RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04616
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20081227

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Infantryman, medically separated for “right (dominant) shoulder pain” and “cartilage, semilunar, removal, left knee,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  Review requested of shoulder and knee conditions as well as additional 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 - 20081010	VARD - 20100325	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right (Dominant) Shoulder Pain	5099- 5003	10%	Labral Tear Right Shoulder S/P Arthroscopic Surgery and Traumatic Degenerative Joint Disease	5010-5201	20%	20091014	
Cartilage, Semilunar, Removal, Left Knee	5259	10%	Chondromalacia Patellae of the Left Knee, S/P Arthroscopic Surgery	5299-5260	10%	20091014 	
Hypertension	Not Unfitting	Hypertension	7101	0%	20091014	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:

Right (Dominant) Shoulder Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s right shoulder pain began in January 2006, when he was changing a 500-pound truck tire while deployed to Iraq.  He had a right shoulder surgical chondroplasty on 9 February 2007 and a subsequent labral arthroscopic Bankart repair on 25 July 2007.  Physical therapy (PT) treatments through April 2008 documented treatment for right shoulder strengthening and increasing range of motion (ROM).  Shoulder ROM documented on 9 April 2008, 9 months prior to separation, revealed flexion to 111 degrees (normal 180) and abduction to 97 degrees with muscle weakness (4/5); painful motion was not addressed.  The 29 July 2008 MEB NARSUM PT examination, 5 months prior to separation, noted complaints of right shoulder pain.  Physical examination showed the right shoulder with small arthroscopic scars, tenderness, normal musculature and strength, and mildly positive impingement signs.  Flexion was to 124 degrees and abduction to 125 degrees, limited by pain.  During the 4 August 2008 MEB examination (recorded on DD Forms 2807-1 and 2808), the CI reported right shoulder problems and surgery, and the examiner recorded a “marked” decrease in ROM.

At the 14 October 2009 VA Compensation and Pension (C&P) examination, 11 months after separation, the CI reported right shoulder pain and stiffness with swelling.  During flare-ups, he could not lift his right arm up at all and required narcotic pain medication.  Physical examination showed right shoulder tenderness with flexion to 98 degrees and abduction to 95 degrees; painful motion was present; X-rays documented degenerative joint disease.

The ROM examinations in evidence which the panel weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Right Shoulder ROM
(Degrees)	PT~9 Mo. Pre-Sep	MEB/PT ~5 Mo. Pre-Sep	VA ~11 Mo. Post-Sep	
Flexion (180 Normal)	111	124	0-98	
Abduction (180 Normal)	97	125	0-95	
Comments	Weakness	Palpable click; + impingement signs; tender	Painful motion; tender	
§4.71a Rating	10%-20%	10%	10%-20% (VA 20%)	

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right shoulder condition 10%, analogously coded 5099-5003 (arthritis, degenerative), citing limitation of flexion and abduction.  The VA rated the right shoulder condition 20%, analogously coded 5010-5201 (arm, limitation of motion) based on the C&P examination, citing arm motion limited at shoulder level.

	Rating
	Major	Minor
5201 	Arm, limitation of motion of:
		To 25° from side	40	30
		Midway between side and shoulder level	30	20
		At shoulder level	20	20

The VASRD §4.71a threshold for rating ROM impairment under code 5201 is “at shoulder level” (approximately 90 degrees from the side).  The panel majority noted that the MEB NARSUM PT examination was the single evaluation documenting right shoulder motion clearly above “shoulder level” and was preceded by a PT evaluation and followed by the VA examination which documented limitation approximately “at shoulder level” (within 5 and 8 degrees of the geometric ideal 90 degrees), with additional functional impairments (weakness, fatigue) noted.  The panel consensus was that the MEB NARSUM PT examination was an outlier, and thus members relied more heavily on the April 2008 PT examination and subsequent VA examination.  The panel majority adjudged that the preponderance of the evidence proximate to separation demonstrated motion and shoulder function limited to the 20% rating threshold of “at shoulder level.”  Additionally, the MEB examination recorded “marked” decrease in right shoulder ROM, although not quantified.  The next higher 30% rating for the dominant arm requires motion limited to “midway between side and shoulder level;” however, examinations did not reflect this degree of limitation.  There was no malunion with marked deformity or frequent episodes of recurrent dislocation of the humerus to justify a higher rating under code 5202 (humerus, other impairment of), and no higher ratings available under code 5203 (clavicle or scapula, impairment).  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the right shoulder condition, coded 5010-5201.

