RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300639
BRANCH OF SERVICE:  Army	BOARD DATE:  20140220
SEPARATION DATE:  20030602

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (75H/Personnel Services Specialist) medically separated for bilateral knee pain, left testicular pain and a congenital hypospadias condition causing urinary leakage that was surgically repaired twice, non-compensable, existed prior to service (EPTS) without service aggravation.  The CI first experienced bilateral knee pain and testicular pain in 1997.  He was treated conservatively and was initially recommended for a Medical Evaluation Board (MEB) in 1998, but at his request he instead underwent a Military Occupational Specialty (MOS) Medical Retention Board which resulted in him being reclassified as a 75H Personnel Specialist in January 1999.  In May of 2001 he had a recurrence of his varicocele condition.  He was recommended for a surgical procedure and referred to the MEB due to significant problems with pain when running, walking, sit-ups and heavy lifting.  The CI was issued a P3L3 profile and the MEB was initiated.  The bilateral knee and left testicular, and hypospadias conditions, characterized as “bilateral retropatellar pain syndrome,” “urethral cutaneous fistula,” “recurrent varicocele” (varicose veins on scrotum) and “hypospadias” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition, “chronic disequilibrium” (loss or abnormal sense of balance) for PEB adjudication.  The Informal PEB adjudicated “retropatellar pain syndrome,” “chronic left testicular pain” and “hypospadias” as unfitting, rated 0%, 0% and non-compensable, respectively.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Patellofemoral syndrome of the right and left knee is a chronic and constant condition which causes constant pain and limits my mobility.  This condition diminishes my quality of life. Tinnitus and disequilibrium also lessens my quality of life.  My hiatial hernia condition limits my quality of life and hinders my scope of employment and the type of employment I can do since I cannot life heavy weights (over 25 pounds) without feeling pain in my abdominal area.  Knee pain/condition has caused pain in ankles/hips and lower back due to limited mobility.”

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 ratings for the unfitting bilateral knee, left testicular pain and hypospadias with urethral stenosis and cutaneous fistula conditions are address below.  The contended and not unfitting chronic disequilibrium condition is also addressed.  The contended tinnitus, hiatal hernia, abdominal area, ankles, hips, lower back and posttraumatic stress disorder condition were not identified in the PEB; and therefore, not within the Board’s purview.  These, and any other condition 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.

RATING COMPARISON:

Service IPEB – Dated 20030307	VA* - (8 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Retropatellar Pain Syndrome	5099-5003	0%	Patellofemoral Syndrome, Right Knee	5299-5260	20%	20040212	
			Patellofemoral Syndrome, Left Knee	5299-5260	10%	20040212	
Chronic Left Testicular Pain	8799-8730	0%	Left Varicocele	7599-7523	0%	20040212	
Hypospadias with Urethral Cutaneous Fistula	7519	--%	Urethroutaneuos Fistula, Status Post Hypospadias	7519	20%	20040212	
Chronic Disequilibrium	Not Unfitting	Chronic Disequilibrium	6299-6204	10%	20040212	
No Additional MEB/PEB Entries	Other x 6	20040212	
Combined:  0%	Combined:  60%	
* Derived from VA Rating Decision (VARD) dated 20040407 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions 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, operating under a different set of laws.  The Board acknowledges the CI’s contention for ratings of his chronic disequilibrium condition which was determined to be not unfitting by the PEB.  Service disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with military service, a disability rating IAW the VA Schedule for Rating Disabilities (VASRD), based on the degree of disability evidenced at separation, will be recommended.

The requested hypospadias with urethral stenosis and urethral cutaneous fistula 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; it, by precedent and prior legal/administrative opinion, may review the fairness of the PEB’s judgment that there was not permanent service aggravation.  Should the majority of members agree that there was permanent service aggravation, a service disability rating IAW the VASRD, with or without a deduction IAW VASRD §4.22 (Rating of disabilities aggravated by active service), will be recommended.

