RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05019
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070908

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E5, Chaplain Assistant, medically separated for “chronic bilateral knee pain” and “bilateral shoulder pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  “See VA records.”  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 - 20070522	VARD - 20080320	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain 	5099-5003	10%	Chondromalacia, Right Knee	5299-5014	10%	20071026	
			Chondromalacia, Left Knee	5099-5014	10%		
Bilateral Shoulder Pain	5099-5003	0%	Right Shoulder Impingement Syndrome (Dominant)	5201-5010	10%		
			Left Shoulder Impingement Syndrome	5010-5201	20%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:

Chronic Bilateral Knee Pain.  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’s chronic bilateral knee condition began in approximately August 2006 when he sustained bilateral tibial fractures (fxs) during training.  Bone scan on 14 September 2006 showed stress fxs of both knees (medial tibial plateaus) and MRI studies of the knees were consistent with degenerative meniscal changes and some cartilage changes.  Arthroscopy of the knees was postponed until after the tibial plateau stress fxs had healed.  

The CI underwent arthroscopy of both knees on 7 March 2007, 6 months prior to separation.  The surgery revealed degenerative meniscal changes and chondromalacia of the femoral condyle and tibial plateau of both knees and some reactive synovitis within the joints.  All consistent with DJD of the knees.  Both knees were stable.  No intervention was performed on the right knee; chondroplasty of the medial femoral condyle was performed on the left knee.  The 9 March 2007 MEB NARSUM examination, 2 days after the surgeries, noted the findings of the arthroscopies and no physical examination was documented.

At the 26 October 2007 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported daily bilateral knee pain without flare-ups or swelling.  The CI was wearing hard knee braces on both knees.  A remote history of open meniscectomy in 1968 and anterior cruciate repair in 1970 was noted (presumably of the left knee as it had a medial scar-see below).  Physical examination showed a minimally antalgic gait favoring the left leg.  The knee joints appeared minimally arthritic without effusion.  There was a well healed scar of the medial left knee.  There was no evidence of instability or meniscal pathology.  Patellar compression was positive with crepitus bilaterally.  There was tenderness of the proximal medial aspect of the tibia bilaterally.  Repetitive left knee flexion was 136 degrees and extension was 0 degrees.  Repetitive right knee flexion was 122 degrees and extension was 0 degrees.  Bilateral painful motion was elicited.  There was additional pain, weakness, fatigability, or loss of coordination with repetition.

The panel first considered if the left and right knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  In this case, both knees were profiled and judged to fail retention standards.  The panel concluded there was not a preponderance of evidence to overcome the presumption that each knee condition was reasonably considered separately unfitting and eligible for separate disability rating.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 10%, analogously coded 5099-5003, citing full ROM without joint instability and degenerative arthritis with X-ray evidence.  The VA rated each knee 10%, analogously coded 5099-5014 (osteomalacia), based on the C&P examination, citing painful motion.  The panel agreed there was no limitation of motion of either knee 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) for each knee.  The persistence of pain after meniscal surgery warranted an alternative 10% rating under the 5259 code for the left knee, which provided no rating benefit.  There was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) and the examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257) to support a rating under the respective codes for either knee.  There was no fracture, non-union, or malunion of the right or left 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 supported for either knee under any applicable VASRD §4.71a 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 unfitting left knee, and 10% for the unfitting right knee, both coded 5299-5260.

Chronic Bilateral Shoulder Pain.  The PEB combined the right and left shoulder conditions under a single disability rating, coded analogously to 5003 and rated 10%.  The possible reasoning for this combined adjudication was elaborated above under the knee condition and the same process and presumptions apply here to unbundling the bilateral shoulder condition.  

According to the STR and MEB NARSUM, the CI’s bilateral shoulder pain began after using crutches for bilateral stress fxs of the knees discussed above.  The CI initially reported non-dominant left shoulder pain and MRI on 16 October 2006 showed DJD degenerative changes of the joint and rotator cuff structures and a tear of the cartilage (SLAP lesion) with loose bodies in the subscapular bursa.  The profile dated 12 January 2007 listed shoulder impingement and rotator cuff tears.  The commander’s statement provided no specific evidence regarding the fitness of the CI’s multiple medical conditions.  At an orthopedic visit on 9 February 2007, the CI reported a 6 month history of bilateral shoulder pain.  

