RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01379
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050211

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve W2, UH-60 Pilot, medically separated for “[left] shoulder and bilateral knee pain” rated 20%, and “back pain” rated 0%, with a combined disability rating of 20%. 

CI CONTENTION: The VA gave him a higher rating for his conditions.  He also requested review of other conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 -20041004	VARD - 20060613	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Left Shoulder and Bilateral Knees	5099-5003	20%	Fracture, Distal Left Clavicle	5203-5201	20%	20050826	
			Patellar Chondromalacia, Right Knee	5099-5014	10%	20050826	
			Medial Meniscus Tear, Left Knee	5259	10%	20050826	
Chronic Back Pain 	5299-5237	0%	Degenerative Changes, Lumbar Spine	5242	40%	20050826	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Pain, Left Shoulder and Bilateral Knees.  The panel noted that the PEB inadvertently referred to the right shoulder as being unfitting, but a review of the record clearly showed that the CI’s left shoulder was the shoulder of concern.  The PEB combined the left shoulder and bilateral knee conditions under a single disability rating, analogously coded 5099-5003 and rated 20% 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 shoulder and bilateral knee conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Chronic Pain Left Shoulder:  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent surgery with ligament repair in September 2002.  A year later, the CI developed instability and labral tear symptoms and underwent another surgery.  He continued to have pain after surgery.  The 26 August 2004 MEB NARSUM examination, 6 months prior to separation, noted complaints of left shoulder pain, recurrent dislocations, pain associated with some limitation of range of motion (ROM), and numbness.  Physical examination of the left shoulder showed there was a defect at the scapula-clavicle junction.  The examiner stated, “…and the shoulder easily dislocates.”  ROM recorded flexion to 110 degrees (normal 180), and abduction to 107 degrees (normal, 180).  There was absence of sensation to touch and pin prick, but motor function was intact.

At the 26 August 2005 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported continued left shoulder pain, an inability to elevate his left arm above the level of the clavicle, and muscle weakness.  Physical examination of the left shoulder showed flexion and abduction to 60 degrees with pain.  X-rays revealed marked elevation of the distal clavicle suggestive of severe AC joint separation.

The panel first considered if the left shoulder condition met the panel’s threshold for separate rating (as elaborated above).  All panel members agreed that the preponderance of evidence showed the condition was separately unfitting.  The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the left shoulder condition 20%, dual coded 5203-5201 (clavicle or scapula impairment causing limitation of motion), based on the C&P examination.  

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 pre-separation examination in evidence demonstrated motion above this level. Therefore, a rating under this code was not warranted.  The panel next considered rating under code 5203.  The NARSUM examiner noted that the CI’s left shoulder had a clavicle-scapula junction defect that allowed for the joint to dislocate easily, suggesting that dislocation had occurred during the examination of the shoulder.  A physician note dated 3 months before separation indicated dislocation of the AC joint and probable torn labrum was present.  The CI complained of recurrent dislocations, and the C&P examiner, 6 months after separation, noted X-rays showed severe AC joint separation.  Panel members agreed that a 20% rating and no higher was justified under the 5203 code.  There was no higher rating achievable under any other applicable code.  After due deliberation, and considering all the evidence, the panel recommends a separately unfit determination with a disability rating of 20%, for the left shoulder condition, coded 5203.  

Chronic Pain Bilateral Knees:  According to the STR and MEB NARSUM, the CI underwent right knee arthroscopy in 1995.  Despite continued right knee pain, he was found fit for duty later that same year.  In March 2001 the CI had surgery on his left knee.  His pain persisted, and in June 2004 he had left knee debridement surgery.  The MEB NARSUM examination noted complaints of bilateral knee pain.  The CI continued working as a pilot instructor but no longer participated in physical training exercises or the physical fitness test.  Physical examination of the bilateral knees showed loss of pinprick sensation and touch in the lateral aspect of the left knee.  Motor exam was normal.  Right knee ROM documented flexion to 120 degrees (normal 140) and extension of 0 degrees (normal).  The left knee had 98 degrees of flexion and normal extension.  Painful motion was not recorded, and there was no report of knee give way, locking, instability, or weakness.  The examiner did not document functional impairment of either knee.  

