RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX		BRANCH OF SERVICE: army
CASE NUMBER:  PD0900207		BOARD DATE: 20091021	
SEPARATION DATE: 20060721
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SUMMARY OF CASE:  This covered individual (CI) was a SGT military policeman medically separated from the Army in 2006 after 10 years of service.  The medical basis for the separation was chronic left knee pain and chronic back pain following fusion of two lower spine segments (L5-S1).  The CI sprained his left knee in Sep 1997 and reinjured the knee in 1998.  X-rays showed a bone bruise.  The CI had pain on and off through 2002, and was then diagnosed with ligament tears and subsequent diagnosis of stress fracture in 2003. MRI in Apr 2003 confirmed ligament tear, cartilage tear, and scar tissue.  The CI underwent arthroscopic surgery in Aug 2004 and extensive rehabilitation.  However, CI had left knee pain and could not run more than half a mile before his knee swelled-up if he had to carry more than 40 pounds.  In Dec 2005 Orthopedics determined that the CI was not a surgical candidate.  The CI injured his back in 2004 while serving as a physical therapy (PT) technician and moving a patient.  The CI was treated conservatively, but in Jun 2005, he experienced numbness and shooting pain down his left leg.  An MRI showed degenerative disc disease with neuroforaminal narrowing at L5-S1.  The CI then experienced an episode of extreme numbness and weakness in both legs that led to surgical fusion of L5-S1 in Feb 2006.  Further non-surgical therapy failed to alleviate the CI's lower back and left knee symptoms.  CI was referred to the PEB, found unfit and separated at 20% disability.  
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CI CONTENTION:  The CI contends that he had not received optimum care and an untimely PCS exacerbated his knee and back conditions.  The CI highlights his EMG, significant pain and functional limits, need for post surgical spine fusion readmission, as well as his higher VA ratings.  The petition wording is also accompanied by a multi-page supporting memo.  
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RATING COMPARISON:  

Previous Determinations 	
Service	VA  (Exam 10 months post-discharge)	
PEB Condition	Code	Rating	Date	Condition	Code	Rating	Exam Date	Effective date	
CHRONIC BACK PAIN 
(MEB Dx 1-2) 	5241	10%	20060705	INTERVERTEBRAL DISC SYNDROME  AND DEGENERATIVE DISC
DISEASE, THORACIC SPINE	5243-5242	20%	20070509	20060722	
				SCIATIC NERVE WEAKNESS, LEFT LOWER EXTREMITY	8520	20%	20070509	20060722	
				NERVE WEAKNESS, RLE		NSC			
CHRONIC LEFT KNEE PAIN (MEB Dx 2-2)	5009-5003	10%	20060705	S/P ARTHROSCOPY, LEFT KNEE (CLAIMED AS PRE-POST SURGERY & LEFT KNEE ARTHRITIS)	5024
then
5261	10%
then
30%	20070509

20080521 thru
20080528	20060722
then
20080118

				LEFT KNEE/LEG LAXITY ASSOCIATED WITH S/P ARTHROSCOPY, LEFT KNEE	5257	10%	20080521 thru  20080528	20080118	
NO DA 3947 ENTRIES	3 CONDITIONS: (RIGHT AND LEFT PLANTAR FASCIITIS AND PES PLANUS; TINNITUS)		10%			
	SURGICAL SCARS LEFT KNEE, LUMBAR SPINE	7802	0%	20070509	20060722	
	11 CONDITIONS: (RIGHT KNEE; HEPATITIS; ANEMIA; MESENTERIC LYMPHADENITIS; PFB; DEPRESSION; PTSD; IBS; HEMORRHOIDS; HEADACHES; ADJUSTMENT DISORDER)		NSC			
TOTAL Combined:  20%	TOTAL Combined (incl non-PEB Dxs):   60% from 20060722
                         (Bilateral factor 4.2% for 5284,5024, 8520, 5284)                                                                 
                                                                         80% from 20080118
                         (Bilateral factor 6.0% for 5284,5261, 8520, 5284, 5257)                                                	
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ANALYSIS SUMMARY:  The CI was on limited duty outside his PMOS of military police K-9 and working as a physical therapy technician due to repeated left knee injury and pain following arthroscopy.  He then acutely injured his lower back during patient movement, and due to acute worsening of radicular weakness and neuropathy underwent spinal fusion of L5-S1 in Feb 2006.  The CI had continued left knee and lower back pain along with radicular symptoms that prevented him from accomplishing his Soldier duties.  

