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AF | PDBR | CY2012 | PD2012 00263
Original file (PD2012 00263.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1200263
BRANCH OF SERVICE: Army  BOARD DATE: 20130517
SEPARATION DATE: 20021121


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (88M/Motor Transport Operator) medically separated for bilateral wrist, shoulder, and ankle conditions. He developed bilateral wrist pain in 1997, was diagnosed with triangular fibrocartilage complex (TFC) tears, and underwent separate surgical interventions (ulnar shortening osteotomies) in 1998 and 1999. He developed bilateral shoulder pain in 1997, was diagnosed with impingement syndrome, and underwent separate surgical interventions (rotator cuff repair) in 1997. He had a history of bilateral ankle pain dating to 1997 which was diagnosed as osteoarthrosis (non-surgical), and which was associated with persistent chronic pain. None of these conditions could be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB). The wrist, shoulder and ankle diagnoses were submitted to the Informal Physical Evaluation Board (IPEB) as three separate bilateral conditions, each judged to be medically unacceptable IAW AR 40-501. No other conditions were submitted by the MEB. The IPEB consolidated the MEB submissions as a single unfitting condition, “chronic pain, both wrists, due to TFC tears, both shoulders, due to primary impingement post-surgery and both ankles, without radiographic confirmation of osteoarthritis;” rated 10%, referencing the US Army Physical Disability Agency (USAPDA) pain policy and with presumptive application of Army Regulation (AR) 635-40 (B.24 f.). Initially the CI made no appeals, but 2 months after the IPEB he requested a Formal PEB and continuation on active duty (also initiating a Congressional inquiry); both of which were denied. The CI made no further appeals, and was medically separated.


CI CONTENTION: “At the time of my separation I had 18 yrs, 10 mo., 14 days Active duty and 2l+years Federal Service. At that time I was eligible for Medical Retirement but was not granted so. I feel that my years of service should have played a role in the discharge decision and had a retirement granted. As the years roll on my disabilities grow worse and I will never be able to work again. I am now VA 70 %, Unemployable Compensated at I00%.”


SCOPE OF REVIEW: The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2). It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The rating for the unfitting chronic bilateral wrist, shoulder and ankle pain conditions are addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. 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 Board for Correction of Military Records (BCMR).

The Board acknowledges the CI’s assertion that he should have been offered retirement in consideration of his length of service; but, does not have the jurisdiction to offer remedy in reference to Service decisions of this nature. That authority resides with the BCMR. The Board further acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12 month interval for special consideration to post-separation evidence. Such evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.


RATING COMPARISON:

Service IPEB – Dated 20020213
 VA - Based on Service Treatment Records (STR)*
Condition
 Code Rating Condition Code Rating Exam
Chronic Pain [and Surgical Residuals], Both Wrists ... Both Shoulders ... Both Ankles
 5099-5003 10% Residuals, Right Wrist 5299-5215 10% STR
Residuals, Left Wrist 5299-5215 10% STR
Residuals, Right Shoulder 5299-5003 10% STR
Residuals, Left Shoulder 5299-5003 10% STR
Osteoarthrosis, Right Ankle 5010-5271 10% STR
Osteoarthrosis, Left Ankle 5010-5271 10% STR
No Additional MEB/PEB Entries
 0% X 2; Deferred X 5 STR
Combined: 10%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 200 21119 ( most proximate to date of separation [ DOS ] ).
* No post-separation VA evaluation until 20090713 (~7 yrs. post-separation).


ANALYSIS SUMMARY: The PEB combined 3 bilateral (potentially 6 unilateral) conditions under a single disability rating, coded analogously to 5003. Although the Veterans Affairs Schedule for Rating Decisions (VASRD) §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (Higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. To that end, the evidence for the bilateral wrist, bilateral shoulder, and bilateral knee conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate ratings as indicated. Since there is no post-separation evidence temporally probative to the date of separation, the Board’s recommendations will be premised exclusively on evidence from the service treatment record (STR).

