XXXXXXXXXX

Dear XXXXXXXXXX:

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.

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX	CASE:  PD-2017-05094
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060522

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Helicopter Repairer, medically separated for “chronic pain, right shoulder [and] left knee,” with a disability rating of 10%.  

CI CONTENTION:  “Rated 100% by VA.”  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 -20060503	VARD - 20061103	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Shoulder [and] Left Knee 	5099-5003	10%	Traumatic Arthritis, Right Shoulder	5010	10%	20060715	
			Traumatic Arthritis Left Knee	5010-5260	10%	20060715	
Moderate to Severe Obstructive Sleep Apnea 	Not Unfitting	Sleep Apnea	6847	50%	20060715	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY: 

Chronic Pain, Right Shoulder and Left Knee.  The PEB combined the right shoulder and left knee conditions as a single unfitting condition coded analogously to 5003 (arthritis, degenerative) and rated 10%, citing the US Army Physical Disability Agency pain policy.  The 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 also 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 the PEB’s approach of 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 right shoulder and left knee conditions is presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Chronic Pain, Right Shoulder.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent right shoulder surgery in April 2005 with SLAP (superior labrum anterior and posterior) repair, open Bankart repair and distal clavicle excision.  The surgery did not provide pain relief.  At the 14 March 2006 MEB physical therapy (PT) range of motion (ROM) examination, 2 months prior to separation, right shoulder flexion and abduction were both 150 degrees (normal 180) with painful motion.  The 23 March 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of frequent right shoulder pain with inability to perform overhead work or heavy lifting.  Physical examination showed slightly decreased motor strength (4/5) of the right biceps with internal rotation, external rotation, abduction and drop arm; strength was otherwise normal (5/5).  Impingement testing elicited painful motion and apprehension testing caused right shoulder pain, but there was no sensation of an impending dislocation.

At the 15 July 2006 VA Compensation and Pension (C&P) examination, 2 months after separation, the CI reported constant right shoulder pain and stiffness.  Right shoulder X-rays suggested a osteochondroma and a posttraumatic arthritic osteophyte.  The ROM examination showed right shoulder flexion of 120 degrees and abduction of 110 degrees with pain, but no additional ROM loss due to repetition.

The panel first considered if the right shoulder condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The right shoulder was profiled, implicated by the commander and judged by the MEB to fail retention standards.  Panel members agreed that the evidence reasonably justified that the functional limitations of the right shoulder contributed to the CI’s inability to perform his military duties and was reasonably separately unfitting.  Therefore, the panel recommends a separate disability rating.

The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the right shoulder condition 10%, coded 5010 (arthritis due to trauma) based on the C&P examination, citing painful motion.  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 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 fibrous union or nonunion of the humerus (5202) to support a higher rating.  Although an alternative 10% rating under code 5203 (clavicle or scapula, impairment) was considered, this offers no rating benefit to the CI.  After due deliberation, and considering all the evidence, the panel recommends a separately unfit determination with a disability rating of 10% for the right shoulder condition, coded 5099-5010.

Chronic Pain, Left Knee.  According to the STR and MEB NARSUM, the CI underwent, in June 2000, a partial patellectomy with bone grafting.  He subsequently underwent left anterior cruciate ligament (ACL) reconstruction and medial meniscal repair in September 2001.  The CI sustained a left patellar dislocation in September 2003, but continued to perform profile-limited duties.  

The 14 March 2006 MEB PT ROM examination showed left knee flexion of 120 degrees (normal 140) and extension of 0 degrees (normal) with painful motion.  The 23 March 2006 MEB NARSUM examination, 2 months prior to separation, noted complaints of continued left knee pain.  Physical examination showed no effusion or tenderness.  Instability (ligament and patella) and meniscus impingement testing were negative, but the patella grind test was positive.

At the 15 July 2006 VA C&P examination, 2 months after separation, the CI reported left knee pain and instability.  X-rays showed left patellofemoral joint degenerative arthrosis.  Physical examination showed no left knee instability.  Left knee ROM testing showed pain-limited flexion of 120 degrees and extension of 0 degrees.  There was no additional ROM loss due to repetition.

The panel 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, implicated by the commander and judged by the MEB to fail retention standards.  Panel members agreed the evidence reasonably justified that the functional limitations of the left knee contributed to the CI’s inability to perform his military duties and was reasonably separately unfitting.  Therefore, the panel recommends a separate disability rating.

The panel directed attention to its rating recommendation based on the above evidence.  The VA rated the left knee condition 10%, dual coded 5010-5260 (traumatic arthritis causing limitation of let flexion), based on the C&P examination, citing painful motion.  The panel agreed there was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) 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).  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 also applicable in this case, and provided an alternate 10% rating, but offers no rating benefit IAW §4.14 (avoidance of pyramiding; more than one rating based on the same “pain” impairment is prohibited).  There was therefore no higher rating than 10% available under any applicable VASRD code.  After due deliberation, and considering all the evidence, the panel recommends a separately unfit determination with a disability rating of 10% for the left knee condition, coded 5010-5260.  The panel noted the MEB diagnosis of “posttraumatic arthritis,” which was determined to be medically acceptable, was subsumed under the right shoulder and left knee conditions and was not separately compensable IAW VASRD §4.14.  

Contended PEB Condition:  Moderate to Severe Obstructive Sleep Apnea.  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, implicated in the commander’s statement or judged to 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 bundled right shoulder and left knee condition, the panel recommends that each joint be separately adjudicated as follows: an unfitting right shoulder condition coded 5099-5010  and rated 10%, and an unfitting left knee condition, coded 5010-5260 and rated 10%, both IAW VASRD §4.71a.  In the matter of the contended obstructive sleep apnea, the panel agrees it cannot recommend it for additional disability rating.  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	
Chronic Pain, Right Shoulder  	5099-5010	10%	
Chronic Pain, Left Knee  	5010-5260	10%	
COMBINED	20%