The pre-separation STR entries focused treatment on the left knee.  In August 2004 the CI received a left knee steroid injection.  In November 2004 he complained of left knee pain, and at a primary care visit 2 months after separation, the CI stated that his left knee “hurts the most.”  An MRI of the right knee 2 months after separation showed an equivocal tear of the posterior horn of the medial meniscus and minimal knee joint effusion.  MRI of the left knee at the same time showed a tear of the posterior horn of the medial meniscus and tear of the lateral meniscus.  

At the C&P examination the CI reported bilateral anterior knee pain with prolonged standing, walking, knee bending, kneeling, squatting, climbing, or standing.  He also reported intermittent locking or buckling in the left greater than right knee approximately once weekly.  He denied flare-ups of knee pain.  The ROM of the left knee demonstrated flexion to 90 degrees with pain, and right knee flexion to 120 degrees with pain.  Extension was normal bilaterally.

The panel first considered if the left and right knee conditions, having been decoupled from the combined PEB adjudication, remained separately unfitting.  Although both knees were profiled, implicated in the commander’s statement, and found by the MEB to fail retention standards, the panel noted the right knee was not a focus of medical concern in the 2 years preceding separation.  There were no pre-separation radiographic findings of right knee pathology, and although the post-separation MRI demonstrated an equivocal meniscal tear, there was no objective finding of knee instability.  Panel members considered the objective findings and associated disability, and concluded that the preponderance of evidence showed the right knee condition would not have caused the CI to be referred into the DES, but the left knee was reasonably considered unfitting.

The panel next considered the rating for the left knee.  There was no objective evidence of locking, subluxation, or knee giving way in the STR prior to separation, but both the NARSUM and C&P examinations recorded ROM flexion below 100 degrees with painful motion recorded at the C&P examination.  Panel members agreed the record in evidence supported a 10% rating for the left knee condition for painful motion with functional loss IAW §4.59 and §4.40.  After due deliberation, and considering all the evidence, the panel recommends a disability rating of 10% for the left knee condition, coded 5099-5003.  

Chronic Back Pain.  According to the STR and MEB NARSUM, the CI’s back condition began in 1997 with evidence of thoracic kyphosis/lordosis.  The MEB NARSUM examination noted complaints of mid and low back pain.  Physical examination of the back revealed spine deformity of the thoracic region from kyphosis.  ROM of the lumbar spine documented flexion to 80 degrees (normal 90) and extension to 10 degrees (normal 30).  Muscle spasm was not recorded and painful motion was not addressed.  Neurological and motor examinations were unremarkable.  A lumbar spine MRI showed no focal disc herniation, spinal stenosis, or nerve root compromise.
At the C&P examination the CI reported chronic low back pain, aggravated with bending, stooping, climbing, lifting, standing, or prolonged walking.  He denied radicular symptoms and incapacitating episodes requiring bed rest.  Physical examination recorded forward flexion to 30 degrees with tenderness, and extension of 0 degrees with pain.  There was no change in ROM after repetition.  Spasm was not recorded.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, analogously coded 5299-5237 (lumbosacral strain).  The VA rated the back condition 40%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing forward flexion of the thoracolumbar spine of 30 degrees or less.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion greater than 60 degrees but not greater than 85 degrees as reported on the MEB NARSUM examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  The panel found no radiographic or clinical pathology to explain the disparity between the NARSUM and C&P ROM measurements.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the back condition, coded 5299-5237.  

BOARD FINDINGS:  In the matter of the left shoulder and bilateral knee condition, the panel recommends that each joint be separately adjudicated as follows:  left shoulder condition coded 5203 and rated 20%, and left knee condition coded 5099-5003 and rated 10%, both IAW VASRD §4.71a.  In the matter of the right knee condition, the panel agrees that it cannot recommend a finding of unfit for an additional disability rating.  In the matter of the back condition, the panel recommends a disability rating of 10%, coded 5299-5237 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Pain, Left Shoulder	5203	20%	
Chronic Pain, Left Knee	5099-5003	10%	
Chronic Back Pain	5299-5237	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170308, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180007881, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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 40% 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), XXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXX.

Sincerely,					      
Enclosure