At the 23 February 2007 MEB physical therapy examination, 7 months prior to separation, repetitive right shoulder flexion was 124 degrees (normal 180) and abduction was 98 degrees (normal 180) limited by pain.  Repetitive left shoulder flexion was 109 degrees and abduction was 53 degrees limited by pain.  At the 9 March 2007 MEB NARSUM examination, 6 months prior to separation, the examiner noted the CI had X-rays and MRIs performed on both shoulders while on convalescent leave for the lower extremity stress fxs.  Both showed arthritis and rotator cuff tears with impingement and fluid in the subacromial bursa.  A left shoulder surgery was planned after the MEB.  The MEB NARSUM examiner indicated that due to the CI’s multiple complaints, including the upper extremities, retention in the military was not recommended.

At the C&P examination the CI reported daily bilateral shoulder pain especially with overhead reaching.  Flare-ups were reported once or twice a day.  Physical examination showed no muscle atrophy of either shoulder.  Repetitive right shoulder flexion was 154 degrees and abduction was 110 degrees with painful motion.  Repetitive left shoulder flexion was 100 degrees and abduction was 80 degrees with painful motion.  There was no evidence of instability of either shoulder, but impingement signs were positive bilaterally.

The panel first considered if the left and right shoulder conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  In this case, both shoulders were profiled and considered to fail retention standards.  The panel concluded there was not a preponderance of evidence in the STR that overcame the panel’s presumption that the each of the bundled shoulder conditions was reasonably considered separately unfitting and eligible for separate disability rating.

The panel directed attention to its rating recommendations based on the above evidence.  The PEB rated the bilateral shoulder condition 10%, analogously coded 5099-5003, citing flexion and abduction limited by pain alone.  The VA rated the non-dominant left shoulder condition 20%, dual coded 5010-5201 (traumatic arthritis causing limitation of arm motion), based on the C&P examination, citing arm motion at shoulder level.  The VA rated the dominant right shoulder condition 10%, dual coded 5201-5010 (limitation of arm motion due to traumatic arthritis), based on the C&P examination, citing painful motion.

Left Shoulder (non-dominant).  The VASRD §4.71a threshold for a 20% rating for ROM impairment of the non-dominant shoulder (5201) is “at shoulder level” (approximately 90 degrees from the side) or “midway between the side and shoulder level” and the examinations in evidence demonstrated motion limited to this level.  The highest 30% rating for a non-dominant arm requires motion limited to “25 degrees from side,” but examinations did not reflect this degree of limitation.  There was no fibrous union or nonunion of the humerus to justify a higher rating under the 5202 code (humerus, other impairment of), and no higher ratings available under the 5203 code (clavicle or scapula, impairment of).  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 left shoulder condition, coded 5201.

Right Shoulder (dominant).  As noted above, the VASRD §4.71a threshold for rating for ROM impairment is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion above this level.  Although there was insufficient 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).  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 (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 right shoulder condition, coded 5099-5003.

BOARD FINDINGS:  In the matter of the bilateral knee condition, the panel recommends that each joint be separately adjudicated as follows: an unfitting right knee condition coded 5299-5260 and rated 10%, and an unfitting left knee condition, coded 5299-5260 and rated 10%, both IAW VASRD §4.71a.  In the matter of the bilateral shoulder condition, the panel recommends that each joint be separately adjudicated as follows:  an unfitting right shoulder condition coded 5099-5003 and rated 10%, and an unfitting left shoulder condition, coded 5201 and rated 20%, 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; 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 Right Knee Pain	5299-5260	10%	
Chronic Left Knee Pain	5299-5260	10%	
Right Shoulder Pain	5099-5003	10%	
Left Shoulder Pain 	5201	20%	
COMBINED	50%	

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 50% 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.

Sincerely,					      
Enclosure