Left Knee.  According to the STR and MEB NARSUM, the CI’s left knee condition began in 2002 while deployed to Bosnia.  He had surgery at a civilian hospital and recovered until a subsequent injury in 2005.  An MRI documented osteochondral injury, loss of cartilage, and chondromalacia patella, and he underwent arthroscopic surgery with removal of loose bodies and a partial lateral meniscectomy on 16 January 2008.   The MEB NARSUM examination noted complaints of left knee pain.  Physical examination showed a normal gait, knee tenderness, and pain-limited ROM with flexion of 105 degrees (normal 140) and extension of 0 degrees (normal).  There was also tenderness with meniscal testing.

At the C&P examination, the CI reported constant left knee pain with swelling, stiffness and occasional giving way.  Physical examination showed a normal gait, but painful ROM with flexion of 104 degrees and extension of 0 degrees.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition 10%, coded 5259 (cartilage, semilunar, removal of, symptomatic), citing flexion to 105 degrees.  The VA also rated the left knee condition 10%, but analogously coded 5299-5260 (leg, limitation of flexion), based on the C&P examination, citing painful motion.  Members agreed 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).  The panel considered code 5259 (cartilage, semilunar, removal of) for the partial lateral meniscectomy, but agreed that any pain symptoms from this were already a component of the aforementioned functional loss, and could only be rated once without violating §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), and 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the left knee condition.

Contended PEB Condition:  Hypertension.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended condition was not profiled or implicated in the commander’s statement, and did not fail retention standards.  There was no performance-based evidence from the record that the condition 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 the contended condition, so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the right shoulder condition, the panel majority recommends a disability rating of 20%, coded 5010-5201 IAW VASRD §4.71a.  In the matter of the left knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the contended hypertension condition, the panel recommends no change from the PEB determination as not unfitting.  The single voter for dissent submitted the appended minority opinion.  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	
Right (Dominant) Shoulder Pain	5010-5201	20%	
Cartilage, Semilunar, Removal, Left Knee	5259	10%	
COMBINED	30%	

The following documentary evidence was considered:

AR20190005374, 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 30% 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,
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
A copy of this decision has also been provided to the Department of Veterans Affairs.

MINORITY OPINION:  The minority voter, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), strongly supports a disability rating of 10% (no modification or re-characterization), for the right shoulder pain, coded 5010-5201 (arm limitation of motion).  

The majority agreed that the MEB NARSUM PT examination was the single evaluation that documented right shoulder motion “above shoulder level,” and was preceded by a PT evaluation and followed by the VA examination which documented limitation approximating “at shoulder level,” with additional functional impairments (weakness, fatigue).  The majority adjudged that the NARSUM/PT examination was an outlier and relied more heavily on the prior PT and subsequent VA examinations, therefore recommending a 20% rating.  

The ROM examinations in evidence which the panel weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below:  

Right Shoulder ROM
(Degrees)	PT~9 Mo. Pre-Sep
	PT/MEB/ ~5 Mo. Pre-Sep
	VA ~11 Mo. Post-Sep
	
Flexion (180 Normal)	111	124	0-98	
Abduction (180)	97	125	0-95	
Comments	Weakness	Palpable click; + impingement signs; tender	Painful motion; tender	
§4.71a Rating	10-20%	10%	10%-20% (VA 20%)	

The minority member places high probative value on the three examinations in evidence which demonstrate ROM above shoulder level.  However, even with the omission of the MEB NARSUM PT examination, the remaining ROM measurements in evidence are above the 90-degree threshold.  Overall, the preponderance of evidence shows ROMs that are above shoulder level, and are appropriately rated at 10%.  

In the matter of the right shoulder condition, the minority, with consideration of all the evidence and mindful of VASRD §4.3 (reasonable doubt), recommends no change to the PEB’s disability rating of 10%, as an accurate and fair evaluation, IAW VASRD §4.71a.  

Consistent with the DoDI 6040.44 standard of recommendations that are fair and equitable to both the Service and the CI, the Secretary is respectfully requested to consider the minority recommendation that the CI’s prior determination remain as follows: no modification or re-characterization of the CI’s disability and separation determination.