004 VA Compensation and Pension (C&P) joints evaluation, 4 months after separation, the CI reported bilateral knee pain, greater on the left than the right.  He denied clicking, popping, shifting, or swelling, but noted some locking of the knee.  The CI was still rehabilitating the left knee from the October 2004 arthroscopy at the time of the C&P examination.  He was not using a cane.  Physical examination showed a normal gait.  There were well healed arthroscopic scars with mild effusion (1+) and tenderness over the inferior edge of the patella and over the tibial tubercle.  Left knee ROM showed flexion 130 degrees (normal 140) and a normal extension of 0 degrees.  There was “mild” evidence of additional limitation of joint function due to pain after repetition.  There was no evidence of instability or meniscal pathology.  

Right Knee Patellar Tendinitis.  According to the STR and the MEB NARSUM, the CI’s right knee patellar condition also began in June 2002 due to four-mile runs twice a day and extra ruck marching as noted above.  The CI was profiled and treated with non-steroidal anti-inflammatory medication along with physical therapy.  The 16 September 2003 permanent profile listed bilateral knee pain as noted above.

The 9 October 2003 MEB NARSUM examination, 10 months prior to separation, noted complaint of knee pain after sitting for five minutes.  The history and physical examination of the right knee was reported identically as that of the left knee above, including full ROM with painful motion.  Physical therapy evaluation for the MEB performed on 7 January 2004, 7 months before separation, noted full ROM.  As noted above, the 22 March 2004 commander’s statement, 4 months before separation, implicated the knees as impairing the CI’s ability to successfully perform the normal duties of his military occupational specialty (MOS).  

The C&P Joints evaluation noted the CI was scheduled for arthroscopic surgery of the right knee 27 December 2004.  He was not using a cane.  Physical examination showed mild (1+) effusion and no evidence of instability or meniscal pathology.  Right knee range of motion showed flexion 130 degrees.  There was “mild” evidence of additional limitation of joint function due to pain after repetition.  On 27 December 2004, 5 months after separation, the CI underwent right knee arthroscopy and the operative report noted partial medial meniscectomy and anterior synovectomy.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 10%, coded 5024 (tenosynovitis) citing full range of motion with pain, no evidence of ligamentous laxity.  The VA rated the right and left knee condition 10% each, coded 5024-5019, (analogous to bursitis), citing painful or limited motion of a major joint or group of minor joints.

The panel first considered if both the right and left knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The bilateral knee pain condition was permanently profiled; the commander’s statement implicated the knees; and the NARSUM indicated the CI fell below retention standards due to the bilateral knee condition.  There was no information in the commander’s statement which helped to discriminate between the right and left knee contributions to the CI’s impairment.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that each of the bundled knee conditions was reasonably considered separately unfitting.  Since the physical findings of the left and right knees at the MEB NARSUM and VA examinations were nearly identical the panel considered its rating recommendation for the unfitting left knee and right knee conditions together.

There was no limitation of motion of either knee which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) under 5260 noted at the MEB NARSUM and VA examinations.  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), to support a rating for either knee under the respective codes.  There was no fracture, non-union, or malunion of either femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  

The panel carefully considered the option of rating both knees together analogously under 5003 (degenerative arthritis) versus each knee separately.  However, panel members concluded that the evidence did provide sufficient grounds for recommending separate disability ratings of 10% for each knee for painful motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right knee condition and 10% for the left knee condition, each coded 5299- 5260.  

Contended PEB Condition:  Left Shoulder Impingement Syndrome.  The panel’s main charge is to assess the fairness of the PEB’s determination that the left shoulder condition was not unfitting.  A 4 June 2003 visit with a physician’s assistant indicated the CI had been sent by his chain of command for a deployment evaluation.  The shoulder (which was referred to as the right in the examination) was noted to have negative findings on physical and the physician assistant’s recommendation was that the soldier should deploy.  He was then referred to the orthopedic specialist for final evaluation.  The orthopedic surgeon gave the CI a shoulder injection for complaint of left shoulder pain and the wanted to see the CI back to see the outcome.  

At the 25 March 2004 MEB NARSUM examination, the examiner indicated that the left shoulder profile was U1 and noted push-ups caused shoulder pain and the CI was unable to put his arm behind his head to do sit-ups.  

At the follow-up visit on 10 September 2004, the CI reported no benefit from the injection.  There were two permanent profiles in record dated 18 August 2003 - one completed by the physician’s assistant was U1L3 and one completed by the orthopedic specialist was a temporary U3L3.  There was a final permanent profile dated 16 September 2003 which was U3L3 and indicated no overhead lifting, no lifting greater than 20 pounds, and push-ups as tolerated.  