CC statement (Physician) 20060112: -- diagnosed with herniated disc @ L3-L4, L4-L5, L5-S1; nerve weakness; and neuroforaminal narrowing @ LS-S 1.  His latest MRI and nerve study, conducted on 10 & 13 December respectively, show that his medical condition is worsening.

CC Statement 20060502:  Not capable of performing Military Police or Special Reaction Team duties due to his physical limitations.  Profile 20060419: P1, U1, L3 - Spine Fusion L5-S1, Left Knee, S1

CHRONIC BACK PAIN.  PEB (20060705):  "5241 CHRONIC BACK PAIN, STATUS L5-S1 FUSION, WITHOUT SIGNIFICANT NEUROLOGIC ABNORMALITY, THORACOLUMBAR RANGE OF MOTION LIMITED BY PAIN, WITH LOCALIZED TENDERNESS 2/5 WADDELL'S SIGNS (MEBD DIAG 1, NARSUM, ADDENDUM 27 JUN 06)";  MEB Dx (920050515):  "INTERVERTEBRAL DISC DEGENERATION WITH RADICULOPATHY AND SPINAL FUSION" 

NARSUM (20060516) noted: CI not working in his primary MOS due to the problems with his back and knee; reports that his daily pain is a 4/10 but if he over does it the pain increase to an 8/10; having to change his daily routine to avoid activities that aggravate his back.  "To prevent further injuries he has been given strict guidelines to follow in regards to lifting and running that prevent him from completing his Warrior tasks.  Any future treatment would be palliative in nature and not expected to return him to a level of function that would allow him to perform the duties of his MOS or the primary skills of a Soldier."  The NARSUM Addendum (20060627) noted:  "a) Soldier is able to walk a short distance on his heels but causes significant pain in his left leg.  He is not able walk on his toes due to weakness in his left foot.  Plantar flexion of left foot is 4/5 compared to right.  Extension and Flexion of left lower leg is 4+/5 compared to the right.  b) Per USDAPDA Policy Guidance Memorandum #13 Soldiers pain is Moderate and Frequent.  He takes Percocet at least once a day but takes Ibuprofen daily. c) Range of motion in original NARSUM was miss labeled as 1 May 2005 when it was done on 1 May 2006 Rang(e) of Motion by Physical Therapy 1 May 2006"  20060512 exam of the back noted: Waddell's sign negative.  Sensation to light touch decreased in left lower leg compared to right.  Military PT ROMs from 20060501 noted Flexion "70˚ with 6/10 pain" and combined ROM of 185˚.   However, the hand-written PT comments were:  "Motion with associated pain as noted".  
 
The VA exam of 20070509 (10 months post separation) noted "flexion to 45 of 90 with pain at 45; (combined 175).  Lumbar spine joint function additionally limited after repetitive use by pain, with pain having the major functional impact.  There were signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.  The VA rated this disability as 5243-5242 intervertebral disc syndrome at 20% for forward flexion of the thoracolumbar spine greater than 30˚ but not greater than 60˚.  

Movement
Thoracolumbar	Normal ROM	ROM Mil (PT)
20060501  "Motion with associated pain as noted"	ROM VA 
20070509  Active 
10 months post-discharge	Mil & VA evaluations noted tenderness	
Flex	0-90	70 w/ pain 6/10	45 w/pain at 45		
Ext	0-30	15 w/ pain 6/10	20 w/pain at 20		
L Lat flex	0-30	55 w/ pain 0/10 (30)	25 w/pain at 25		
R lat flex	0-30	45 w/ pain 0/10 (30)	25 w/pain at 25		
L rotation	0-30	20 w/ pain 3/10	30 w/pain at 30		
R rotation	0-30	20 w/ pain 4/10	30 w/pain at 30		
COMBINED	 240	185	175		

The PEB rating noted "ROM limited by pain" and may have applied the Army pain policy to this diagnoses, although the PEB specifically referenced the pain policy only for the knee condition. Regardless the military ROMs were not comprehensive as they did not address the degree for onset of pain, fatigability, incoordination, or other DeLuca criteria.  The PT notation of "Motion with associated pain as noted" likely indicates solely an endpoint of ROM without degree with pain onset as needed for rating IAW the VASRD in effect at the time.  The more comprehensive and detailed VA exam was 10 months post-discharge and there is no indication of intervening worsening of the CI's condition.  Given the higher probative value of the VA exam, it should be used for rating the CI's condition as Intervertebral Disc Syndrome s/p spinal fusion L5-S1 and Degenerative Disc Disease at 20% for flexion of the thoracolumbar spine greater than 30˚ but not greater than 60˚.  

