RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX		CASE: PD-2017-05791 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20070131

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Information Systems Operator-Analyst, medically separated for “low back pain” and “chronic pain left shoulder, bilateral knees and bilateral elbows” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  Review of all conditions requested. 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 – 20061212	VARD – 20070404 & 20071105	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Low Back Sprain with Disc Protrusion at L5-S1	5242	10%	

20070123	

Chronic Pain Left Shoulder, Bilateral Knees and Bilateral Elbows	

5099-
5003	

10%	Left Shoulder	5201-5010	10%		
			Right Knee Degenerative Joint Disease	5260-5010	10%		
			Left Knee Degenerative Joint Disease	5260-5010	10%		
			Right Elbow Epicondylitis and Olecranon Bursitis	5208-5024	10%		
			Left Elbow Epicondylitis Olecranon Bursitis	5208-5024	10%		
Obstructive Sleep Apnea (OSA)	Not Unfitting	Sleep Apnea	6847	50%		
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 80%	

ANALYSIS SUMMARY:

Chronic Low Back Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in 1983 after a lifting incident and repeated re-injury. An MRI in 2004 documented disc protrusion at L5-S1. Orthopedic, pain management, medication, and physical therapy (PT) did not relieve the CI’s back pain. During the 13 July 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported back pain. Physical examination revealed a normal gait with lumbosacral spine tenderness and decreased range of motion (ROM) due to pain. The 11 September 2006 MEB NARSUM examination, 5 months prior to separation, noted complaints of LBP. The examiner referred to his 21 August 2006 back ROM examination which documented forward flexion with “the right and left fingertips extending forward to the level of the tibial tuberosities bilaterally with the knee in full extension” (approximately 45-65 degrees of flexion). Extension was less than 5 degrees backwards (normal 30).  Lateral bending was measured at 7 degrees to the right  and
10 degrees to the left (normal 30). The 22 September 2006 PT thoracolumbar ROM measurements, 4 months prior to separation, showed flexion of 40 degrees (normal 90) and combined ROM of 125 degrees (normal 240) after three repetitions, limited by pain.

At the 23 January 2007 VA Compensation and Pension (C&P) examination, less than one month before separation, the CI reported daily 8-9/10 back pain with constant 4/10 pain. Physical examination showed a normal posture and gait and low back tenderness. ROM measurements showed flexion of 90 degrees and combined ROM of 240 degrees after repetition with pain on motion and facial grimace noted on all ROM. There was no change in ROM, no further pain, no weakness or increased pain was detected during repetitive movements during the examination. The 20 September 2007 C&P examination, 8 months after separation, documented observed forward flexion to 75 degrees with painful motion.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, coded 5237 (lumbar spine strain), citing ROM limited by pain; positive tenderness. The VA also rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing painful motion with tenderness of the lumbar spine. The panel deliberated the probative value of the disparate examinations in evidence. Although the limited flexion recorded on the NARSUM and PT examinations could support a 20% rating for forward flexion no greater than 60 degrees, the pre-separation C&P examination was closest to separation, most comprehensive, aligned best with the underlying pathology and remainder of the STR, and was therefore adjudged to have the highest probative value for rating at separation. The panel agreed that a 10% rating, but no higher, was justified for painful motion (and tenderness), as reported on the pre-separation C&P examination. There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis. There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula. 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 back condition.

Chronic Pain Left Shoulder, Bilateral Knees, and Bilateral Elbows. The PEB combined the left shoulder, bilateral knees and bilateral elbow conditions under a single disability rating, coded analogously to 5003 (degenerative arthritis) and rated 10% with application of the US Army Physical Disability Agency pain policy and AR 635-40 B24.f. 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 shoulder, bilateral knees and bilateral elbows conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Chronic Pain Left Shoulder. The right-handed CI had chronic left shoulder pain with complaints of worsening pain, impingement symptoms, and decreased ROM that led to an MRI in April 2005. MRI revealed severe degeneration of the acromioclavicular (AC) joint and a rotator cuff tear. Evaluation in May 2005 showed tenderness and pain limited ROM with impingement signs and the CI was diagnosed with rotator cuff tendonitis. An orthopedic specialist evaluation in September 2006 documented left shoulder pain-limited motion, tenderness, and an abnormal appearing clavicle; diagnosis was subacromial bursitis and AC joint synovitis. The CI subsequently underwent trigger point and AC joint injections.  He was not a surgical candidate.

