RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
BRANCH OF SERVICE: ARMY
SEPARATION DATE: 20030820
NAME: XXXXXXXXXXXXXXXXXX
CASE NUMBER: PD12000597
BOARD DATE: 20121214
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SPC/E‐4 (88H/Transportation Cargo Specialist),
medically separated for asthma and chronic right shoulder and left knee pain. Asthma began in
approximately 1999. Right shoulder pain began as a consequence of repeated lifting in 2000
and required two surgical interventions. Left knee pain due to a fall in 1996 also required
surgery twice. None of the conditions responded adequately to treatment and she was unable
to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy
physical fitness standards. She was issued a permanent P3U3L3 profile and referred for a
Medical Evaluation Board (MEB). The MEB forwarded chronic left knee pain secondary to
saphenous nerve neuritis, chronic right shoulder pain secondary to degenerative joint disease
(DJD) and asthma to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40‐
501. Three other conditions, identified in the rating chart below, were also identified and
forwarded by the MEB. The PEB adjudicated asthma, exercise induced, as unfitting, rated 10%
with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD); and chronic
right shoulder and left knee pain as a single unfitting condition, rated 0% with likely application
of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals, and
was medically separated with a 10% disability rating.
CI CONTENTION: “My asthma is now chronic and the tendons and ligaments in my shoulder
have degenerated which gives me limited motion.”
SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI
6040.44, Enclosure 3, paragraph 5.e.(2) is limited to the conditions which were determined by
the PEB to be specifically unfitting for continued military service or when requested by the CI,
the condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for
unfitting conditions are reviewed in all cases. Any conditions or contention not requested in
this application, or otherwise outside the Board’s defined scope of review, remain eligible for
future consideration by the Army Board for Correction of Military Records.
RATING COMPARISON:
↓No Addi(cid:415)onal MEB/PEB Entries↓
20031004
20031004
20031004
1Initial VA decision rated at 10%, increased to 30% on 27 January 2005 based on service treatment record, effective 20030821
2VA decision 20050917 increased to 30% effective 20050215
3VA decision 20050917 added second knee code 5259‐5260 at 10%, effective 20050215; combined 80%
5215‐5024
0% X 4 / Not Service‐Connected x 4
Total Abdominal Hysterectomy
Left Wrist Disability
Combined: 10%
Combined: 70%
30%
10%
7618
Service IPEB – Dated 20030602
Condition
Asthma
Chronic Right Shoulder
and Left Knee Pain
Fibroid Uterus
Chronic Pelvic Pain
Hysterectomy
Code
6602
5099‐5003
Rating
10%
0%
Not Unfitting
VA (2 Mos. Post‐Separation) – All Effective Date 20030821
Condition
Restrictive Airway Disease
Right Shoulder Impingement
Left Knee
Code
6699‐6602
5203‐5201
5259
Rating
30%1
20%2
10%3
Exam
20031004
20031004
20031004
NO VA ENTRY
ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application
regarding the significant impairment and worsening severity with which her service‐incurred
condition continues to burden her. It is a fact, however, that the Disability Evaluation System
(DES) has neither the role nor the authority to compensate members for anticipated future
severity or potential complications of conditions resulting in medical separation. This role and
authority is granted by Congress to the Department of Veterans’ Affairs (DVA). The Board
utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI
6040.44 defines a 12‐month interval for special consideration to post‐separation evidence. The
Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES
fitness determinations and rating decisions for disability at the time of separation. Post‐
separation evidence therefore is probative only to the extent that it reasonably reflects the
disability and fitness implications at the time of separation.
Asthma Condition. During the 2 years prior to separation, the CI was treated with multiple
medication regimens without good relief of asthma symptoms. A permanent profile for no
running was required due to exercise‐induced bronchoconstriction. In 2001 she required three
courses of systemic steroids. At the narrative summary (NARSUM) addendum exam 4 months
prior to separation, the CI reported the need for rescue medication 3‐4 days per week despite
use of maintenance inhaled steroid medication. It was noted that the condition did not
prohibit her from managing activities of daily living, but running or excessive physical activity
caused fatigue or mild to moderate respiratory distress. Information on the use of systemic
steroids within the preceding year was not provided, nor were there pulmonary function test
(PFT) results within the prior 2 years. The assessment was: “Her asthma will require chronic
long‐term therapy for her to be able to function.” At the VA Compensation and Pension (C&P)
exam 6 weeks after separation, the CI reported asthma attacks approximately every 3 months.