Bilateral Wrist Condition. The STR documents bilateral wrist injuries from a vehicular accident in 1981, with a surgical repair (tendon) of the right wrist. There were sporadic complaints of wrist pain afterwards, but bilateral wrist pain re-emerged as a prominent complaint in 1996. An arthrogram in July 1998 diagnosed bilateral TFC tears. In attempt at surgical remedy, the CI underwent a left ulnar shortening osteotomy in September 1998; and the same procedure on the right in June 1999. He continued to suffer bilateral wrist and forearm pain, although his right forearm pain was partially relieved by surgical hardware removal in August 2001. He continued to undergo physical and occupational therapy, he was issued wrist braces to be used as needed, and he reported some improvement. He did not respond sufficiently to satisfy MOS demands, however; and, it appears that the wrist condition was the initial impetus for MEB referral. The narrative summary (NARSUM) noted pain rated at 5 out of 10 for all joints (also relevant to later discussions), and specified a lifting limitation of 10 pounds. It did not otherwise elaborate the severity and functional consequences. The commander’s performance statement (also relevant to later discussions) did not specify conditions, but rather documented that “Due to his disability [CI] cannot conduct proper preventive maintenance checks and services (PMCS) procedures and day to day maintenance on vehicles and equipment [and is] not able to carry out more advanced types of maintenance on vehicles, such as replacing a tire.” The physical exam noted bilateral ulnar tenderness TFC, pain with ulnar grind, normal neurovascular findings, and normal gross strength. An occupational health note from the STR documented normal grip strength by dynometry. The ranges-of-motion (ROM) measurements were equal for each wrist: extension 45 degrees (70 degrees normal), flexion 45 degrees (80 degrees), ulnar deviation 10 degrees (45 degrees), and radial deviation 15 degrees (20 degrees).

The Board directs attention to its rating based on the above evidence. The Board first considered if the bilateral wrist condition met the Board’s threshold for a separate rating as elaborated above. The profile specifically prohibited the carrying and firing of a rifle and lifting more than 10 pounds, reasonably attributable to the wrist condition; and, the attendant pain and limitation of motion would logically interfere with the CI’s daily MOS duties as mentioned in the commander’s statement. The member consensus was, therefore, that the condition was reasonably justified as separately unfitting and that it met VASRD §4.71a criteria for separate joint ratings. Furthermore, IAW VASRD §4.7 (Higher of two evaluations), the Board must consider separate ratings for PEB bilateral joint adjudications; although, again, separate fitness assessments must justify each disability rating. The point was deliberated that the non-dominant left wrist condition, as the sole impairment, would arguably not have necessitated medical separation. In this case, however, both wrists were affected by significant pathology and surgical residuals. Both were considered to fail retention standards, and both were profiled. The limitations noted in the NARSUM and commander’s statement could logically be ascribed to impairment of either or both wrists, although difficult to extricate from those that would have been imposed by the shoulder condition. Ultimately, member consensus was that each wrist should be conceded as separately unfitting; and, that coding and rating criteria were logically identical; and, the Board turned to deliberation of the most appropriate code and rating recommendations. The single code for limitation of motion at the wrist (5215) is maximally rated at 10%, which requires extension less than 15 degrees or flexion limited to 0 degrees for that rating. The only alternative joint code for the wrist requires ankylosis, which is clearly not applicable. Alternate analogous coding and rating under the criteria of 5003 (degenerative arthritis) is supported, but not advantageous. Although the fairly rigorous criteria of 5215 for compensable ROM impairment are not met in this case, application of either VASRD §4.59 (Painful motion) or §4.40 (Functional loss) would support the minimum 10% rating. Although painful motion was not explicitly documented as present or absent in the NARSUM or STR, it would reasonably be considered as intrinsic to the pathology; especially in light of the significant limitation of ROM that was in evidence. After due deliberation and with deference to VASRD §4.3 (Reasonable doubt), members agreed that the bilateral wrist condition, IAW VASRD §4.71a rating criteria and accepted principles for fitness determination, warrants recommendations for separate right and left disability ratings of 10% under VASRD code 5215.

Bilateral Shoulder Condition. The first STR entry for this complaint was April 1994, with a complaint of bilateral shoulder pain following a deployment to Somalia. The CI was initially treated for bursitis, but was ultimately diagnosed with bilateral impingement syndrome. Failing conservative measures, he underwent arthroscopic surgical interventions on the right shoulder in June 1997 and on the left in November of the same year. His shoulders and wrists remained on temporary profiles starting in 1998. Although the condition was included in the MEB evaluation, the last STR clinical entry related to the condition was in July 2000 (greater than 2 years prior to separation). The NARSUM noted “bilateral shoulder pain” as one of the chief complaints, but elaborated no specific acuity other than the entry for all joints as previously cited. Although the shoulders may have been implicated in the lifting restriction, no shoulder specific limitations (overhead work, etc.) were specified in the NARSUM or profile. The NARSUM physical exam did document some positive physical signs of shoulder impingement, but was otherwise normal. Normal bilateral ROMs of 180 degrees abduction and 180 degrees forward flexion were recorded.

