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AF | PDBR | CY2013 | PD-2013-02794
Original file (PD-2013-02794.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD-2013-02794
BRANCH OF SERVICE: Army  BOARD DATE: 20150506
SEPARATION DATE: 20060920


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Health Care Specialist) medically separated for right knee pain, left shoulder pain, and migraine headaches. These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. The CI was authorized to perform an alternate physical fitness test (per PROFILE). He was issued a permanent P3/U3/L3 profile and referred for a Medical Evaluation Board (MEB). The “chronic right knee pain,” “left (non-dominant) shoulder” and “chronic migraine headache,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition (back pain) for PEB adjudication. The Informal PEB (IPEB) adjudicated his right knee, left shoulder, and migraine headaches as unfitting. The IPEB rated his knee at 10% citing application of the US Army Physical Disability Agency (USAPDA) pain policy and his shoulder at 0%, but did not rate his headaches, which they found existed prior to service (EPTS) without service aggravation. The remaining condition (back pain) was determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “Was also diagnosed with Epstein Barr and Hepatitis Non A Non B when stationed at BAMC Fort Sam Houston in 1991. Right leg has continued to worsen have continued to have increased swelling and edema in right knee, calf, and foot to the extent of skin separation and lacerations. Also, weakness, numbness and extreme pain in right foot and sensation of walking on needles. Have had to have numerous ultra sounds and MRI’s. Complete tear in left rotator cuff whereas before 75% tear documented. Continued pain and lessened use and range of motion. Placed on permanent restrictions as to use of my arm and activities able to perform.”


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’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/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board 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, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


 RATING COMPARISON :

IPEB – Dated 20060801
 VA* - Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Pain of the Right Knee… 5099-5003 10% Residuals, Right Knee Medial Meniscus Tear 5299-5262 10% STR
Chronic Left Shoulder Pain… 5003 0% Residuals, Left Shoulder Rotator Cuff Tear 5299-5203 0% STR
Migraine Headaches… 8100 ---% Migraine Headaches 8100 - STR
Other x 1 (Not In Scope)
 Other x 1
RATING: 10%
 RATING: 10%
* Derived from VA Rating Decision (VA RD ) dated 200 70831 (most proximate to date of separation [ DOS ].


ANALYSIS SUMMARY:

Right Knee. The CI injured his right knee when he hit it against an ambulance door and landed on the knee in September 2005. Initial magnetic resonance imaging (MRI) suggested a tear of the medial meniscus (cartilage) and a mild tear of the medial collateral ligament (MCL). After physical therapy (PT), follow-up imaging showed mild thickening of the MCL ligament, but normal joint surfaces.

At the narrative summary (NARSUM) evaluation on 14 April 2006 (5 months prior to separation), the CI reported that the knee pain was constant and worse with weight bearing. He complained of swelling, popping and catching. Examination showed use of a hinged knee brace and ambulation with an antalgic gait. Diffuse right knee tenderness was present. All ligaments were stable to testing and evidence of meniscal tear was absent. The MEB examiner on 11 May 2006 (4 months prior to separation) noted “limited range of motion due to pain” in the right knee, but range-of-motion (ROM) measurements were not performed.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Knee ROM
(Degrees)
Ortho ~6 Mo s . Pre-Sep		 MEB ~5 Mo s . Pre-Sep
Flexion (140 Normal) 95 90
Extension (0 Normal) -5 -10
Comment “Walks with a stiff knee” +Antalgic gait
§4.71a Rating 0% or 10%* 10%
invalid font number 31502 *Conceding §4.40 (functional loss) or §4.59 (painful motion)

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating analogously to 5003 (degenerative arthritis) while the VA also rated the condition at 10% based on the STR, using an analogous 5262 code (tibia and fibula, impairment of). While there was sufficient evidence of painful motion (§4.59), a 10% rating was also warranted based on the degree of limited extension reported by the NARSUM examiner. The Board considered the 5257 (knee, other impairment of: recurrent subluxation or lateral instability) and 5258 (cartilage, semilunar, dislocated) codes, but concluded there was insufficient clinical evidence to warrant these rating options. The Board likewise agreed there was no evidence of malunion of the tibia or fibula to support a rating under the 5262 code. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right knee pain condition.

Left Shoulder. According to the NARSUM examiner, the CI’s left shoulder pain began 3 weeks previously after moving furniture, and was not improving. A subsequent MRI study showed degenerative supraspinatus tendinosis and an incomplete tear. Mild degenerative arthritis was also noted. The NARSUM examination showed pain-limited ROM of the left shoulder. A NARSUM addendum on 8 May 2006 (4 months prior to separation) concluded that the shoulder condition was medically acceptable for continued service. However, on 5 June 2006 it was determined that persistent pain and the development of adhesive capsulitis (“frozen shoulder”) rendered the CI’s shoulder medically unacceptable.