She was unable to run or walk long distances due to shortness of breath. Use of any asthma
medication was not specified. PFT results showed an FEV1 of 79% of predicted and an
FEV1/FVC calculated ratio of 66%.
The Board directs attention to its rating recommendation based on the above evidence. A
compensable rating for asthma is predicated on the frequency of bronchodilator use, on the
use of systemic or inhaled steroids, or on PFT results. In this case there was no history of
respiratory failure or of daily systemic steroid or immunosuppressive medication requirement;
nor was there documented use of intermittent systemic steroids (at least 3 times per year) or
monthly visits for exacerbations during the 2 year period prior to separation. Therefore the
higher 60% or 100% ratings IAW 6602 criteria are not supported. The 10% rating requires
intermittent inhalational or oral bronchodilator therapy; the 30% rating requires daily
inhalational or oral bronchodilator therapy or inhalational anti‐inflammatory medication. The
PEB’s 10% rating was premised on intermittent requirement. Although the VA initially assigned
a 10% rating based on PFT interpretation, this was increased to 30% once review of the service
treatment record (STR) confirmed treatment with inhaled steroids. The STR indicated that
inhaled steroids were to be used on a daily basis. Board members agreed that the 30% rating
was not only justified by the use of inhaled steroids, but also by the FEV1/FVC ratio of 66%
calculated from the VA exam. After due deliberation, considering all of the evidence and
mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for
the asthma condition.
Chronic Right Shoulder and Left Knee Pain Condition. The PEB combined right shoulder and left
knee pain as a single unfitting condition, coded 5099‐5003. Although this approach complies
with AR 635.40 (B.24f.) the Board must apply separate codes and ratings
its
recommendations, if compensable ratings for each condition are achieved IAW VASRD §4.71a.
If the Board judges that two or more separate ratings are warranted in such cases, however, it
must satisfy the requirement that each ‘unbundled’ condition was unfitting in and of itself. Not
uncommonly this approach by the PEB reflects its judgment that the constellation of conditions
was unfitting and that there was no need for separate fitness adjudications, not a judgment
in
2 PD1200597
in this circumstance, with the caveat that
that each condition was independently unfitting. Thus the Board must exercise the prerogative
of separate fitness recommendations
its
recommendations may not produce a lower combined rating than that of the PEB.
Right shoulder pain was determined to be a result of rotator cuff impingement and partial tear.
Despite surgery on her right dominant shoulder in July 2001 and in March 2002, ongoing
physical therapy and repeated shoulder injections, she continued to suffer from shoulder pain.
There were three goniometric range‐of‐motion (ROM) evaluations
in evidence, with
documentation of additional ratable criteria, which the Board weighed in arriving at its rating
recommendation as summarized in the chart below.
Right Shoulder ROM
in degrees
Flexion (0‐180⁰)
Abduction (0‐180⁰)
Comments
§4.71a Rating
NARSUM ~4 Mos. Pre‐Sep Ortho ~3.5 Mos. Pre‐Sep
VA C&P ~6 Wks Post‐Sep
90
90
+Painful motion
20%
140
130
+Painful motion,
tenderness
10%
120
95
+Painful motion
10% or 20% (VA 20%)
The narrative summary (NARSUM) examination noted positive impingement sign testing.
Although trapezius muscle tenderness was present, shoulder joint tenderness was not. There
was no evidence of shoulder instability. Passive ROM testing showed flexion and abduction of
180 degrees. X‐rays revealed post‐surgical and degenerative changes. An orthopedic
examination on 1 May 2003 (3 months prior to separation) noted no shoulder laxity. At the
C&P exam 6 weeks after separation, the CI reported difficulty doing any overhead lifting due to
shoulder pain. Examination revealed restricted ROM due to pain only.