The commander’s statement referenced the temporary profile dated 18 August 2003 written by the orthopedic specialist (though mistook the date as August 2004).  In the visit note that day the orthopedic surgeon indicated the CI was being referred for MEB predominately for the bilateral knee conditions and that due to the knees, the CI was unable to perform the duties of his MOS.  The left shoulder condition was added to the permanent profile approximately a month later after the CI was referred to the MEB for the bilateral knee conditions.

At the C&P joints evaluation the CI reported the onset of shoulder pain in 2002 and “that he had significant pain for approximately four months but that has subsided at the present time.”  The CI denied constant pain.  He does have episodic pain approximately once a day which lasts about an hour associated with overhead work.  Physical examination showed normal abduction of 180 degrees and mild tenderness.  The examiner noted that X-rays in November 2004 were normal.  A diagnosis was given of right shoulder acromioclavicular sprain and the VA rated the condition 0% citing a non-compensable examination.

The panel majority concluded that there was not a preponderance of evidence in record at the time the CI was referred into the disability evaluation system that the shoulder was unfitting to overcome the PEB’s fitness adjudication.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended left shoulder condition and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the right and left knee conditions, the panel unanimously recommends a disability rating as follows: an unfitting left knee condition and an unfitting right knee condition, each rated 10%, both coded 5299-5260 IAW VASRD §4.71a.  In the matter of the contended left shoulder condition, the panel majority recommends no change from the PEB determination as not unfitting.  The single voter for dissent submitted the appended minority opinion.

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Knee Patellar Tendinitis Condition	5299-5260	10%	
Right Knee Patellar Tendinitis Condition	5299-5260	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161114, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

Minority Opinion, Left Shoulder:  According to the STR and the MEB NARSUM the left shoulder was injured in May 2002 as a result of a lifting accident.  The CI was given temporary profiles in March and April 2003.  An MR arthrogram 23 April 2003 showed degenerative change of the shoulder cartilage, without a rotator cuff tear.  The CI was evaluated by orthopedics 20 May 2003 and diagnosed with impingement syndrome and possible tear of the shoulder labrum (cartilaginous rim of the joint).  The CI participated in physical therapy.  On 2 June 2003 a physical therapy visit noted the CI had restrictions of no push-ups, pull-ups, no lifting weight over 20 pounds and limited overhead motion.  Two days later the CI was evaluated for deployment as noted above and it was recommended by a PA that the CI should deploy due to negative findings on the examination, however, the examiner indicated the exam was of the right shoulder, rather than the left.  This may have been a simple error, but it is not clear.  The CI was referred by the PA for orthopedic evaluation and at that time he was given a left shoulder injection and was placed on a temporary U3L3 profile for bilateral knee pain and left shoulder pain.  At the 10 September 2003 follow-up visit no benefit was reported and the CI was given a permanent U3L3 profile.  

The commander’s statement implicated the left shoulder condition and referenced the temporary profile written by the orthopedic specialist.  The 18 August 2003 temporary profile indicated the CI could not do upper body weight training, could not wear a backpack and had a lifting restriction, though no pound limitation was notated.  The 16 September 2003 permanent profile listed physical limitations of no overhead lifting, lift up to 20 pounds, no backpack, no upper body weight training and push-ups to tolerance.  The minority voter concluded that the left shoulder condition was given temporary profiles, permanently profiled, implicated by the commander’s statement and judged to fail retention standards and there was performance-based evidence that the shoulder condition significantly interfered with satisfactory duty performance prior to the CI’s referral for the MEB.  The delay in addressing the shoulder as a MEB condition appeared to be simply to allow time to see how much benefit the CI would derive from the shoulder injection in August 2003 and was quickly resolved at the September 2003 follow-up visit.  The minority vote is that the preponderance of the evidence with regard to the functional impairment of the left shoulder condition favors its recommendation as an additionally unfitting condition for disability rating that it meets the VASRD §4.71a criteria for a 10% rating at the time of separation due degenerative shoulder findings on MRI and painful motion noted at the MEB NARSUM examination.  The panel vote on the bilateral knee condition was unanimous for recommendation of each knee as unfitting, each rated 10% as noted above.  Therefore, the minority vote is for retirement with a combined rating of 30% in accordance with VASRD 4.71a rating criteria.  

AR20180000019, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and by majority vote, recommended modification of your disability rating to 20%.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion.  I reject the Board’s recommendation and I accept the Board’s minority opinion to recharacterize 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, minority opinion and record of proceedings for your information.

	The recharacterization 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) 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the counsel you listed on your application.

Sincerely,

Enclosure