RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05062
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, General Construction Equipment Operator, medically separated for “chronic pain bilateral shoulders, right hip pain and left knee,” with a disability rating of 20%.   

CI CONTENTION:  Review all conditions. 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 – 20060124	VARD – 20070726 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain in Bilateral Shoulders, Right Hip Pain and Left Knee	5099-5003	20%	Right Hip Strain	5252	10%	20070129	
			Left Knee	5260	10%	20070129	
			Left Shoulder	5201	10%	20070129	
			Right Shoulder 	5201	10%	20070129	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Pain in Bilateral Shoulders, Right Hip Pain and Left Knee.  The PEB combined the bilateral shoulders, right hip and left knee conditions under a single disability rating, coded analogously to 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 bilateral shoulders, right hip and left knee conditions is presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

Shoulders.  The panel first considered if the bilateral shoulder condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The permanent profile listed bilateral shoulder pain.  The commander’s statement indicated that both shoulder conditions impaired the successful performance of the physical aspects of his MOS.  The MEB NARSUM examiner determined the bilateral shoulder conditions failed retention standards.  Treatment notes in the service treatment record (STR) indicated that the CI underwent surgery of both shoulders with continued pain in both shoulders after the surgeries.   The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either shoulder over the other.  Since undue speculation would be required to conclude that impairment from either shoulder would not have unacceptably interfered with the performance of military duties, members agreed that each shoulder was reasonably justified as separately unfitting.  The panel then considered its rating recommendation for the unfitting right and left shoulder conditions at the time of separation.  

According to the STR and MEB narrative summary (NARSUM), the CI underwent right shoulder arthroscopy in January 2004 for instability.  The surgeon noted damage to the joint capsule and degenerative changes of the head.  The CI underwent left shoulder arthroscopy for instability repair in May 2004.  The orthopedic follow-up examination on 30 September 2005, showed tenderness of each shoulder without swelling or muscle atrophy.  Range of motion (ROM) of each shoulder was normal.  Right shoulder testing was positive for impingement and labral injury associated pain, without evidence of residual instability.  Left shoulder testing was negative for impingement or labral pain and positive for instability.  

Physical therapy measured ROM for the MEB on 7 November 2005, 4 months prior to separation.  Showed right shoulder forward flexion (FF) of 135 (normal 180) and abduction of 80 (normal 180) with painful motion noted.  Left shoulder FF was 135 degrees and abduction was 95 degrees with painful motion noted.  The 13 December 2005 MEB NARSUM examination, 2 months prior to separation, noted complaints of pain and instability of both shoulders.  Physical examination showed tenderness of both shoulders without muscle atrophy.  Left shoulder strength was normal and right was mildly decreased at 4/5.  

At the 29 January 2007 VA Compensation and Pension (C&P) examination, 11 months after separation, the CI reported daily pain and intermittent numbness of each upper extremity.  Although electrodiagnostic studies did not show neuropathy or neurogenic thoracic outlet syndrome, vascular studies had shown vascular thoracic outlet syndrome.  The CI denied flare-ups.  Physical examination showed the right and left shoulders were diffusely tender.  Circulation and strength of the upper extremities were normal.  Bilateral shoulder ROM in degrees after repetition was flexion of 145 and abduction of 115 with pain.  The examiner commented that functional impairment of both shoulders was “close to moderate,” without weakness, fatigability, or incoordination.  

The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the left and right shoulder conditions 10% each, coded 5201 (limitation of arm motion), based on the C&P examination, citing evidence of painful motion.  In considering these somewhat disparate ROM evaluations, the panel noted the physical therapy examination showed right shoulder abduction of 80 degrees and left shoulder abduction of 95 degrees.  However, the orthopedic examination, 1 month prior, and the post-separation VA examination both showed shoulder motion above shoulder level for each arm.  

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 orthopedic and VA examinations showed ROM above this level for each arm.  However, a 10% rating was justified for each shoulder with application of VASRD §4.59 (painful motion).  There was no malunion or recurrent dislocation of either humerus to justify a rating under the 5202 code (humerus, other impairment of); and no nonunion with loose movement of either clavicle to warrant the next higher 20% rating under the 5203 code (clavicle or scapula, impairment of).  There was therefore no higher rating than 10% supported for either shoulder 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 right shoulder and a disability rating of 10% for the left shoulder, each coded 5099-5003.  

Right Hip.  The panel considered if the right hip condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The hip condition was profiled, implicated by the commander’s statement and judged 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 right hip condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting right hip condition at the time of separation.  

