RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01241
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20060124

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Military Policeman, medically separated for “chronic right shoulder pain” and “left knee pain,” with a single combined disability rating of 10%. 

CI CONTENTION:  “100%.”  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 - 20051209	VARD - 20061918	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Shoulder Pain and Left Knee Pain 	5099-5003	10%	DJD Right Shoulder	5010-5203	10%	20060602	
			Left Knee … Subluxation	5257	20%	STR	
			Internal Derangement, Left Knee	5260	10%	STR	
			Left Knee … Limited Extension	5261	10%	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Right Shoulder and Left Knee Pain.  The PEB combined the right shoulder and left knee 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 right shoulder and left knee conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

Right Shoulder Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI suffered a right (dominant) shoulder injury from blunt trauma during combat operations in Iraq in May 2003.  The pain persisted after redeployment and imaging (MRI) demonstrated supraspinatus tendinosis with no rotator cuff tear or other pathology.  He failed a trial of conservative measures and underwent arthroscopic surgery (repair of a labral tear [rim of the shoulder socket, SLAP lesion], with subacromial decompression and bursectomy) in June 2005 which was 7 months before separation.  

There was a series of improving range of motion (ROM) measurements in post-operative STR entries.  The last of these were formal ROM measurements for the MEB by physical therapy (PT) on 17 October 2005, 3 months before separation, that recorded forward flexion to 148 degrees (normal 180) and abduction to 145 degrees, specifying painful motion.  The final orthopedic STR entry documented grossly normal ROM, full strength with no atrophy, impingement or instability.   There were no STR entries contrary to any of these findings and none that documented any additional VASRD-ratable findings.

The 25 October 2005 MEB NARSUM examination, 3 months prior to separation, documented non-specific shoulder pain rated “slight and constant” that prohibited repetitive overhead activities and other general soldiering requirements.  The physical examination recorded “moderate” joint tenderness, normal strength, and “full” ROM, but with painful motion “especially in abduction.”  

The shoulder condition was judged to independently fail retention standards per the NARSUM, and was separately forwarded as such on the MEB’s DA Form 3947 submission.  It was separately profiled as U3 with instructions to avoid push-ups, sit-ups and load-bearing.  It was specifically and separately implicated by the commander’s performance statement which noted “cannot wear road gear.” 

At the 2 June 2006 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI complained of shoulder weakness and near-constant pain rated 8/10.  The only functional limitation specified was “not able to lift his arm up and put it to his back.”  The physical examination recorded tenderness, “poor strength with abduction” and the absence of crepitus or ankylosis.  Forward flexion was 180 degrees with abduction to 170 degrees, to include pain at the end points and weakness and fatigue with repetitive use.

Directing attention to its recommendations, the panel first considered if the shoulder condition met the panel’s threshold for separate rating as elaborated above.  Panel members agreed the NARSUM judgement that the shoulder independently failed retention standards, the separate and distinct profile, and the implication by the commander’s statement constituted compelling evidence that the right shoulder was reasonably justified as separately unfitting under the above standard.

The panel then considered its rating recommendation for the unfitting shoulder condition at the time of separation. The VA 10% rating under code 5010-5203 (traumatic arthritis rated as impairment of the clavicle or scapula) was based on the C&P evidence and cited “pain, fatigue, weakness and lack of endurance [with repetitive use].”  Although the ROM evidence did not support the minimum compensable rating under code 5201 (limitation of motion), members agreed there was satisfactory evidence of painful motion (VASRD §4.59) to support a minimum 10% rating.  There was no evidence in support of instability or recurrent subluxation for consideration of a higher rating under code 5202 (humerus, other impairment); and, there was no ankylosis, deformity, fracture complication or other ratable feature which would support a higher rating under any alternative VASRD §4.71a joint code.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends the right shoulder condition as separately unfitting with a 10% rating under code 5010-5201.  