Bilateral Knee Condition.  The PEB combined the right and left retropatellar pain syndrome conditions under a single disability rating, coded analogously to 5003.  Although 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.

Although the CI experienced chronic knee pain issues beginning in 1997, he presented in July 2002 with a 3-month history of worsening bilateral knee pain that was exacerbated by running, rucking, bending, jumping and lateral stress.  He denied a history of trauma.  He experienced difficulty squatting and walking down stairs, and complained of his right knee “giving out.”  X-rays of each knee and a magnetic resonance imaging (MRI) of the right knee were normal.  In May 2002 (13 months prior to separation) the CI successfully completed the alternate aerobic event (walking).  An orthopedic evaluation on 6 August 2002 (10 months prior to separation) noted that right knee pain was worse than left, especially when climbing stairs; and that there was no history of specific injury.  The physical examination indicated the presence of patellofemoral pain bilaterally, although it was not clear if this referred to painful motion or tenderness.  At a separation exam in October 2002, the CI indicated that he biked four times per week.  The narrative summary (NARSUM) physical exam on 10 December 2002 (6 months prior to separation) reported the absence of knee swelling or warmth.  There was no ligament instability (tested bilaterally), but tenderness of the kneecaps was present.  Painful motion was noted in both knees.  Bilateral crepitation was present with extension and flexion and also during ambulation, but use of a cane was not mentioned.  The inner aspect of the thigh muscles was atrophic.  A physical therapy (PT) clinic note on 22 January 2003 (4 months prior to separation) reported that the onset of the knee pain was insidious, and that the right knee pain was worse than the left.  Pain severity was noted to be 3-4/10 at rest with worsening to 7/10 with activity.  The right knee was reported to occasionally give way and to occasionally swell.  Functional limitations included bowling, skiing and roller blading.  Physical examination noted a normal gait, but frequent popping consistent with crepitus was audible.  Knee ligament testing was normal.  Mild bilateral quadriceps muscle weakness was present.  A commander’s statement on 24 February 2003 noted that the CI was issued a cane which he sometimes used to help him with standing, walking and going up and down stairs.  It also stated that he could not stand for long periods of time without bending his right knee.

At the VA Compensation and Pension (C&P) exam performed 8 months after separation, the CI reported his knee pain began after acutely twisting both knees in 1997.  Right knee pain was worse than the left.  He could only walk one to two blocks and used a cane for ambulation.  Since separating from the service, he worked in an office at a desk.  Physical exam noted a limping gait with use of a cane.  Stance was difficult with slight flexion of the right knee.  Ligaments were intact bilaterally.  Repetitive motion was not performed.  The range-of-motion (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.

Knee ROM
(Degrees)	Ortho ~10 Mos. Pre-Sep	PT ~ 4.5 Mos. Pre-Sep	VA C&P ~8 Mo. Post-Sep	
	Left	Right	Left	Right	Left	Right	
Flexion (140 Normal)	“Similar exam”	145	“Full”	110	90	
Extension (0 Normal)		0		0	0	
Comment		+pain	+Tenderness, painful motion		+painful motion	
§4.71a Rating	0% or 10%	0% or 10%	0% or 10%	0% or 10%	0% or 10%	10%	

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s DA Form 199 reflected application of the VASRD analogous 5003 code for rating the right and left retropatellar knee pain conditions together at 0%.  The Board unanimously agreed that it would be overly speculative to conclude that either knee was not unfitting.  Each would have likely rendered the CI incapable of continued service within his MOS; and, accordingly each condition merits separate ratings.  The VA assigned a 10% rating for the left knee condition under an analogous 5260 code (limitation of flexion) for a non-compensable degree of reduced flexion.  Although the right knee also displayed non-compensable limitation of flexion, the VA assigned a 20% rating using the same code with apparent application of §4.45.  The Board considered that there was no radiographic evidence of degenerative changes and no compensable limitation of motion on any exam, but the Board majority agreed there was sufficient evidence of painful motion in each knee, which IAW §4.59 warrants a 10% rating.  Board members also debated the application of VASRD §4.45 in this case, which allows for the next higher rating if evidence of additional functional loss after repetitive motion is evident.  However, the C&P examiner provided no objective evidence that the right knee suffered from additional pain, weakness, fatigue or loss of endurance since repetitive motion was not performed.  There was likewise no evidence from other examinations that supported application of §4.45 for either knee.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right knee pain condition and 10% for the left knee pain condition, coded 5099-5003.

