RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01317
BRANCH OF SERVICE:  Army	BOARD DATE:  20141024
SEPARATION DATE:  20040917

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (88M/Motor Transport Operator) medically separated for a knee and back condition.  The knee and back conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The knee and back conditions, characterized as “chronic right knee pain” and “chronic low back pain (LBP), EPTS,” were the only conditions forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic pain, right knee” and “chronic low back pain, w/o neurologic abnormality” as unfitting, rated 10% and 10% respectively citing the US Army Physical Disability Agency (USAPDA) pain policy for the knee and the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “The Ft. Sill, OK Reynolds hospital was set on attempt to fix injuries with pain pills or shots.  Medical records from past medical care from other medical Army personnel was over looked A/pt.  After being and having surgery on my right knee other issues came about such as back pain, hip pain, right foot pain with more pain the right knee. The records were went through at Ft. Sill OK Reynolds hospital by a Dr. B--.  Dr. B-- l was asked about some and other problems not.  The treatment was lacking in caring about healing and more to get out as fast as they could from Ft. Sill OK.  Rumors from a lot of medical hold soldiers were coming about the care they were getting not good at all.  After being there from late March 2004 til Sept 11th 2004 it was plain to me it was not just rumors but the truth.  I went to be sent to PEB for review my rating was a combined total of 20%.  Right knee 10% and low back 10%.  I was going to appeal my rating which I felt was wrong.  So I paided a civilian doctor to do a quick look over me and my records to carry the appeal hearing.  After talking with W-- P (last name unreadable) Alt PEBLO at Ft. Sill OK Reynolds hospital he informed me that appealing your 20% rating was useless as I was a National Guard member would not get a higher rating do don’t do it.  Take 20% go home work with the VA they will take care of so I did!”

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 knee and back conditions are addressed below.  The contended hip and foot conditions are not 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 Board for Correction of Military Records (BCMR).

RATING COMPARISON:

Service IPEB – Dated 20040727	VA - (1 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, R Knee	5099-5003	10%	Post-Operative Medical Meniscus Chrondroplasty	5299-5260	10%	20041012	
Chronic Low Back Pain	5299-5237	10%	Residuals, Lumbar Spine Injury	5237	10%	20050409	
Other X0 (Not in Scope)	Other x 3	20041012	
Combined:  20%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20050314 (most proximate to date of separation [DOS]).   VARD of 20050419 service connected the back injury, original VARD did not, coded 5237, 10%, effective the day after separation, increasing rating to 30%.  VARD of 20051219 added three conditions, increasing combined to 70%, effective the day after separation.

ANALYSIS SUMMARY:  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 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 (DVA), operating under a different set of laws.  The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The Board also acknowledges the CI’s assertions that his disability disposition was unfairly reviewed.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; and, redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the BCMR and/or the United States judiciary system.

Right Knee.  Available treatment records document that the CI first presented with bilateral knee pain on 12 May 1989.  The physical examination was significant for mild tenderness with patella compression bilaterally.  There was no evidence of effusions, instability or meniscal involvement.  A diagnosis of probable bilateral patellofemoral pain syndrome was noted.  Treatment records were silent for non-radicular (nerve) knee pain until 2003 when right knee pain after dismounting a five ton truck was noted.  A magnetic resonance imaging (MRI) study of the right knee revealed a cyst at the interior back of the knee (Baker’s cyst) and probable significant injury pattern to the posterior horn of the medial meniscus.  The CI underwent arthroscopic surgery of the right knee on 3 December 2003 which revealed a significant medial femoral condylar defect with some loose fragmented cartilage.  Cartilage removal (chondroplasty) was performed.  There was no evidence of meniscal tears.  The CI underwent post-surgical physical therapy and Synvisc injections without resolution of his knee pain.  He was diagnosed with degenerative arthritis and it was noted that a total knee replacement may be warranted in the future.  The narrative summary (NARSUM) dated 25 June 2004 noted reports of difficulty climbing into and out of military vehicles and significant pain when driving the large trucks and having to apply pressure to the brake pedal with his right leg.  He was unable to perform activities involving running, jumping and sit-ups.  Physical examination of the right knee revealed well-healed arthroscopic scars, a normal gait, no evidence of muscular atrophy, and limitation of flexion to 120 degrees.  The examiner diagnosed chronic right knee pain.  A VA Compensation and Pension (C&P) examination performed a month after separation and referenced in the VARD, demonstrated a normal gait and stance with full range-of-motion (ROM) with discomfort.  There was no evidence of effusion, instability, crepitus, popping, or grating noises.  X-rays were normal.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic right knee pain as unfitting.  The PEB rated the chronic right knee condition at 10% with application of the USPDA pain policy, coded analogous to degenerative arthritis; 5099-5003.  VA rated the chronic right knee pain condition at 10% for painful motion, coded analogous to leg limitation of motion; 5299-5260.  The Board considered whether there was evidence for a higher than 10% rating for the chronic right knee condition.  A higher rating analogous to leg limitation of motion would require limitation of flexion to 30 degrees which was not evident in this case.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the chronic right knee pain condition was appropriately recommended in this case.  The Board concluded that this condition could not be recommended for additional disability rating.

Low Back Pain.  Treatment records note a long history of back pain dating to an acute injury in 1989.  In January 2004, the CI reported the onset of right lower extremity burning sensation in association with his back pain.  A MRI study dated 29 January 2004 revealed a bulging disc at lumbosacral L5-S1 level with an associated annular tear.  The CI was referred to physical therapy.  An electromyogram performed on 6 April 2004 was normal without evidence of radiculopathy.  A bone scan performed on 26 April 2004 was negative for inflammation of the hip (sacroiliac) joints.  The CI was evaluated by neurosurgery with a recommendation for epidural steroid injection.  The CI was treated in the pain management clinic without resolution of his LBP (right hip, knee and foot burning sensation).  The NARSUM examination revealed lumbosacral ROM measured at extension 20 degrees, forward flexion 80 degrees, right rotation 35 degrees, left rotation 35 degrees, right side bending 30 degrees and left side bending 30 degrees.  Waddell sign was positive for distractive straight leg test.  No radicular signs were noted on examination.  The CI was able to heel and toe walk.  The VA C&P examination performed 7 months after separation and referenced in the VARD dated 19 April 2005 noted slight limitation of motion with tenderness to palpation on the right side of the lumbar spine at the L-5 level.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic LBP condition as unfitting.  The PEB and VA rated the condition at 10% for lumbosacral strain, coded 5237; the PEB coded analogous to lumbosacral strain.  The Board considered whether there was evidence for a higher than 10% rating for the chronic LBP condition.  There was no evidence of flexion less than 60 degrees; a combined ROM less than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour for a 20% rating.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the chronic back pain condition was appropriately recommended in this case.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

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 DoDI 1332.39 for rating chronic right knee pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic right knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic LBP condition 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130914, 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 XXXXXXXXXXXXXXX, AR20150003732 (PD201301317)

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