SCIATIC NERVE WEAKNESS, LEFT LOWER EXTREMITY.  The original MEB (920050515) diagnosis was: INTERVERTEBRAL DISC DEGENERATION WITH RADICULOPATHY AND SPINAL FUSION.  The PEB addressed radiculopathy as "without significant neurologic abnormality."  PEB (20060705):  5241 CHRONIC BACK PAIN, STATUS LS-S1 FUSION, WITHOUT SIGNIFICANT NEUROLOGIC ABNORMALITY, THORACOLUMBAR RANGE OF MOTION LIMITED BY PAIN, WITH LOCALIZED TENDERNESS 2/5 WADDELL'S SIGNS (MEBD DIAG 1, NARSUM, ADDENDUM 27 JUN 06).  

The NARSUM Addendum (20060627) noted that the CI was not able walk on his toes due to weakness in his left foot and that there was objective weakness in plantar flexion as well as lower leg extension and flexion compared to the right (see LBP).  Sensation to light touch was also documented as decreased in the left lower leg compared to right.  Imaging of the LS spine showed abnormalities clearly aligning with the CI's motor and sensory deficits and PT documented Girth Measurements showed muscle atrophy with left thigh 0.5 cm and left calf 2 cm smaller than the right side.  The pre-surgical EMG was abnormal in the bilateral sciatic distribution; there was no post-surgical EMG for comparison.  Of note, the NARSUM Addendum (20060627) noted "Waddell's sign negative."

The VA exam of 20070509 noted signs of intervertebral disc syndrome with findings of; L4: Sensory deficit of left lateral thigh; L5: Sensory deficit of left lateral leg; S1: Sensory deficit of left lateral leg.  Give fixed sensory deficits, in the left sciatic nerve distribution the VA rated the CI at 20% for 8520 Sciatic nerve weakness LLE (moderate).  

Although the CI's left lower extremity motor and sensory deficits were noted in the NARSUM, the PEB appears to have adjudicated them as "WITHOUT SIGNIFICANT NEUROLOGIC ABNORMALITY" and combined them into the CI's LBP rating.  The CI had clearly documented left leg mild weakness, noted muscle atrophy, and fixed left leg sensory deficits due to his lumbosacral spine condition.  Specifically for a military police K-9, these were more likely than not to have adversely impacted the ability to protect the LLE or perform field duties, and in combination with the CI's left knee and back met the threshold of being unfitting.  The VA rated this condition as "Moderate" (20%).  Given the motor and sensory deficits with loss of calf girth,  the Moderate (20%) level of rating appears predominate over "Mild" (10%) and the CI should be rated at 5243-8520 for Moderate paralysis of the left sciatic nerve due to intervertebral disc syndrome.   

CHRONIC LEFT KNEE PAIN.  IPEB 20060705 *CHRONIC LEFT KNEE PAIN, RATED AS SLIGHT, NOT REQUIRING DAILY NARCOTIC THERAPY/FREQUENT (MEBD DIAG 2, NARSUM, ADDENDUM, MEDICATION PROFILE) 

*Rated IAW US Army Physical Disability Agency Policy/Guidance Memorandum #13, dated 28 February 2005, subject Rating Pain 

The left knee ROM exams from Physical Therapy dated 20060501 were cited in both the NARSUM and NARSUM Addendum.  ROMs were Extension Left 0˚ pain 4/10; Flexion Left 135˚ pain 4/10.  Girth Measurements left thigh 0.5 cm and left calf 2 cm smaller than the right side.  MRI (20051208) showed degenerative changes of the Medial Meniscus without tear and a small effusion.  

VA exam of 20070509 noted painful motion with a pain-limited flexion to 130˚ and extension to 0˚ and noted that joint function was additionally limited by pain, after repetitive use. This was rated at 10% under 5024.  

