RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: BRANCH OF SERVICE: army

CASE NUMBER: PD1100165 SEPARATION DATE: 20081230

BOARD DATE: 20120222

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was National Guard SGT/E-5 (92A/Automated Logistical Specialist), medically separated for a right shoulder condition and a right knee condition. The CI injured his right shoulder multiple times and injured his right knee (anterior cruciate ligament) both requiring surgical repair for definitive treatment. He underwent aggressive physical therapy before and after all procedures, but did not respond adequately to fully perform within his Military Occupational Specialty (MOS) or meet physical fitness standards. He was issued a permanent P2 U3 L3 profile and underwent a Medical Evaluation Board (MEB). Chronic right shoulder pain and chronic right knee pain were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Four other conditions, as identified in the rating chart below, were forwarded on the MEB submission as medically acceptable conditions. No other conditions appeared on the MEB’s submission. The PEB adjudicated the right shoulder condition and right knee condition as unfitting, rated 10%, respectively, with application of the Veterans Administration Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated with a 20% combined disability rating.

CI CONTENTION: The CI states: The previous Medical Review Board (MRB) stated that sleep apea (sic) is not unfitting for military duty, but I failed SRP (2007 mobilization screening for IRAQ) automatically due to having sleep apea. Before the 2008 MRB, in 2005 and within 12 months of my release from active duty, I received a disability rating of 60% from the Department of Veterans Affairs (DVA); sleep apea (50%) and right knee and right shoulder (combined 10%). As of August 10, 2010 my disability rating was raised to 70% (additional 10% for left shoulder). Additionally, my motor vehicle accident (MVA) documentation (within the 2003-2005 time period) was not considered for my neck, because the information was not sent for MRB review. I was unaware that the MVA documents were not sent, and thus, were not considered during my MRB. For these reasons, no rating for sleep apea and missing MVA documentation, I feel that my disability retirement and service connected rating should be revisited.

RATING COMPARISON:

*VA Rating Decision and VA C&P examination were in March 2006 and December 2005, respectively. CI was first released from active duty back to the National Guard 3 years prior to his date of medical separation. The effective date of his impairment is the day after his separation from active duty on 20050628.

ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests service ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. Additionally, the Board recognizes the CI’s contention that missing documents related to his motor vehicle accidents may have influenced the rating recommendation of the PEB at the time of medical separation. The Board must emphasize that its recommendations are premised on severity at the time of medical separation from the service. This implies that the Board assigns the highest probative value to the evidence most proximate to the time of medical separation to the extent that it reasonably reflects the disability and fitness implications at the time of separation. In this case, the Board puts higher probative value on the narrative summary (NARSUM) examination done six months prior to separation to determine the CI’s permanent rating at separation. This does not mean that the evidence from other sources was disregarded, as it was a source of clinical information and opinions relevant to the Board’s decision-making; however, most of this information was outside of the 12-month interval used by the Board in its probative determinations.

Right Shoulder Condition. The MEB NARSUM documented a history of chronic right shoulder pain with limited range-of-motion (ROM) when overhead reaching. The exam documented normal symmetric shoulders with no atrophy, normal strength and a normal neurological exam without fasciculations. The examiner documented positive provocative testing for impingement but negative for a rotator cuff tear. Plain radiographs of the right shoulder were normal with no evidence for fracture, dislocation, or soft tissue abnormality. The VA Compensation and Pension (C&P) right shoulder exam documented a normal appearing shoulder joint with noncompensable limited ROM, likely from pain with no additional pain upon repetitive use. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

*IAW §4.59 painful motion

The Board directs its attention to its rating recommendations based on the evidence just described. The VA coded the condition 5201 (arm, limitation of motion of), rated as 10% effective 29 June 2005 in a C&P exam on 7 December 2005. The Board notes all of his shoulder surgeries occurred prior to this decision and since then the CI has not had any further injuries or surgeries. Therefore, the worsening ROMs seen in the MEB exam can be best described as progression of his right shoulder disease. The Board noted the future VA rating decisions in evidence up to two years post separation did not change the right shoulder rating. The PEB coded analogously to 5003 (degenerative arthritis), rated at 10%, based on non-compensable limitation of motion of one major joint. There was no clinical and/or radiologic evidence in the examinations completed proximate to separation that suggested ankylosis, loss of the humeral head, nonunion, malunion, fibrous union, deformity, nonunion or dislocation of the scapula, or recurrent dislocations of the humerus that would have justified any code with higher rating potential. All evidence considered there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s coding or rating decision for the shoulder condition.