Chronic Left Testicular Pain Condition.  The CI had a surgical procedure performed in 1997 and a venous embolization in January 2001 to treat a recurrent left varicocele (abnormal swelling of veins within the scrotum).  However, the left varicocele returned and the CI continued to complain of significant pain during intercourse, and whenever running, walking for extended periods, performing sit-ups, or lifting heavy objects.  A follow-up evaluation by urology in January 2002 reported ultrasound confirmation of dilated veins in the left scrotum.  The examiner noted a non-tender varicocele and opined that ongoing pain “may represent some form of neuropathic pain.”  The NARSUM physical examination was silent regarding varicocele findings or tenderness.

At the VA C&P exam, the CI reported that the varicocele “is not an ongoing problem.”  He reported “no significant symptoms.”  Although examination revealed a slightly tender left testicle and spermatic cord, there was no evidence of a varicocele.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB coded chronic testicular pain analogously to 8730 (neuralgia of ilioinguinal nerve) and rated at 0% for mild or moderate paralysis.  The VA also gave a 0% rating, but used an analogous 7523 code (testis, atrophy complete).  The Board concluded that the evidence just described did not support a rating higher than 0% via either coding pathway.  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 chronic right groin and lower abdominal pain condition.

Hypospadias with Urethral Stenosis and Cutaneous Fistula Condition.  Hypospadias is a condition in which the opening of the urethra is on the underside of the penis, instead of at the tip.  The CI had surgical intervention for this condition as a child.  A urology evaluation was performed on 14 March 1997 (a year after entry on active duty) for a complaint of testicular pain.  It stated “…has a history of hypospadias repair as child & developed a fistula which was never repaired.”  No history of trauma or of voiding difficulties or symptoms from the fistula (urethral fistula or abnormal connection between urethral and skin) was reported at that visit.  Examination showed a fistula opening on the underside of the penis.  An operative report in May 1997 indicated that a varicocele was removed, but that a fistula repair which was planned to be performed at the same time was not done.  At a urology evaluation on 29 December 2001 the CI stated that the urethral fistula “does not bother him greatly.”  He was more concerned about the varicocele.  Examination showed a small mid-shaft ventral urethral fistula.  The assessment was that the urethral fistula was a complication of the childhood hypospadias repair.  Although some urinary leakage occurred, no intervention was planned since “it does not bother the patient.”  At the NARSUM examination 6 months prior to separation, the CI reported that his urinary issues related to the fistula began in February 1997 when he first noted pain in the genital area while crawling on the ground during field exercises.  He complained of an inability to avoid soiling his clothing due to urinary leakage.  A urethral surgery had been recommended but was not performed.  Examination confirmed the presence of a ventral mid-shaft fistula.  The commander’s statement on 24 February 2003 indicated that the fistula occurred as a result of injury during low crawling on the ground in February 1997.  The VA C&P examiner, 8 months after separation, noted a urology evaluation in December 2002 that showed urine flow was diminished and that penile “ballooning” occurred while voiding.  The CI continued to complain of urinary leakage at the fistula site.  Physical examination reported two small (approximately one millimeter) punctate fistulous openings on the penile shaft near the scrotum.

The Board directs attention to its recommendation based on the above evidence.  The PEB and VA both applied the 7519 code (urethra, fistula of) for the urethrocutaneous fistula condition.  The PEB deemed the fistula not eligible for disability rating and compensation because it was “a direct result of a congenital condition has followed a course of normal progression without permanent service aggravation.”  The VA disagreed with the PEB’s EPTS conclusion, stated “there is no clear and convincing evidence that this condition was not aggravated by service,” and assigned a 20% rating.  The 20% rating criterion under this code requires “the wearing of absorbent materials which must be changed less than 2 times per day.”