The permanent profile on 13 June 2006 allowed for unlimited swimming. On 12 July 2006 (2 months prior to separation), the CI reported that he fell down four steps the previous day. Persistent limitation of shoulder motion was thought to be secondary to adhesive capsulitis. At an orthopedic follow-up on 14 August 2006, the CI denied that the left shoulder felt like it would slip out of place.

Left Shoulder ROM
(Degrees)		 MEB ~5 Mos. Pre-Sep Ortho ~2 Mos. Pre-Sep Ortho ~1 Mo. Pre-Sep PT ~1 Mo. Pre-Sep
Flexion (180 Normal) 90 Not performed 30 85
Abduction (180) 90 20 Not performed 80
Comments +Painful motion +Painful motion +Painful motion
§4.71a Rating 20% 3 0% 20% 20%

The Board directed attention to its rating recommendati on based on the above evidence. The PEB assigned a 0% rating under the 5003 code (degenerative arthriti s), while the VA also rated at 0% but used an analogous 5203 code (clavicle or scapula, impairment of). The VA later increased the rating to 2 0% based on a C&P exam 4 years after separation, and not probative to the time of separation. The VASRD §4.71a threshold for compensable ROM impairment is “at shoulder level” (90 degrees from the side), and the ROM in evidence demonstrated motion at or below this level. The highest 30% rating for a non-dominant arm requires motion limited to “25 degrees from side.” While one exam ( 2 months prior to separation) showed ROM less than this threshold, no other exam showed this degree of limitation. The Board assigned preponderant probative value to the PT exam a month prior to separation since it was most proximal to separation. This examination reflected the 20% criteria and was consistent with all other available evidence . T here was no route to a higher rating under the 5202 (other impairment of humerus with r ecurrent dislocation) or 5203 (clavicle or scapula, impairment of) code s . After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic left shoulder pain condition , coded 5201 (arm, limitation of motion of) .

Migraine Headache. The requested migraine headache condition is eligible for Board review to the extent that, although the Board does not have the authority to recommend a reversal of the service EPTS determination, by precedent and prior legal/administrative opinion; it may review the fairness of the PEB’s judgment that there was no permanent service aggravation. Should the majority of members agree that there was permanent service aggravation, a disability rating IAW the VASRD, with or without a deduction IAW VASRD §4.22 (Rating of disabilities aggravated by active service), will be recommended.

After being mobilized in March 2005, the CI reported a history of chronic migraine, and that he was followed by a neurologist for the previous 2 years. Because treatment included maintenance narcotic pain medication, the CI was removed from active duty. However, he was again activated in September 2005 despite still taking maintenance narcotics. According to the NARSUM examiner, the CI suffered from migraine headaches “all his life.” At a neurology follow-up on 18 April 2006 (5 months prior to separation) the CI reported that being on maintenance narcotic medication resulted in his headache condition being “under the best control that it has been in years.” Nevertheless, he continued to experience daily moderately severe headaches, and intermittent, incapacitating severe headaches that could last days. In July 2006 the CI required a course of oral steroids to break a recent headache cycle. At follow-up in September 2006, the treatment was noted to help “immensely.” Headaches were considered to be relatively well controlled at that time.

The Board directed attention to its rating recommendation based on the above evidence. The PEB and VA applied the 8100 code (Migraine), and both concluded that the condition EPTS and was not permanently aggravated by service. The Board’s main charge with respect to its recommendation is an assessment of the fairness of the PEB’s determination that there was no permanent service aggravation of this EPTS condition. All members agreed that the evidence supports the PEB’s position. The record clearly shows the condition pre-existed active duty. Board members concluded that the description of migraines as being “under the best control that it has been in years” was unequivocally inconsistent with permanent service aggravation. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s determination that the migraine headaches condition existed prior to service and was not permanently aggravated by service; thus, it is not subject to service disability compensation.


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 chronic right knee pain was operant in this case and the condition was adjudicated independently of that policy by this Board. In the matter of the chronic pain of the right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the chronic left shoulder pain condition, the Board unanimously recommends a disability rating of 20%, coded 5201 IAW VASRD §4.71a. In the matter of the contended migraine headaches condition, the Board unanimously recommends no change in the PEB adjudication. 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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION VASRD CODE RATING
Chronic Pain of Right Knee 5099-5003 10%
Chronic Left Shoulder Pain 5201 20%
Migraine Headaches 8100 ---%
COMBINED 30%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20132794, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record


XXXXXXXXXXXXXXXXXX
 President
Physical Disability Board of Review






SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXXX , AR20150012826 (PD201302794)


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                                                  XXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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