Left Knee Pain.  Although no specific injury was identified, the CI returned from Iraq with persistent left knee pain.  An MRI demonstrated a meniscal tear (anteroposterior horn, lateral meniscus) without any ligamental or other pathology.  He underwent an arthroscopic meniscectomy on 21 October 2004.  Intact ligaments were confirmed intraoperatively.  A 6-week post-operative PT entry documented normal ROM measurements.  Numerous subsequent STR entries documented grossly normal ROM. Two orthopedic examinations specified there was no hyperextension.   Formal PT ROM measurements for the MEB were flexion to 128 degrees and extension 0 degrees.

There was ample STR documentation, including that by orthopedic examiners, of 4-plane stability to stress testing.  There was STR documentation of a normal gait, and the absence of persistent effusion and joint impingement (locking).  There were no entries contrary to any of these findings and none that documented any other VASRD-ratable findings.  The NARSUM documented non-specific knee pain rated “slight and constant” which prohibited running, jumping, and other general soldiering requirements.  The physical examination recorded normal gait and strength, no tenderness or effusion, and “full” ROM without note of instability.

The left knee condition was judged to independently fail retention standards per the NARSUM, and was separately forwarded as such on the MEB DA Form 3947 submission.  It was specifically and separately implicated by the commander’s performance statement and profiled as L3 for no running, with walking and biking to be done at the CI’s own pace.  

At the C&P examination the CI complained of subjective weakness and “giving way” with near-constant pain rated 6/10 that “limited standing and walking ability.”  No use of a brace was noted. The physical examination recorded a normal gait, tenderness, and “moderate recurrent subluxation with joint effusion and crepitus” without elaborating specifics other than “slight” instability of the collateral and cruciate ligaments. There was no comparison examination with the right knee.  Measured ROM was flexion to 130 degrees and extension 10 degrees (presumably indicating hyperextension to 10 degrees since there was no minus sign), specifying pain at end points.  

Directing attention to its recommendations, the panel first considered if the left knee condition having been decoupled from the combined PEB adjudication, remained separately unfitting as established above.  Under the same standard and for the same rationale as elaborated for the shoulder, members agreed that the left knee was reasonably justified as separately unfitting.  Having agreed the condition was subject to separate service rating, members turned to deliberation of the appropriate rating recommendation.   The VA, based on the C&P evidence, conferred three separate ratings for the knee: 10% under code 5260 (limitation of flexion), 20% for “moderate” instability under code 5257 (knee, other impairment), and 10% under code 5261 (limitation of extension).  

With regard to separate rating for instability, members agreed that this could not be justified for service rating.  There was ample service evidence, including orthopedic specialty examinations, which refuted the presence of instability.  There was imaging and intraoperative evidence of intact ligaments with no plausible explanation for instability of the magnitude portrayed by the VA evidence.    With regard to separate rating for limitation of extension, members also agreed this could not be justified for service rating.  There was ample service evidence, including orthopedic specialty examinations, which refuted the presence of either hyperextension or limited extension.  The panel further noted that the VA’s separate rating for limited extension in this case did not comply with the VA’s own guidance that separate ratings for limited flexion and for limited extension are authorized only when there is minimum compensable limitation for both (hyperextension is not addressed in this ruling), conditions not met in this case.  

Although there was insufficient evidence for compensable ROM limitation (codes 5260 or 5261), members agreed there was satisfactory evidence for painful motion in support of a minimum 10% rating. The panel further noted that code 5259 (removal of semilunar cartilage, symptomatic) was applicable to the case and provides for a 10% rating independent of any other criterion.  There was no evidence for persistent effusion and locking (code 5258) or fracture with nonunion or malunion (code 5262) to support a rating higher than 10%.  There are no other applicable coding or rating options.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends the left knee condition as separately unfitting with a 10% rating under code 5259.

BOARD FINDINGS:  In the matter of the PEB-combined right shoulder and left knee conditions, the panel recommends each condition be separately adjudicated as separately unfitting conditions as follows:  an unfitting right shoulder coded 5010-5201 rated 10%, and an unfitting left knee coded 5259 rated 10%, both IAW VASRD §4.71a.  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 medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Shoulder Labral Tear with Surgical Residuals	5010-5201	10%	
Left Knee Meniscal Tear with Surgical Residuals	5259	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170307, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20180008613, 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