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.  The Board’s threshold for countering such service determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  All members agreed that the evidence supports the PEB’s position.  The service urologist clearly stated that the fistula was a consequence of the hypospadias surgery performed as a child.  There is no objective evidence that the natural evolution of this condition was affected at all by subsequent military activities, or would not have occurred had he not joined the service.  After due deliberation in consideration of the preponderance of the evidence, members agreed that there was insufficient cause to recommend a change in the PEB’s determination that the hypospadias with urethral stenosis (narrowing) and urethral cutaneous fistula condition existed prior to service and was not permanently aggravated by service; thus, it is not subject to service disability compensation.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that chronic disequilibrium (loss or abnormal sense of balance) was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The CI was evaluated by neurology in April 2002 for a 2.5 year history of dizziness.  Episodes progressed to the point of occurring daily for 20 minutes, and were sometimes associated with nausea and vomiting.  The neurologist stated that three falls due to dizziness resulted in a fractured radius twice and bruised ribs in the past 6 months.  Examination noted a normal gait and neurologic findings.  The neurologist diagnosed the condition as chronic disequilibrium likely secondary to noise-induced vestibular disturbance.  An MRI and formal vestibular testing (electronystagmogram) were normal and the CI began vestibular rehabilitation.  The CI stated to the NARSUM examiner that he could not drive long distances without feeling motion sickness, and that he had not experienced improvement in symptoms with vestibular rehabilitation.  The NARSUM did not document examination findings suggestive of loss of balance.  At a PT evaluation on 15 January 2003 the CI stated that he suffered several falls due to dizziness and that dizziness caused a motor vehicle accident 3 months previously.  Examination showed a normal gait.  Some exam maneuvers produced subjective dizziness.  A PT follow-up on 16 January 2003 noted “still feeling of off-balance as he is driving.”  He was observed to stand in place normally with eyes open and closed; tandem gait with eyes open was normal.  The commander’s statement on 24 February 2003 reported that he had experienced no noticeable improvement with vestibular rehabilitation.  At a follow-up visit in the Ear, Nose and Throat (ENT) clinic on 6 March 2003, the CI stated that there had been no falls “since his last visit” (last ENT visit was October 2002), and that there were “some results” with vestibular rehabilitation.  Review of the service treatment record shows the CI was treated for a fractured radius (forearm bone) once in 1997 and for a fractured rib in 1996.  He was seen for a rib contusion in December 2001.

The C&P examiner reported that dizziness began after exposure to a mine detonation without hearing protection in June 1999.  He still complained of dizziness, but especially of motion sickness.  Motion sickness was “not so much” of a problem when driving, but especially occurred if he was in the back seat, or if getting up from a lying or seated position.  Falling due to dizziness was not mentioned and the examination noted no signs of disequilibrium.  The disequilibrium condition was not profiled until the MEB process.  The condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the chronic disequilibrium 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 chronic disequilibrium 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.  In the matter of the retropatellar pain syndrome condition, the Board recommends that it be rated for two separate unfitting conditions as follows:  chronic right retropatellar pain syndrome condition coded 5099-5003 and rated 10%; and by a vote of 2:1, chronic left retropatellar pain syndrome condition coded 5099-5003 and rated 10%; both IAW VASRD §4.71a.  The single voter for dissent did not elect to submit a minority opinion.  In the matter of the chronic left testicular pain condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the hypospadias with urethral stenosis and urethral cutaneous fistula condition, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended chronic disequilibrium 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Right Retropatellar Pain Syndrome	5099-5003	10%	
Chronic Left Retropatellar Pain Syndrome	5099-5003	10%	
Chronic Left Testicular Pain	8799-8730	0%	
Hypospadias with Urethral Stenosis and Cutaneous Fistula	7519	--	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130524, 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 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXX, AR20140007902 (PD201300639)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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						     

CF: 
(  ) DoD PDBR
(  ) DVA