During the 13 July 2006 MEB examination, 7 months prior to separation, the CI reported left shoulder pain. Physical examination revealed tenderness, pain-limited ROM and decreased left upper arm weakness. At the 11 and 21 September 2006 orthopedic MEB NARSUM examinations (including the 27 October and 23 November 2006 addendums), 5 months prior to separation, the CI complained of left shoulder pain aggravated by standing at parade rest or the use and wearing of military gear. The 13 July 2006 orthopedic ROMs (by the NARSUM author) demonstrated abduction to 95 degrees (normal 180) and flexion to 170 degrees (normal 180) and were cited by the NARSUM examiner. The 21 September 2006 NARSUM listed the same ROM values. The orthopedic examiner indicated that the CI had “chronic problems with his back, elbow, and shoulder with the shoulder causing him the most pain with a level of 6-8 at a maximum of 10.”

At the 23 January 2007 C&P examination, less than one month before separation, the CI reported left shoulder pain following a fall. He denied any dislocations or subluxations. Physical examination showed tenderness with flexion and abduction each to 100 degrees, and painful motion was present. Motor strength was normal. The 20 September 2007 C&P examination, 8 months after separation, the left shoulder and AC joint were tender with painful ROM of flexion to 150 degrees and abduction to 50 degrees.

The left shoulder condition was separately profiled, implicated by the NARSUM, separately noted as interfering with duty by the commander, and considered to fail retention standards (separately listed on the MEB). There was substantial underlying left shoulder pathology and numerous treatment notes for the shoulder. Panel members agreed the evidence reasonably justified that the functional limitations of the left shoulder condition contributed to the CI’s inability to perform his military duties; it was reasonably unfitting, and accordingly a separate disability rating is recommended for the left shoulder condition.

The panel agreed that the pre-separation C&P examination had the highest probative value for rating at separation (similar to the unfitting back condition above). 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. However, 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 and no dislocation or nonunion of the clavicle or scapula to justify a higher rating under the 5202 (humerus, other impairment) or 5203 (clavicle or scapula, impairment) codes.

Coding of 5203-5010 (clavicle or scapula, impairment [rotator cuff] - arthritis due to trauma) at 10% best described the left shoulder disability.

Chronic Pain Bilateral Knees. The CI had chronic bilateral knee pain with X-rays in February 2005 documenting bilateral degenerative changes in the patellofemoral and medial compartments. During the 13 July 2006 MEB examination the CI reported bilateral knee pain. Physical examination revealed tenderness, with painful flexion of both knees and painful extension of the left knee. At the 11 and 21 September 2006 orthopedic MEB NARSUM examinations (including the 27 October and 23 November 2006 addendums), the CI complained of bilateral knee pain and difficulty with walking, running, going up and down stairs, and carrying a load secondary to knee pain; without relief from PT or medications. Physical examination showed bilateral knee joint pain, patellofemoral tenderness, and crepitus. ROM (at the 27 October 2006 addendum, 3 months prior to separation) was 0-170 degrees (normal 0-140) symmetric bilaterally. The left knee had Grade I Varus laxity. The orthopedist’s diagnosis was bilateral knee osteoarthritis with pain as “mild to moderate and intermittent to frequent.”

At the C&P examination the CI reported 10/10 bilateral knee pain reduced to 5/5 with medication. Physical examination showed knees with ROM of 0-140 degrees (normal) with painful motion of both knees. At the 20 September 2007 C&P examination, 8 months after separation, the knees showed painful ROM of 0-110 degrees.

The bilateral knee condition was separately profiled (however both knees were considered together), implicated by the NARSUM, noted as interfering with duty by the commander, and considered to fail retention standards (bilateral knees listed separately on the MEB). There was underlying joint degeneration of each knee and some treatment notes for the knees. Panel members agreed the evidence reasonably justified that the functional limitations of the bilateral knee condition contributed to the CI’s inability to perform his military duties; it was reasonably unfitting, and accordingly a separate disability rating is recommended for the left shoulder condition. On considering if each knee were separately unfitting when separated from the other knee, 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 knee over the other. Since undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with the performance of military duties, members agreed that each knee was reasonably justified as separately unfitting.

