RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	 CASE:  PD 13-00381	
BRANCH OF SERVICE:  Army 	 BOARD DATE:  20130822
SEPARATION DATE:  20031024		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B, Infantryman) medically separated for back and knee conditions.  His knee pain, right greater than left, began in 2000, and in 2002 he also developed back pain.  All were treated conservatively and the back also with epidural steroid injections (ESIs).  The CI was referred to two MOS/Medical Retention Boards (MMRB) and a Medical Evaluation Board due to his knee condition.  He was returned to duty and deployed to Iraq and returned early due to his back pain.  The bilateral knee and back conditions could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards.  He was issued a permanent L3 profile and referred for a second MEB.  The back and bilateral knee conditions, characterized as “chronic back pain” and “chondromalacia of the patella” were forwarded to the Physical Evaluation Board (PEB).  The MEB also identified and forwarded chronic foot pain and gastroesophageal reflux disease (GERD) for PEB adjudication as medically acceptable.  The PEB adjudicated “chronic back and knee pain” as unfitting, rated 20%, referencing the US Army Physical Disability Agency (USAPDA) pain policy.  The two remaining conditions were determined to be not unfitting.  The PEB was revised for administrative corrections in which the two conditions (back pain and knee pain) were given separate disability ratings of 10% each for a combined rating of 20%.  The CI made no appeals, and was medically separated.

CI CONTENTION:  “I believe the rating should be increased because after many years of honorable service, and after incurring many injuries during the course of my duties, I was given a low rating for injuries that still effect my life today.  During combat training and preparation, I suffered injuries resulting in a P-3 profile.  This was changed to P-2 to be deployable.  I was honored to serve and do so.  I was further injured and wounded in Iraq, where I carried on until medi-vaced for treatment.  The medical board then used pre-deployment MRI’s and X-Rays to decide on my status – essentially using incomplete, outdated information for their determination.  I still suffer greatly from my injuries and wounds and this will likely always be so, according to my medical team.  This causes great stress upon me, my wife, and family, and prevents me from holding continuous employment, and day to day things, such as playing with my son.  I am proud of my service, and was honored to do my part to advance democracy and freedom.”  (sic)

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 Service ratings for the unfitting back and bilateral knee conditions are addressed below.  The foot and GERD conditions were not specifically contended by the CI and are outside the purview of the Board; 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 Service Board for Correction of Military Records.  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Military Disability Evaluation System has neither the role nor the authority to compensate service 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 Veteran Affairs, which operates under a different set of laws.   

RATING COMPARISON:  
   
Service PEB – Dated 20031015	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Lower Back Pain…	5293 5299-5295	10%	DDD, Lumbar Spine	5299-5243	10%	STR	
Symptomatic CMP	5099-5003	10%	CMP, Right Knee	5299-5260	10%		
			CMP, Left Knee	5299-5260	10%		
Chronic Foot Pain	Not Unfitting		
GERD			
No Additional MEB/PEB Entries	Other x 6	
Combined:  20%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20031222.   

ANALYSIS SUMMARY:  

Low Back Condition.  The CI first presented with low back pain (LBP) in January 2002 following a road march.  He was treated conservatively with medications, physical therapy (PT), and the “back school” without resolution.  An MRI on 22 July 2002 showed degenerative disk disease (DDD) at L4-5 and L5-S1 with disk space narrowing at L1-2.  Electrodiagnostic studies on 12 November 2002 were normal.  The CI underwent ESI twice and improved sufficiently to deploy.  However, his symptoms worsened and he was air evacuated back to his home station.  He was seen in neurosurgery and noted to have a normal range of motion (ROM) and neurological examination.  He was also seen in orthopedics and determined not to be a surgical candidate.  Although conservative treatment was continued, his pain persisted and an MEB was initiated.  The narrative summary (NARSUM) was dictated on 3 September 2003 and noted that he had tenderness of the lumbar paraspinal muscles with a positive test on the right for nerve root irritation.  His neurological examination was normal as was the heel to toe gait.  He was noted to have flexion of 55 degrees when standing and 100 degrees when sitting.  Extension was limited to ten degrees.  The measurements for the other planes of motion were not documented.  There was no VA compensation and pension (C&P) examination in evidence proximate to separation.  However, an examination on 15 March 2005, 16 months after separation, was normal including gait, ROM, and the neurological examination other than positive provocative tests for radicular irritation bilaterally.  The Board directed attention to its rating recommendation based on the above evidence.  The VA coded the back condition as 5299-5243, analogous to intervertebral disc syndrome, based on service treatment records.  The PEB coded the LBP as 5293 and 5299-5292, older codes for intervertebral disc syndrome and lumbar limitation of motion.  The Board noted that the current VASRD was in effect at the time of separation and utilized this rating system.  Both the VA and PEB rated the back at 10%.  The Board noted that although the CI had multilevel disc disease, his examination was essentially unremarkable.  While the PT standing forward flexion measurement was 55 degrees, examination before and after were normal and the sitting measurement by PT exceeded the VA normal values.  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 LBP condition.  While the 5243 code was in effect at the time of separation, changing to this code provides no advantage to the CI.  

Bilateral Knee Condition.  The CI was initially seen for right knee pain two years prior to separation and was kept on a profile for his knee almost continuously until separation.  X-rays were unremarkable.  An MRI showed mild chondromalacia patella (CMP) of the left knee, but the right knee was normal aside from a metallic artifact.  However, the right knee was much more symptomatic than the left.  The NARSUM noted that the CI had full ROM of the knees and mild distal quadriceps tenderness without effusion.  No pain with motion was recorded.  The C&P examination 16 months after separation was normal including gait and ROM, but noted that he had extreme pain when bending his knees.  He had not lost time at work.  His examination was normal bilaterally with full ROM, negative testing for instability and meniscal irritation, and without painful motion or DeLuca criteria.  X-rays were normal other than a benign bone island of the left proximal tibia.  The Board considered if the left and right knee, bundled for rating by the PEB, were separately unfitting.  The examinations were essentially normal both proximate to separation and slightly over one year after separation.  The action officer opined that the minimal CMP found on the left knee MRI was not of such significance as to warrant a finding of separately unfitting.  While the right knee was the more painful, the examination including MRI was basically normal.  Absent painful or limited motion, meniscal pathology, instability, or significant radiographic findings, the Board found no route to finding either knee separately unfitting.  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 bilateral knee pain condition.  

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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the back and knee pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the back and knee conditions and IAW VASRD §4.71a, 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, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5293, 5099-5295	10%	
Symptomatic (bilateral) Chondromalacia Patellae	5299-5003	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130509, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB / XXXXXXXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20130021819 (PD201300381)

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