RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-00518
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20080120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Military Police, medically separated for “left knee and left shoulder pain” with a disability rating of 10%.

CI CONTENTION:  Review all conditions.  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB – 20071120	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee and Shoulder Pain	5099-5003	10%	No VA Examination in Evidence Proximate to Separation	
Sensorineural Hearing Loss	Not Unfitting		
PTSD	Not Unfitting		
COMBINED RATING:  10%	COMBINED RATING OF ALL CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Left Knee and Left Shoulder Pain.  The PEB combined the left knee patella dislocation, left medial meniscal tear, and left shoulder conditions under a single disability rating, coded analogously to 5003 and rated 10% with application of the US Army Physical Disability Agency pain policy.  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 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 left knee and left shoulder conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

Left Knee.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI was running and tripped in a pothole, dislocating his patella in April 2003.  An MRI in June 2003 revealed a medial meniscus tear and the CI underwent a partial medial meniscectomy in July 2003.  He recovered and returned to full duty, but in January 2004 the patella began dislocating again.  He returned to surgery in February 2004 for a partial lateral meniscectomy and a lateral release with medial capsular retinaculum repair (procedures for the recurrent patellar subluxations).  For a period of time after the second operation he had no patellar subluxations but after a deployment to Afghanistan the subluxations recurred.  

The 20 August 2007 orthopedic appointment noted active range of motion (ROM) of 130 degrees flexion (normal 140) with tenderness over the medial patella and no effusion noted.  There was normal patella tracking and alignment.  There was pain/apprehension with attempted lateral subluxation and 70% subluxation with the knee extended.  No further surgical intervention was recommended.  An MRI of the left knee on 2 October 2007 revealed abnormality in the posterior horn of the medial meniscus consistent with a small tear and post-surgical changes.  A “very small joint effusion” was also noted.  

The 6 November 2007 MEB NARSUM examination, 2 months prior to separation, noted complaints of constant knee pain, but the pain was tolerable and he was not taking any medications.  However, activity such as prolonged standing, especially with combat gear, increased the pain.  Physical examination showed crepitus with palpation of the patella.  There was no instability.  ROM was flexion to 145 degrees after repetition and extension of 0 degrees (normal) with pain on flexion.  There was no mention of effusion.  The examiner opined the dislocations would continue with activity and may eventually require additional surgery.  There was no VA examination in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the left knee condition with the left shoulder condition and applied a single 10% rating, coded 5099-5003(analogous to arthritis, degenerative).  In this case the left knee was considered to fail retention standards, was implicated by the NARSUM, and was profiled.  The commander’s statement noted the CI’s physical condition prevented him from performing his duties as an MP.  Panel members agreed the evidence reasonably justified that the functional limitations of the left knee contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.

There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  The persistence of pain after meniscal surgery warranted a 10% rating under the 5259 code (cartilage, semilunar, removal of, symptomatic).  Although there was a very small effusion noted on an MRI, there was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions found on examinations proximate to separation (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).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a separate disability rating of 10% for the left knee condition, coded 5259.  
Left (Dominant) Shoulder.  According to the STR and MEB NARSUM, the CI began experiencing left shoulder problems in March 2006.  No specific injury or trauma was noted.  An MRI on 2 October 2007 revealed a small area of irregularity along the articular surface of the distal supraspinatus tendon posteriorly.  There was no surgical indication.  During the 6 November 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 2 months prior to separation, the CI reported left shoulder pain.  Physical examination showed the shoulder was mildly tender to movement and abduction had marginally decreased strength of 4-5/5 on abduction.  

The 6 November 2007 MEB NARSUM examination, 2 months prior to separation, noted complaints of his shoulder catching at times and his abduction motion was restricted.  Physical examination showed full ROM with pain when abducting the left shoulder.  There was tenderness at the acromion process.  There was slightly reduced strength in abduction due to pain.  ROM after repetition was flexion of 180 degrees (normal) and abduction of 180 degrees (normal) with pain on abduction.  There was no VA examination in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the left shoulder condition with the left knee condition and applied a single 10% rating, coded 5099-5003.  In this case the left shoulder was considered to fail retention standards and was profiled U3.  However, the commander’s statement did not specifically implicated the left shoulder.  The profile did prohibit the ability to carry and fire an individual weapon which would interfere with MP duties.  Panel members agreed the evidence reasonably justified that the functional limitations of the left shoulder contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  

The VASRD §4.71a threshold for rating for ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion well above this level.  Although there was no limitation of motion to support a rating under the 5201 code, panel 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 of); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under the 5203 code (clavicle or scapula, impairment of).  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 left shoulder condition, coded 5099-5003.  

Contended PEB Conditions:  Sensorineural Hearing Loss and PTSD.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The CI was evaluated by ENT and given an H2 profile.  The 26 September 2007 mental health MEB addendum specified the CI met retention standards for PTSD and was profiled S1.  Neither condition was implicated in the commander’s statement nor judged to fail retention standards.  There was no performance-based evidence from the record that either of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for either of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the left knee condition, the panel recommends it be adjudicated as separately unfitting with a disability rating of 10%, coded 5259 IAW VASRD §4.71a.  In the matter of the left shoulder condition, the panel recommends it be adjudicated as separately unfitting with a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.   In the matter of the contended sensorineural hearing loss and PTSD conditions, the panel recommends no change from the PEB determinations as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Left Knee Pain	5259	10%	
Left Shoulder Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170213, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record  

AR20180004692, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

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

Sincerely,					      
Enclosure