RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300383
BRANCH OF SERVICE:  Army	BOARD DATE:  20140429
SEPARATION DATE:  20080308

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (25M/Multimedia Illustrator) medically separated for a degenerative disc disease (DDD) and bilateral patellofemoral syndrome conditions.  The CI had an initial onset of pain in her knees during Basic Training in July 2005 and was diagnosed with tendonitis.  Additionally, in July 2006 while performing pre-deployment training she had increasing pain in her back without a specific injury being noted.  There were no surgical indications and the worsening symptoms did not improve adequately with conservative measures to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back and bilateral knee conditions, characterized as “low back pain secondary to herniated nucleous pulposus and bilateral patellofemoral syndrome, left greater than right,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded allergic rhinitis and depression.  The PEB adjudicated “DDD w/slight annular disk bulge and bilateral patellofemoral syndrome” as unfitting, rated 20% and 0% respectively.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I. I was only rated for disability of my Lumbosacral I Cervical Strain. 2. Other disabilities that were of sufficient severity to preclude military service that were not considered are; Limited Flexion of Knee-bilateral, Chronic Adjustment disorder, Hiatal Hernia, Limited motion of hips-bilateral. Had these disabilities been considered, I would have qualified for medical retirement instead of disability.”

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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20080331	VA - (2 Mos. Post-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DDD w/ Disk Bulge	5299-5242	20%	DDD, Lumbosacral Spine	5010-5237	10%	20080514	
Bilateral Patellofemoral Syndrome	5099-5003	0%	Right Patellofemoral Syndrome	5260	0%	20080514	
			Left Patellofemoral Syndrome	5261-5260	0%	20080514	
Allergic Rhinitis	Not Unfitting	Not Service Connected	
Depression	Not Unfitting	Adjustment d/o with Depressed Mood	9440	30%	20080503	
No Additional MEB/PEB Entries	Other x5	20080514	
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20080319 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

DDD w/Slight Annular Disk Bulge Condition.  The CI’s back pain began in July 2006 while she was participating in pre-deployment training.  There was no acute injury and her back pain worsened over the time period of a week.  She sought care and was treated with non-steroidal anti-inflammatory drugs (NSAIDs), muscle relaxers, narcotic medications, chiropractic care and physical therapy’s (PT) “back class,” then a three session “Lumbar Stabilization Program.”  She did not improve was given duty limitations, P2 profile and evaluated by orthopedics.  She had plain film X-rays that revealed degenerative disc changes at L5-S1 and magnetic resonance imaging (MRI) study performed in July 2007 that revealed the following changes: “L5-S1 degenerative disc desiccation without narrowing.  There is a slight annular disc bulge at this level.  Slight bilateral facet arthrosis (degenerative change) at L4-L5 and L5-S1.  No evidence of focal disc protrusion or neural element impingement.”  When it was determined that she could not perform basic soldering duties and determined not to be a surgical candidate, she was given an L3/S1 profile and referred for MEB.  The MEB physical exam accomplished 6 months prior to separation noted tenderness to palpation of the lumbar para-spinal muscles, pain limited range-of-motion (ROM), no radicular signs and a normal gait.  There were thoracolumbar ROM measurements obtained by PT less than 6 months prior to separation that the Board considered in its rating recommendation.  The pertinent measurements for rating were: flexion 45 degrees (normal 90 degrees) and a total thoracolumbar ROM of 185 degrees (normal 240 degrees). That exam also documented pain limited motion with localized tenderness and guarding.  There was no muscle spasm or abnormal spinal alignment noted and her gait was normal.  At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the CI reported constant dull and sharp pain in the lower back area of 5/10 intensity.  The lower back pain radiated to back of the thigh, legs and feet, described as tingling and numbness sensation.  She denied any bowel or bladder problems.  Her pain flared up once in 1-2 weeks, was incapacitating and lasted for 2 days.  The physical exam showed normal posture and gait.  The pertinent rating ROM measurements were documented as: flexion 90 degrees with a total thoracolumbar ROM of 235 degrees.  Flexion was accompanied by pain at 40 degrees and there was no decrease upon repetitive testing.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied the analogous VASRD code of 5299-5242, degenerative arthritis of the spine and rated it 20% based on a 45 degree flexion.  The VA also applied an analogous code of 5010-5237, lumbosacral or cervical strain and rated it 10% based on painful or limited motion as the ROM measurements documented by the C&P exam were normal.  The VASRD uses the general rating formula for diseases and injuries of the spine for rating purposes.  The PEB appropriately applied the criteria for the 20% rating as copied below for the reader’s convenience: 

Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis ..................................20

There are no other appropriate VASRD codes for basing a rating recommendation that would be of benefit to the CI.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 20% for the DDD condition was appropriately recommended in this case.