The Board directs attention to its rating based on the above evidence. The Board first considered if the bilateral shoulder condition met the Board’s threshold for a separate rating. Some of the U3 profile limitations elaborated above for the wrists may have reflected shoulder impairment as well, but cannot be cleanly dissected in that regard. The same goes for the previously elaborated commander’s comments. Although the MEB examiner judged that the shoulder condition(s) failed retention standards, the Board must rely on performance-based evidence to support a recommendation that a condition is unfitting. The Board considered that the CI had been profiled since 1996 for the shoulder condition; he had apparently been fulfilling the requirements of his MOS during that period and there was no indication of significant worsening of the condition after post-surgical stabilization. All members agreed therefore that the bilateral shoulder condition was not reasonably justified as separately unfitting; and, accordingly the Board does not recommend separate disability rating for it.

Bilateral Ankle Condition. The first STR entries for this complaint were in 1994, relating a 2 year history of bilateral ankle pain. Initial X-rays and other imaging studies were normal, and right ankle pain was more dominant. An L2 profile for the latter was issued in November 2000. Bilateral ankle uptake was noted by bone scan in 1997, although X-rays remained normal. Magnetic resonance imaging of both ankles in October 2000 was normal. There are STR entries for continued conservative management, and an L3 profile for bilateral ankle pain was issued in December 2001. The L3 profile limitations were self-paced walking or running, and no marching. Although the CI remained able to meet physical fitness standards within the profile, the orthopedic consultant opined that continued stress to the joints would result in worsening damage. A July 2002 clinical entry declared that the CI was “unfit for duty [due to] bilateral ankle osteoarthrosis and pain;” and the condition was referred to the MEB. The NARSUM recorded “bilateral ankle pain, right greater than left” as one of the chief complaints; and noted, “He can currently walk and be on his feet for approximately one to two hours and then requires a break.” The physical exam noted mild bilateral anterior tenderness, no effusion, and no instability. Bilateral ROM measurements were dorsiflexion 20 degrees (normal), plantar flexion 45 degrees (normal), inversion 20 degrees (40 degrees normal), and eversion 10 degrees (30 degrees normal).

The Board directs attention to its rating based on the above evidence. The Board first considered if the bilateral ankle condition met the Board’s threshold for separate rating. The walking limitations specified in the NARSUM and profile carry obvious fitness implications, although the commander’s statement does not directly implicate the lower extremity limitations. The clinical opinion from the STR that the condition rendered the CI unfit and the MEB examiner’s judgment that it failed retention standards lent strong support to a conclusion that the ankle condition(s) was unfitting; although, it is performance criteria, not medical opinion, that underpin fitness determinations. The Board specifically considered the DoDI 1332.38 standard for determining unfitness due to physical disability or medical disqualification, specifying that a medical condition may be considered unfitting if the health of the member is threatened by continued service (E3.P3.2.2.1.); and, the evidence supports a conclusion that this was the case with the ankle condition. Member consensus was that the condition was reasonably justified as separately unfitting and not reasonably subsumed under a 5003 based rating with the other conditions. As per previous discussion, the Board then deliberated whether separate ratings for each joint were supported. The evidence makes it clear that the right ankle was associated with more disability than the left one in this case, and raised the question of whether the left ankle is reasonably justified as separately unfitting. The Board considered it was speculative to conclude that the disability confined to a single ankle would have rendered the CI incapable of performing his MOS; but, it is also found it reasonable to surmise that it was the overall effect of both ankles which rendered him unfit. Furthermore, the bilateral diagnosis met 5003 criteria for a single rating for “2 or more major joints;” and, member consensus was that there were insufficient grounds for recommending separate disability rating for each joint. After due deliberation, considering all of the evidence and with deference to reasonable doubt, the Board recommends a disability rating of 10% for the bilateral ankle condition. The action officer recommended, and the Board concurred with, the analogous code 5010 for its clinical compatibility.


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 and AR 635-40 for its rating determination was operant in this case; and, the Board’s recommendations are not subject to that guidance. In the matter of the service-combined bilateral wrist, shoulder, and ankle conditions, the Board unanimously recommends that it be rated for separate conditions as follows: with regards to the bilateral wrist condition, the Board unanimously recommends separate right and left disability ratings of 10% under VASRD code 5215; with regards to the bilateral shoulder condition, the Board unanimously agrees that it cannot recommend a finding of unfit for additional disability rating; and with regards to the bilateral ankle condition, the Board unanimously recommends a disability rating of 10%, coded 5010-5003 IAW VASRD §4.71a. 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 his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Surgical Residuals, Left Wrist
5215 10%
Surgical Residuals, Right Wrist
5215 10%
Surgical Residuals, Bilateral Shoulders
 Not Unfitting
Osteoarthrosis, Bilateral Ankles
 5010-5003 10%
COMBINED w/ BLF
 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120312, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130012161 (PD201200263)


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 30% 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 30% 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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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