The Board directs attention to its rating recommendation based on the above evidence. The
PEB cited normal passive ROM in their 0% rating decision under an analogous 5003 code
(degenerative arthritis). The VA assigned a 20% rating, stating it most closely approximated the
overall picture. Regarding the right shoulder condition, there was a preponderance of evidence
that it was unfitting. Board members agreed that a 10% rating was easily supported based on
painful use (§4.40) or painful motion (§4.59), but considered a rating under the 5201 code. The
VASRD §4.71a threshold for compensable ROM impairment is “shoulder level,” i.e., 90 degrees.
The NARSUM exam documented that degree of limitation, but the orthopedic examiner
2 weeks later demonstrated motion clearly above this level. Meanwhile the VA examination
noted abduction just above the 90 degree plane, but better flexion. The Board debated this
evidence, and agreed that the clinical picture was more accurately depicted by the 10% rating.
After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable
doubt), the Board recommends a disability rating of 10% for the chronic right shoulder pain
condition.
Next, the Board turned its attention to the left knee. As previously elaborated, the Board must
first consider whether the chronic left knee pain remains separately unfitting, having de‐
coupled it from a combined PEB adjudication. In analyzing the intrinsic impairment for
appropriately coding and rating the left knee condition, the Board is left with a questionable
basis for arguing that left knee pain was indeed independently unfitting. The clinical record
offered little information about it during the year prior to separation. Although the CI
complained of knee pain after arthroscopic surgery for a meniscal tear, subsequent notes gave
conflicting information about the specific location and cause of pain; some referred to joint line
pain while others referred to pain below the level of the knee joint. X‐rays showed no evidence
of arthritis. The C&P examiner noted non‐painful, full ROM and a normal gait. It was noted
that the left knee was not specified in the commander’s statement, while aerobic exercise
restrictions on the physical profile were due to asthma. After due deliberation, the Board
3 PD1200597
agreed that the evidence does not support a conclusion that left knee pain, as an isolated
condition, would have rendered the CI incapable of continued service within her MOS and
accordingly cannot recommend a separate rating for it.
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. As discussed above, PEB
reliance on the USAPDA pain policy for rating right shoulder pain and left knee pain was
operant in this case and the conditions were adjudicated independently of that policy by the
Board. In the matter of the asthma condition, the Board unanimously recommends a disability
rating of 30%, coded 6602 IAW VASRD §4.97. In the matter of the chronic right shoulder and
left knee pain conditions, the Board unanimously recommends that they be adjudicated as two
separate conditions. In the matter of the right shoulder pain condition, the Board unanimously
recommends a disability rating of 10%, coded 5099‐5003. In the matter of the left knee pain
condition, the Board unanimously agrees that it cannot recommend a finding of unfit for
additional disability rating. There were no other conditions within the Board’s scope of review
for consideration.
RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as
follows and, that the discharge with severance pay be recharacterized to reflect permanent
disability retirement, effective as of the date of her prior medical separation:
UNFITTING CONDITION
VASRD CODE RATING
6602
5099‐5003
COMBINED
30%
10%
40%
Asthma
Chronic Right Shoulder Pain
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120605, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
SFMR‐RB
XXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
4 PD1200597
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXX, AR20130000105 (PD201200597)
1. Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed
recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR)
pertaining to the individual named in the subject line above to recharacterize the individual’s
separation as a permanent disability retirement with the combined disability rating of 40%
effective the date of the individual’s original medical separation for disability with severance
pay.
2. I direct that all the Department of the Army records of the individual concerned be corrected
accordingly no later than 120 days from the date of this memorandum:
a. Providing a correction to the individual’s separation document showing that the
individual was separated by reason of permanent disability retirement effective the date of the
original medical separation for disability with severance pay.
b. Providing orders showing that the individual was retired with permanent disability
effective the date of the original medical separation for disability with severance pay.
c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will
account for recoupment of severance pay, and payment of permanent retired pay at 40%
effective the date of the original medical separation for disability with severance pay.
d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and
medical TRICARE retiree options.
3. I request that a copy of the corrections and any related correspondence be provided to the
individual concerned, counsel (if any), any Members of Congress who have shown interest, and
to the Army Review Boards Agency with a copy of this memorandum without enclosures.
BY ORDER OF THE SECRETARY OF THE ARMY:
Encl
XXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
5 PD1200597
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