The higher VA rating of 30% for 5261 leg limitation of motion, from exams in May 2008 are attributed to worsening of the CI's condition.  Using either the military exam or initial VA exam of the knee, even absent the pain rule, and with application of §4.59 Painful motion, the CI's left knee meets the rating criteria for 10%.  The 20% rating level under 5024 and/or 5260 would not be met until a limitation of flexion to 45°.  
  
Left Knee Laxity.  Left knee laxity was not mentioned in the DES package and cannot be considered by the Board.  The VA examinations that documented left knee laxity were not until May 2008 (22 months post discharge) and led to a VA rating of 10% for 5257 knee laxity and giving way.  As this condition was not addressed in the DES file, it is outside of the scope of the Board to adjudication.  Internal policy previously agreed to by the PDBR, however, is that only conditions specifically noted in the DES submission (MEB physical, NARSUM and PEB documents) are reasonable for Board recommendation as additionally unfitting for service disability rating.  With this precedence, no additional disability for this condition can be granted.  The CI retains the right to request reconsideration from their Service BCMR to address adding this condition as unfitting.

Other Conditions.  There were no other significant conditions identified in the NARSUM or MEB physical.  The other conditions rated (above 0%) by the VA were left and right Plantar Fasciitis and Tinnitus.  None of these conditions were addressed in the DES file and are therefore outside of the scope of the Board to adjudication.  Other medial issues noted in the VA rating exam were not service connected by the VA, since there was no evidence of any compensable disability or active condition at the time of separation.  The Board, therefore, can make no recommendations for any other additionally unfitting conditions.  The CI retains the right to request reconsideration from their Service BCMR to address adding this condition as unfitting.  
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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 PDBR to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  IAW DoDI 6040.44, the PDBR used the Veteran’s Affairs Schedule of Rating Disabilities (VASRD) as the most favorable basis for rating.  In the matter of the back condition, as discussed above, PEB reliance on the USAPDA pain policy for rating the back condition was apparent in this case and the condition was adjudicated independently of that policy by this Board.  Absent the Army pain rule, the Board unanimously opined that the ROMs from the VA examination had a higher probative value and recommended a rating of 20% under code 5243 Intervertebral disc syndrome IAW VASRD §4.71a.  In the matter of the left leg neuropathies, the Board unanimously recommended separating this condition from the CI's chronic back pain, adjudicating it as unfitting based on significant neurologic abnormality as demonstrated by motor weakness, sensory deficits, and mild calf muscle atrophy that were strongly related to fitness.  The majority of the Board adjudged that it should be rated at 20% under 5243-8520 Sciatic Nerve due to intervertebral disc syndrome as the neuropathies were residual to the CI's back condition.  In the matter of the left knee, although the USAPDA Pain policy was applied, it made no difference in the final rating of 10% for the knee.  In the matter of all of the CI’s other medical conditions including Left knee laxity, left Plantar Fasciitis, right Plantar Fasciitis, and Tinnitus; the Board found that these conditions were not addressed in the DES package and were outside of the scope of the Board to adjudicate.  Internal policy previously agreed to by the PDBR, is that only conditions specifically noted in the DES submission (MEB physical, NARSUM and PEB documents) are reasonable for Board recommendation as additionally unfitting for service disability rating.  With this precedence, no additional disability for these conditions can be granted.  The CI retains the right to request reconsideration from their Service BCMR to address adding these conditions as unfitting.  

The Board voted unanimously to rate the CI as Intervertebral disc syndrome 5243 at 20%; and Chronic left knee pain 5009-5003 at 10%.  The Board also voted unanimously to add Moderate paralysis of the sciatic nerve due to intervertebral disc syndrome 55243-8520 as unfitting with a simple majority voting to rate it at the 20% disability level.  The single voter for dissent (who recommended adopting the VA rating 5243-8520 at the 10% versus the 20% level) elected not to submit a minority opinion.

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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 the CI’s prior medical separation.

Unfitting Condition	VASRD Code	Rating	
INTERVERTEBRAL DISC SYNDROME  s/p spinal fusion L5-S1 AND DEGENERATIVE DISC DISEASE	5243	20%	
Moderate paralysis of the sciatic nerve due to intervertebral disc syndrome   	5243-8520	20%	
Chronic left knee pain, s/p arthroscopy	5009-5003	10%	
Combined	40%	
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The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20090224, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.