According to the STR and MEB NARSUM the CI underwent surgery in October 2004 for right hip impingement with debridement of a labral tear and the femoral neck.  The orthopedic follow-up examination on 30 September 2005, showed tenderness of the right groin area and crepitus with ROM testing.  The hip was not subluxed or unstable and there was no muscle weakness.  Physical therapy’s right hip ROM study for the MEB, 4 months prior to separation, in degrees, showed flexion of 65 (normal 125), extension of 5 (normal 30), abduction of 25 (normal 45) and external rotation of 25 (normal 60) with painful motion.  Impairment was slight with walking due to fatigue and incoordination (slight limp).  The MEB NARSUM examination, 2 months prior to separation, noted complaints of chronic right hip pain and acquired hip deformity.  Physical examination showed tenderness without swelling or muscle atrophy and decreased strength with resisted flexion of 3/5.  

At the C&P examination the CI reported use of a cane due to pain.  Physical examination showed a limp favoring the right and tenderness of the groin and lateral hip.  Muscle strength was graded 5/5.  Hip ROM after repetition was flexion of 78 degrees, abduction of 30 degrees and external rotation of 60 degrees.  The examiner indicated the functional impairment of the hip was “slight plus” with walking due to fatigue and incoordination (slight limp).  

The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the right hip 10%, coded 5252 (limitation of thigh flexion), citing objective evidence of pain on motion.  The panel agreed that a 10% rating was supported based on extension limited to 5 degrees documented by the physical therapy ROM examination.  Painful motion with functional loss also supported a 10% rating (based on §4.59, §4.40 and §4.45).  There was no limitation of motion which supported a higher rating under the diagnostic codes for limitation of thigh flexion, extension or impairment (5251, 5252).  There was no evidence of hip ankylosis, flail hip joint or femur impairment (5250, 5254 or 5255) for a rating under the respective codes.  There was therefore no higher rating than 10% supported 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 right hip condition, coded 5299-5252.  

Left Knee.  The panel considered if the left knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The knee condition was profiled, implicated by the commander’s statement and judged 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 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.  

According to the STR and MEB NARSUM the CI’s left knee pain began in February 2003 while deployed, without specific trauma.  An MRI in February 2004 showed a “minor” meniscal tear and severe chondromalacia patella.  The CI was given a hinged knee brace that was helpful.  The physical therapy ROM study of the left knee for the MEB, 4 months prior to separation, showed flexion of 130 degrees (normal 140) and extension of 0 degrees (normal) with painful motion.  The MEB NARSUM examination, 2 months prior to separation, showed patellar crepitus and positive patellar grind.  There was medial and lateral joint line tenderness, but no evidence of instability or meniscal pathology.  

At the C&P examination the CI reported left knee arthroscopic surgery on 29 December 2006, 10 months after separation, for meniscal tear and nerve release with debridement.  The CI stated the knee gave way every day, but he did not fall down.  He was not using a brace.  He denied flare-ups.  Physical examination showed effusion and testing for meniscal pathology caused “some” lateral pain, but there was no evidence of instability.  Left knee ROM after repetition was flexion of 125 degrees “with complaint of pain at terminal flexion.”  The examiner commented that functional impairment of the knee was slight without weakness, fatigability or incoordination.  

The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the left knee 10%, coded 5260 (limitation of leg flexion), citing objective evidence of pain on motion.  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 5259 code (cartilage, semilunar, removal of, symptomatic) was applicable in this case, but the maximum 10% rating under that code provided no benefit to the CI.  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions to support a rating under that code.  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).  There was therefore no rating higher than 10% supported under any applicable VASRD 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 knee condition, coded 5299-5260.  

BOARD FINDINGS:  In the matter of the bilateral shoulder, right hip and left knee condition, the panel recommends that each joint be separately adjudicated as follows: an unfitting right shoulder condition rated 10%, coded 5099-5003, an unfitting left shoulder condition rated 10%, coded 5099-5003, an unfitting right hip condition rated 10%, coded 5299-5252 and an unfitting left knee condition rated 10%, coded 5299-5260, all 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	
Right Shoulder Pain	5099-5003	10%	
Left Shoulder Pain	5099-5003	10%	
Right Hip Pain	5299-5252	10%	
Left Knee Pain	5299-5260	10%	
COMBINED	40%	

AR20190006164, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX
	
	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to recharacterize 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 recharacterization 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.