Right Knee Condition. The MEB NARSUM documented a history of subjective chronic right knee pain with noncompensable decrease in ROMs. The knee exam demonstrated a normal motor, neurologic and vascular exam noting specifically negative provocative ligament and meniscal testing. Plain radiographs of the right knee showed evidence for post surgical changes and degenerative changes. The NARSUM examiner described as part of the CI’s current condition that he is “unable to run due to his chronic knee pain and arthrofibrosis.” The VA C&P right knee exam documented pain limited motion with flexion with increasing pain with repetitive use, a keloid scar on the anterior knee and normal provactive testing for ligament and meniscal disease. The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

The Board directs its attention to its rating recommendations based on the evidence just described. The VA coded the condition 5260 (leg, limitation of flexion of), rated as 10%, based on the presence of painful motion (DeLuca) effective 29 June 2005 in a C&P exam on 7 December 2005. The Board notes all of his knee surgeries occurred prior to this decision and since then the CI has not had any further injuries or surgeries. The Board noted the future VA rating decisions in evidence up to two years after separation did not change the right knee rating. The PEB coded analogously to 5003 (degenerative arthritis), rated at 10% based on evidence of arthritis with application of §4.59 (painful motion) IAW VASRD §4.71a despite the lack of painful motion in the MEB. The PEB also cited 5261 (leg, limitation of extension of) on the DA Form 199 presumably to define the functional impairment of extension in play for this condition. Based on the evidence at separation the Board considered the extension limited to five degrees which warrants a 0% rating under 5261, the non-compensable ROM painful motion impairment for flexion which warrants a 10% rating under 5260 and finally the PEB’s analogous coding of this condition to 5003 which did not increase the rating. There was no clinical and/or radiologic evidence that suggested subluxation or lateral instability; frequent episodes of locking, pain, or effusion; ankylosis; or nonunion/malunion of the tibia or fibula that would have justified any alternate knee code with higher rating potential than the 10% determined by the Board at the time of separation. All evidence considered there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s coding or rating decision for the knee condition, except to clarify that analogous VASRD code 5099-5003 is the code favored by the Board for this condition.

Other PEB Conditions. The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB were sleep apnea (OSA), neck pain, hypertension, and seasonal allergies. The Board’s main charge in respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudication. The Board’s threshold for countering DES fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The CI’s OSA was diagnosed by a sleep study in March 2005 after a routine referral for history of snoring, witnessed apneic episodes, and daytime drowsiness. At the same time, he was titrated for a continuous positive airway pressure (CPAP) device and on a follow-up in February 2006 was noted to have a good response to the CPAP. The CI noted in his contention that he failed SRP (soldier readiness processing 2007 mobilization screening for Iraq) automatically due to having sleep apnea. In reviewing the department of the Army personnel policy guidance for overseas contingency operations, it states in the section on medical fitness standards that personnel with existing medical conditions may deploy if four conditions are met, the third of those conditions is that “any required ongoing health care or medications must be immediately available in-theater within the military health system, and have no special handling, storage, or other requirements (e.g., cold chain, electrical power required).” Thus, the reason for the failed SRP was related to an inability to meet administrative contingency requirements for deployment as opposed to meeting service medical requirements for fitness.

Routinely, OSA is not considered unfitting solely on the basis of field and operational impediments to the use of CPAP. There is no evidence in this case that OSA was associated with any functional impairment not corrected by CPAP which correlated with his P2 profile for this condition. The PEB’s fitness adjudication was therefore expected and reasonable. The CI’s neck pain resulted from motor vehicle accidents in 2004 and 2005. Radiological and clinical examinations in the records of evidence were essentially normal. The CI was screened for hypertension in 2005, but there was no evidence that he required treatment for this condition. A normal blood pressure on the MEB history and physical validated that his blood pressure was normal proximate to the time of separation. Lastly, the CI had a history of and was being treated for seasonal allergies at the time of separation. Neck pain, seasonal allergies, and hypertension were not profiled or noted as failing retention standards. All were reviewed by the action officer and considered by the Board. There was no indication from the record that any of these conditions significantly interfered with satisfactory duty performance. All evidence considered there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB fitness adjudication for any of the stated conditions.

Remaining Conditions. No other conditions were noted in the NARSUM, identified by the CI on the MEB physical, or found elsewhere in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES. No other conditions were service connected with a compensable rating by the VA within 12 months of separation or contended by the CI. The Board therefore has no reasonable basis for recommending any additional unfitting conditions for separation rating.

BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the right shoulder condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the OSA, neck pain, hypertension, and seasonal allergies, the Board unanimously recommends no change from the PEB adjudications as not unfitting. The Board unanimously agrees that there were no other conditions eligible for Board consideration which could be recommended as additionally unfitting for rating at separation.

RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110326, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans Affairs Treatment Record

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation and hereby deny the individual’s application.

This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

BY ORDER OF THE SECRETARY OF THE ARMY:

Encl

Deputy Assistant Secretary

(Army Review Boards)