RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01794
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061107

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E7, Recruiter, medically separated for “bilateral knee arthritis,” “left shoulder pain” and “chronic neck pain,” rated 10%, 0% and 0%, respectively, with a combined disability rating of 10%.   

CI CONTENTION:  The VA rating was higher than the MEB for bilateral knees, left shoulder pain and chronic neck pain.  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 - 20061002	VARD - 20071102	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Arthritis	5003	10%	Left Knee Strain	5262	10%	20070814	
			Mild Degenerative Changes, Right Knee	5010-5262	10%	20070814	
Left Shoulder Pain	5099-5003	0%	Left Shoulder Strain, Minor	5203	10%	20070814	
Chronic Neck Pain	5243	0%	Cervical Spine Strain	5237	20%	20070814	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Bilateral Knee Arthritis. The PEB combined the right and left knee conditions under a single disability rating, coded analogously to 5003 (degenerative arthritis) and rated 10%.  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.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent multiple right knee surgeries including arthroscopies with meniscectomies (May 2001 and February 2002) and bone cyst removal and grafting (August 2002).  In 2005, the CI was involved in a motorcycle collision resulting in left knee instability and he underwent left posterior cruciate ligament repair in September 2005.  The commander’s statement dated 28 June 2006, 4 months prior to separation, indicated the CI could perform all the duties of his MOS, however he had not completed an Army Physical Fitness Test (APFT) since 2004 due to “multiple surgeries (3 or 4)…over the last couple of years.”  The permanent U3L3 profile listed left shoulder disability, chronic bilateral knee pain and chronic neck pain.  The 28 June 2006 MEB NARSUM noted a history of multiple right knee surgeries and left knee ligament surgery.  The examiner determined the CI fell below retention standards due to chronic left knee pain.  

The 11 September 2006 MEB NARSUM orthopedic addendum, 2 months prior to separation, noted complaints of bilateral knee pain with prolonged standing or walking.  Physical examination of the knees showed no effusion.  Both knees were stable.  Strength was 5/5 for knee flexion and extension, and deep tendons reflexes were intact.  Bilateral Knee range of motion (ROM) was flexion of 130 degrees (normal 140) and normal extension (0 degrees).  Weight bearing X-rays of the bilateral knees in September 2006 showed some mild early osteoarthritis on both sides, with evidence of cruciate ligament repair on the left.  The examiner noted the CI was unable to march or stand for prolonged periods due to his “knee problem” and agreed with the conclusions and recommendations of the MEB NARSUM.  The 11 September 2006 physical therapy (PT) ROM study, showed left knee flexion of 134 degrees and extension of 0 degrees and right knee flexion of 135 degrees and extension of 0 degrees.  Knee ROM was limited by pain bilaterally.  

At the 14 August 2007 VA Compensation and Pension (C&P) examination, 9 months after separation, the CI reported daily right knee pain and regular use of a knee brace, and daily left knee pain with significant swelling, inability to kneel and occasional use of a brace.  Bilateral knee pain was aggravated by climbing stairs and kneeling.  Physical examination showed a normal gait.  There was marked crepitus and moderate swelling over the left knee as compared to the right.  Squatting was limited by bilateral knee pain.  Left knee flexion was 130 degrees, decreased by repetitive use to 120 degrees, and right knee flexion was 135 degrees, decreased by repetitive use to 130 degrees.   

The panel first considered if the right and left knee conditions, having been de-coupled from the combined PEB adjudication, each remained separately unfitting as established above.  Both knees were profiled, but only the left knee was implicated in the commander’s statement.  The left knee surgeries all occurred in 2005 and 2006.  However, the CI’s right knee surgeries occurred in 2002 or earlier and the panel therefore concluded the CI recuperated sufficiently from the right knee surgeries to complete APFTs.  The MEB NARSUM indicated the CI fell below retention standards for the left knee only and the orthopedic MEB addendum agreed with the MEB NARSUM conclusions.  The panel concluded the left knee was separately unfitting, but the preponderance of evidence showed that the right knee was not unfitting at separation.  