The panel agreed, that as with the back condition above, the pre-separation C&P examination had the highest probative value for rating at separation. There was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261) for either knee. 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). A bilateral 10% rating under the provisions of 5003 was considered, but it was concluded that the MEB and pre-separation C&P examinations provided satisfactory evidence for painful motion of both knee joints; thus, separate joint ratings were indicated IAW §4.71a. The satisfactory evidence of painful motion with functional loss supported a 10% rating (based on §§4.59, 4.40 and 4.45) for each knee. Given the STR diagnosis of osteoarthritis for each knee coding of 5099-5003 was reasonable for each knee and although repetitive micro-trauma would allow coding analogous to 5010, there was no change in a 10% rating for each knee.

Chronic Pain Bilateral Elbows. During the 13 July 2006 MEB examination the CI reported chronic recurrent and constant bilateral elbow pain since 1998 that was treated with nonsteroidal anti- inflammatory  medications.    He  indicated  a  prior  diagnosis  of  olecranon  bursitis.    Physical

examination was silent regarding either elbow. The multiple MEB NARSUMs and addendums noted complaints of bilateral elbow pains on only some evaluations and there were no detailed elbow examinations with ROMs. Elbow pain was noted as “mild and intermittent.” The CI’s written appeal to the initial PEB did not mention bilateral elbow pain.

At the 23 January 2007 C&P examination, less than one month before separation, the CI reported 10/10 bilateral knee pain reduced to 5/5 with medication. Physical examination showed bilateral tenderness to the elbows with normal ROM and painful supination and pronation. At the 20 September 2007 C&P examination, 8 months after separation, the elbows showed tenderness with full ROM without painful motion.

The bilateral elbow condition was separately profiled (both elbows were considered together), implicated by the NARSUM, noted as interfering with duty by the commander, and considered to fail retention standards (bilateral elbows listed separately on the MEB). There was no underlying joint degeneration of either elbow, and no significant treatment notes for the elbows. The panel members concluded that the preponderance of evidence showed the bilateral elbow condition would not have caused the CI to be referred into the DES or to be found unfit.

The panel directed attention to its rating recommendation based on the above evidence. As noted above, the PEB bundled the left shoulder with the bilateral knees and bilateral elbows and applied a single 10% rating coded 5099-5003 citing the pain policy. The VA rated the left shoulder condition 10%, coded 5201-5010 (arm, limitation of motion-arthritis due to trauma) based on the C&P examination citing painful and limited motion. The VA rated the right and left knee each 10% and coded 5260-5010 (leg, limitation of flexion-arthritis due to trauma) based on the C&P examination citing painful or limited motion of a major joint. The VA rated the right and left elbow each 10% and coded 5208-5024 (forearm flexion limited to 100 degrees and extension to 45 degrees-tenosynovitis) based on the C&P examination citing painful or limited motion of a major joint. As detailed under each condition above, and after due deliberation and considering all the evidence, the panel recommends a disability rating of 10% for the left shoulder condition, coded 5203-5010; and a disability rating of 10% for the right knee condition and 10% for the left knee condition, each coded 5099-5003.

Contended PEB Condition: OSA. 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 profiled P3, implicated in the commander’s statement, and failed retention standards. The initial PEB found the OSA not unfitting with explanatory comments on compliance and long-standing performance. The reconsideration PEB also found the OSA condition separately not unfitting with explanatory comments. There was no performance-based evidence from the record that the OSA 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 back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication. In the matter of the bundled chronic pain left shoulder, bilateral knees and bilateral elbows condition, the panel recommends that it be adjudicated for four separate conditions: In the matter of the left shoulder condition, the panel recommends a separately unfit determination with a disability rating of 10%, coded 5203-5010 IAW VASRD §4.71a. In the matter of the bilateral knee condition, the panel recommends a separately unfit determination for each knee with a disability rating of 10% for each knee, coded 5099-5003 IAW VASRD §4.71a. In the matter of the bilateral (right and left) elbow condition, the panel agrees that it cannot recommend a finding of unfit for additional disability rating. In the matter of the contended OSA condition, 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; 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 Low Back Pain	5237	10%	
Chronic Pain Left Shoulder (Rotator Cuff Arthropathy)	5203-5010	10%	
Chronic Pain Bilateral Knees (Left Knee Osteoarthritis)	5099-5003	10%	
Chronic Pain Bilateral Knees (Right Knee Osteoarthritis)	5099-5003	10%	
Chronic Pain Bilateral Elbows	Not unfitting	
	COMBINED	40%	

AR20190010199, 

Dear XXXXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent 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 re-characterization of your separation as a permanent 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