Bilateral Patellofemoral Syndrome Condition.  The patient developed bilateral knee pain during basic training round July 2005.  There was no acute injury, she was treated with PT, NSAIDs and duty restriction and was able to complete training.  Later in February 2006, she presented for care, complaining of left knee pain; After history and physical exam, she was diagnosed with patellofemoral syndrome.  An MRI was ordered and showed a small joint effusion, but was otherwise normal and she was referred to PT for their “knee class” in March 2006.  There were no further entries concerning her knee pain until July 2007 when she was referred into the Disability Evaluation System (DES) with an L3 profile that listed “patellar tendonitis.”  The MEB physical exam performed 7 months prior to separation documented bilateral knee tenderness to palpation at the inferior joint line, no edema or effusion and normal ROM.  The NARSUM noted that her baseline pain was 2/10 when she did nothing and increased anytime she walked after a mile.  Anytime she did repetitive bending exercises she experienced significant pain.  She could not run or march due to pain in her knees which was worse on the left versus the right.  Physical exam findings were a positive patellar grind bilaterally.  There was no tenderness to palpation and her right knee had normal ROM while her left knee showed a ROM of 135 degrees flexion (normal is 140 degrees).  There was no evidence or complaints of instability in either knee.  At the VA C&P exam, performed 2 months after separation; the CI reported constant, dull bilateral knee pain located at the front of both knees that was 4-5/10 in intensity.  The bilateral knee pain flared up 3-4 times per week, was incapacitating, and lasted for 2-3 days.  Precipitating factors were prolonged walking or sitting, repeated squatting, running activities and climbing stairs.  She took NSAIDs as need and narcotic medication for severe pain.  The physical exam revealed a normal gait.  The left knee ROM was 130 degrees with painful motion on repetitive testing and the right knee ROM was normal also with painful motion or repetitive testing.  There was moderated tenderness upon compression of both patella and no signs of instability.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the bilateral patellofemoral by applying the analogous VASRD code of 5099-5003 (degenerative arthritis) and rated it 0% citing utilization of the “Table of Analogous Codes rated in accordance with U.S. Army Physical Disability Agency Policy/Guidance Memorandum #12, dated 28 February 2005, Subject: Table of Analogous Codes.”  A 0% rating can be applied IAW VASRD 4.31 when the requirements for a compensable evaluation are not met.  The VA applied VASRD code 5260 (limitation of leg flexion) and rated each knee separately at 0%.  The PEB adjudicated both knees together as unfitting and Board review of the evidence did not reveal any unilateral distinctions between the knees with regards to fitness or its rating recommendation.  It is speculative to conclude that the disability confined to a single knee would have rendered the CI incapable of performing her duties but, it is also reasonable to surmise that it was the overall effect of both knees which rendered her unfit.  Furthermore, the bilateral diagnosis supported a single 5003 based rating for “2 or more major joints;” thus there is VASRD §4.71a latitude for a bilateral rating.  Board members agreed, therefore, that there were insufficient grounds for recommending separate right and left knee disability ratings in this case.  The evidence documents that the last treatment record entry concerning the bilateral knee condition was over 21 months prior to separation.  There was no specific injury to either knee and the MRI revealed only a small joint effusion in the left knee.  All ROM measurements were not compensable and there was no evidence of instability or other cause to consider application of a knee specific VASRD code.  Board members agree was that there was little satisfactory evidence of painful motion in the evidence to meet the minimal compensable rating under code 5003.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 0% for the bilateral patellofemoral syndrome condition was appropriately recommended in this case.

Contended Depression Condition.  The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the military DES and determined that no MH diagnosis was changed to the applicant's possible disadvantage.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The MH condition, depression, was determined to be not unfitting by the PEB.  The Board’s charge with respect to a MH condition referred for review that was determined to be not unfitting by the PEB is an assessment of the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering PEB not-unfit determinations requires a preponderance of evidence.  The first and only MH related evaluation or treatment note contained in the evidence present for review was prepared by a clinical social worker five months prior to separation and contained the following excerpt:

“Pt was in pre-deployment training and injured back knees.  Pt completed phase I and II physicals and revealed insomnia and marital problems.  Pt reported nightmares for 1 year of demons and people breaking in her house.  Insomnia for 7 months, sleeping 2-3 hours nightly with difficulty falling and staying asleep.  Pt reported marital problems for 3 years and husband deployed Oct 2006 and will return in Jan 07.  Pt reported a depressed mood for 3 years = 5/10.  Pt reported stress and anxiety from the occupation problem, pending medical board and husband deployed.”

The exam showed a depressed mood with the remained of the mental status exam (MSE) being normal.  The CI was diagnosed with depression and was referred for counseling.  There were no psychotropic medications prescribed or hospitalizations for her MH condition.  The NARSUM only mentions “anxiety as per psychiatry” in the past medical history section.  The C&P exam documented “Sad, crying, low motivation; "It's always in my head. Break down once/month or when I touch on the subject or when I am put down about it.”  Depression about injuries from military; never had pain before, now always in pain.  She only had one counselling session and was not taking any medications for her MH condition.  The MSE was essentially normal and psychometric testing revealed minimal-mild depression and minimal anxiety.  The examiner diagnosed adjustment disorder with depressed mood and assigned a Global Assessment of Function of 61 (some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships).  The depression condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  Additionally, the commander’s statement actually recommended retention of the CI if her non-MH conditions could be controlled.  All entries were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the MH condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended depression condition and so no additional disability rating is recommended.

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 Policy/Guidance Memorandum #12, Table of Analogous Codes, for rating the bilateral patellofemoral syndrome was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the DDD condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral patellofemoral syndrome condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended depression condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130507, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

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 XXXXXXXXXXXXXXXXXX, AR20140015238 (PD201300383)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA