RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX		CASE: PD-2017-03868 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20071227

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

CI CONTENTION:  No specific contention was made.  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 - 20070924	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Left Knee and Left Shoulder	5099-5003	10%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS: NA	

ANALYSIS SUMMARY:

Chronic Pain Left Knee and Left Shoulder. The PEB combined the left knee 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 is 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’s left knee condition began in September 2001 after a fall. This occurred during a previous enlistment with the Marine Corps. He enlisted in the Army in April 2006 and shortly thereafter his left knee became symptomatic. Left knee X-rays and MRI in July and August 2006 were negative.

During the 26 June 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported left knee pain, locking and giving out. Physical examination showed joint line tenderness, but no edema or effusion and lower extremity strength was normal. Range of motion (ROM) was full (0-140 degrees), but pain was elicited during flexion and extension.

The 10 August 2007 MEB NARSUM examination, 5 months prior to separation, noted complaints of episodic left knee pain. The CI was not able to do prolonged running and had difficulty walking at a pace greater than a slow walk. Physical examination showed positive patellar grind, but no joint line tenderness, edema or swelling. There was full ROM, and provocative testing to elicit instability or meniscal pathology was negative. The MEB NARSUM determined the CI fell below retention standards due to the left knee condition. There was no VA examination proximate to separation in evidence. The profile listed chronic left shoulder pain and chronic left knee pain, but the commander’s statement only implicated the CI’s left shoulder as impairing successful duty performance.

Panel members first considered if the left knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The left knee was profiled and failed retention standards. The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled left knee condition was reasonably considered separately unfitting. The panel then considered its rating recommendation for the unfitting left knee condition at the time of separation. The panel directed attention to its rating recommendation based on the above evidence. The PEB bundled the left knee and shoulder as a single unfitting condition and rated 10% as elaborated above, citing full ROM of both joints.

There was no limitation of motion to support a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261). However, there was evidence of painful motion with functional loss at the MEB examination supporting a 10% rating, coded 5299-5260 (based on
§§4.59, 4.40 and 4.45). 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, 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 the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the left knee condition, coded 5299-5260.

Left Shoulder. According to the STR and MEB NARSUM, the CI’s left shoulder condition began in March 2005 without trauma while in the Marine Corps. Shortly after enlisting in the Army, his left shoulder became symptomatic while doing sit-ups and push-ups.         A left shoulder MRI in

August 2006 showed a possible small labral tear, but left acromioclavicular X-rays in January 2007 were negative.

During the MEB examination, 6 months prior to separation, the CI reported chronic left shoulder pain and difficulty lifting. Physical examination showed acromioclavicular joint (ACJ) and anterior capsule tenderness. There was full left shoulder ROM (180 degrees) with pain in all planes of motion. Upper extremity strength was normal. At the MEB NARSUM examination the CI complained of difficulty flexing the shoulder past 90 degrees, difficulty lifting more than 20 pounds and pain with wearing a ruck. Physical examination showed tenderness over the ACJ, but there was full ROM. Provocative testing to elicit rotator cuff impingement signs (equivalent to painful motion) was positive. The MEB NARSUM examiner determined the CI fell below retention standards due to the left shoulder condition. There was no VA examination proximate to separation in evidence.

Panel members first considered if the left shoulder condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The left shoulder was profiled, implicated by the commander’s statement and judged by the MEB to fail retention standards. The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled left shoulder condition was reasonably considered separately unfitting. The panel then considered its rating recommendation for the unfitting left shoulder condition at the time of separation.

The panel directed attention to its rating recommendation based on the above evidence. 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 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) under code 5099-5003. There was no malunion or recurrent dislocation of the humerus to justify a rating under the 5202 code (humerus, other impairment); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under the 5203 code (clavicle or scapula, impairment). 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.

BOARD FINDINGS: In the matter of the left knee and left shoulder conditions, the panel recommends that each joint be separately adjudicated as follows: an unfitting left knee condition coded 5299-5260 and rated 10%, and an unfitting left shoulder condition, coded 5099-5003 and 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	
Left Knee	5299-5260	10%	
Left Shoulder	5099-5003	10%	
	COMBINED	20%	

PD-2017-03868 

AR20190012682, XXXXXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXX

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. 

PD-2017-03868