The panel then considered its rating recommendation for the unfitting left knee at the time of separation.  The PEB rated the bilateral knee arthritis condition 10%, 5003 (arthritis, degenerative), citing radiographic arthritis of two major joints without loss of motion.  The VA rated the left knee condition 10%, coded 5262 (tibia and fibula, impairment) based on the C&P examination, citing malunion of the tibia and fibula with slight knee or ankle disability.  There was no limitation of motion 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) at the MEB PT and VA examinations.  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under those codes.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There was therefore no higher than a 10% rating for the left knee under any applicable VASRD knee or analogous code.  After having unbundled the knees, the panel arrived at the same combined 10% rating for the knee, which provides no benefit to the CI.  Therefore no change to the PEB’s combined adjudication is recommended.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB combined adjudication for the bilateral knee condition.  

Left Shoulder Pain.  According to the STR and MEB NARSUM, the right-hand dominant CI underwent left shoulder surgery with anterior-superior labral repair resulting in shoulder stability.  However, he continued to have pain and limited ROM.  The MEB NARSUM examination noted complaints of left shoulder pain, especially with overhead activities and at night.  Physical examination showed tenderness anteriorly without redness or bruising.  Left shoulder ROM was flexion to 120 degrees (normal 180) with significant pain.  Rotator cuff strength was 5/5 with significant discomfort with strength testing.  At the PT ROM examination, 2 months prior to separation, left shoulder flexion and abduction, after three repetitions, was 110 degrees, limited by pain.  

During the C&P examination the CI reported loud noises in the shoulder and decreased ROM.  Physical examination showed abduction of 160 degrees, with decrease to 130 degrees (normal 180), after repetition.  There was marked crepitus with abduction of the left shoulder along with tenderness. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left shoulder condition 0%, analogously coded 5099-5003 (arthritis, degenerative) citing motion limited by pain, but no instability.  The VA rated the left shoulder condition 10%, coded 5203 (clavicle or scapula, impairment) based on the C&P examination, citing malunion or nonunion of the clavicle or scapula.

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 above this level.  Although there was insufficient ROM 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) based on all examinations proximate to separation.  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.  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 left shoulder condition, coded 5099-5003.  

Chronic Neck Pain.  According to the STR and MEB NARSUM, the CI’s chronic neck pain condition began in 1995 and worsened over the years.  No trauma or injury was reported.  The CI developed numbness of the bilateral extremities and underwent an anterior cervical discectomy and fusion at C5-6 in January 2005.  Despite surgery, the CI continued to have neck pain.  

The 27 June 2006 PT ROM examination, 4 months prior to separation, showed flexion of 20 degrees (normal 45) and combined ROM of 175 degrees (normal 340).  The MEB NARSUM examination showed diffuse tenderness over the lower cervical spine but no muscle spasms.  Neck ROM was limited by pain and the examiner referred to the PT ROM measurements summarized above.  During the 11 September 2006 MEB NARSUM addendum, 2 months prior to separation, the CI complained of constant neck pain with occasional numbness of the upper extremities with neck ROM.  The CI was unable to tolerate the wear of Kevlar.  Physical examination was not performed.  

At the C&P examination the CI reported a small amount of residual numbness in his first through third fingers on the right hand.  On physical examination, there was tenderness of the cervical spine.  Neck ROM was flexion of 20 degrees and combined ROM of 165 degrees with painful motion.  There was no additional loss of motion with repetitive use.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 0%, analogously coded 5243 (intervertebral disc syndrome), citing motion limited by pain and no instability.  The VA rated the neck condition 20%, coded 5237 (cervical strain), based on the C&P examination, citing forward flexion of the cervical spine greater than 15 degrees but not greater than 170 degrees.  The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 15 degrees but not greater than 30 degrees) as noted on the examinations proximate to separation.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the neck condition, coded 5243.  

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the left shoulder condition, the panel recommends a disability rating of 10%, coded 5009-5003 IAW VASRD §4.71a.  In the matter of the neck condition, the panel recommends a disability rating of 20%, coded 5243 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	
Bilateral Knee Arthritis	5003	10%	
Left Shoulder Pain	5099-5003	10%	
Chronic Neck Pain	5243	20%	

AR20190005948, 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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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