RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02006
BRANCH OF SERVICE:  Army 	BOARD DATE:  20140912
SEPARATION DATE:  20050831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (67U10/Helicopter Repair) medically separated for chronic pain in right knee, right elbow and right foot.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The CI was permitted to perform an alternate event for his Army physical fitness test.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  These conditions characterized by the MEB as “osteochondritis dissecans right knee”; “right lateral epicondylitis (slight and intermittent)”; and “right foot pain (slight and intermittent),”were forwarded to the Informal Physical Evaluation Board (IPEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The IPEB adjudicated these conditions as “chronic pain, right knee, right elbow and right foot” under code 5099-5003, rated at 0%, citing the US Army Physical Disability Agency (USAPDA) pain policy, criteria “slight/intermittent.”  The CI non-concurred with the IPEB findings and recommendations; thus he requested a Formal PEB (FPEB).  As a result of an informal reconsideration, the original IPEB findings were rescinded based on the submission of new documentation.  The PEB’s reconsideration adjudicated the condition under code 5099-5003, but at a higher rate of 10%, citing USAPDA Policy/Guidance Memorandum #13, dated 08 April 2002, criteria “slight/constant.”   The CI concurred with the findings, wavier his rights for a FPEB, and was medically separated. 

CI CONTENTION:  Nothing contended.

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 rating for the unfitting right knee, right elbow and right foot conditions are addressed below and 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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20050622	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Knee, Right Elbow, And Right Foot	5099-5003	10%	Right Lateral Epicondylitis	5299-5206	0%	STR	
			Right Knee Pain	5260	0%	STR	
			Right Foot Pain	5284	0%	STR	
Other x0 (Not in Scope)	Other x6	
Combined:  10%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20090421 (most proximate to date of separation)
NOTE:  The VA rated the three conditions above at 0%; but also documented each condition as “not service connected.”

ANALYSIS SUMMARY:  The PEB combined the right knee, right elbow and right foot 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 service 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.  To that end, the evidence for the right knee, right elbow and right foot conditions are presented separately; with attendant recommendations regarding separate unfitness and separate rating if indicated.

Chronic Right Knee Pain.  The narrative summary (NARSUM) (prepared 5 months prior to separation), noted the CI’s right knee pain had been present prior to enlisting into the Army.  The CI stated that his knee pain was exacerbated by physical training and he was issued a profile in April 2003.  He complained of a grinding sensation in his knee which was aggravated by cold weather and that he experience swelling whenever he attempted to run.  The physical exam findings are summarized below.

There was no VA Compensation & Pension (C&P) exam performed for the right knee.  X-ray images of the right knee were normal.  Because of the CI’s multiple complaints of right knee pain, a body bone scan was performed and revealed minimal activity for bilateral knee.  No complains of left knee pain.  The VA did not grant service connection for the right knee condition and rated at 0%.  

The goniometric 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.

Right Knee ROM (Degrees)	Ortho ~6 Mo. Pre-Sep	MEB ~5 Mo. Pre-Sep	
Flexion (140 Normal)	“Normal movement”	125	
Extension (0 Normal)	“Normal movement”	0	
Comment	Pos. antalgic gait, painful motion & tenderness to palpation; No instability or swelling	Pos. antalgic gait; No tenderness, instability or swelling; Normal reflexes & strength	
§4.71a Rating	10%*	10%*	
IAW VASRD §4.59, Painful motion

The Board directs attention to its rating recommendation based on the above evidence.  The Board first considered if the evidence supported that the right knee condition was reasonably justified as separately unfitting after being “de-coupled” from the combined PEB adjudication.  The right knee condition was separately identified on the profile that initiated the disability evaluation process.  The commander’s statement did not identify any specific condition as duty limiting.  The MEB’s DD Form 2808 also separately identified the right knee condition and it was adjudged as failing retention standards.  Members agreed that this fitness-based documentation reasonably justifies the conclusion that the right knee condition was integral to the CI’s inability to perform his MOS and accordingly a separate rating is recommended.  The evidence reviewed by the Board did not document any physical finding or injury that would allow application of a knee specific VASRD code for its rating recommendation.  There was ample evidence supporting application of VASRD §4.59, painful motion, which allows for a 10% rating under VASRD code 5003.  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 condition.

Right Elbow Pain.  The documents in evidence reveal that the CI suffered three injuries to his right elbow which likely contributed to his diagnosis of lateral epicondylitis (pain inflammation of the outside of the elbow) otherwise known as “tennis elbow.”  X-rays images of the right elbow revealed a small bone spur at the tip of the elbow but were otherwise normal.  Treatment included the CI wearing an elbow brace, taking Motrin and extensive occupational therapy; all assisted with pain control but did not fully alleviate it.  The NARSUM (prepared 5 months prior to separation), documented his pain as 6/10 in intensity; that pain increased when the CI held small items in his right hand and when he fully extended his right arm.   The physical exam findings are summarized below.  

There was no VA C&P examination performed on the right elbow. The VA did not grant service connection for the right elbow condition and rated it at 0%.  There were two goniometric 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.

Right Elbow ROM (Degrees)	MEB ~5 Mos. Pre-Sep	PT ~4 Mos. Pre-Sep	
Pronation (80 Normal)	80	Full Active ROM (FAROM)	
Flexion (145 Normal)	125	FAROM	
Extension (0 Normal)	0	FAROM	
Supination (85 Normal)	85	FAROM	
Comment: Right Hand Dominant	Pos. painful motion; Pos. functional limitations	Pos. painful motion; Decreased grip strength; Pos. tenderness to palpation	
§4.71a Rating	10%*	10%*	
*IAW VASRD §4.59, Painful motion

The Board directs attention to its rating recommendation based on the above evidence.  The Board first considered if the right elbow condition, having been de-coupled from the combined PEB adjudication, could be reasonably justified as separately unfit.  The right elbow condition was separately identified on the profile that initiated the disability evaluation process.  The commander’s statement did not identify any specific condition as duty limiting.  The MEB’s DD Form 2808 also separately identified the right elbow condition and it was adjudged as failing retention standards as noted on the NARSUM.  There were numerous entries in the service treatment records concerning the evaluation and treatment of the right elbow condition.  Members agreed that the functional limitations in evidence justified the conclusion that the right elbow condition was integral to the CI’s inability to perform his MOS, thus accordingly a separate rating is recommended.  The evidence reviewed by the Board did not document any physical finding or injury that would allow application of an elbow specific VASRD code on which to base a rating recommendation.  There was ample evidence supporting application of VASRD §4.59 (painful motion), which allows for a 10% rating under VASRD code 5003.  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 elbow condition.

Right Foot Pain.  The NARSUM documented that the CI reported his initial injury occurred when a helicopter ramp was placed on his right foot while deployed in January 2005.  He experienced right foot pain and swelling.   X-ray images of the right foot were negative.  He was treated with non-steroidal anti-inflammatory drugs, a brace and crutches.  The CI stated improvement with his right foot pain, but he still had discomfort and stiffness in the morning.  He observed that if he wore his boot or shoe tied tightly, the pain was better controlled than if he wore loose footwear and that the pain was exacerbated by running.  A plain film X-ray image of the right foot taken in March 2005 was normal.  The physical exam revealed pain on flexion and extension at the ankle of the right foot; however, there was no swelling, point tenderness, or joint abnormalities on the right foot.  The MEB’s DD Form 2808 documented “subjective tenderness to palpation dorsal Rt. foot.”  There were no entries in the service treatment records concerning the right foot.  There was no VA C&P examination performed on the right foot; therefore based on the service treatment records the condition was granted a 0% rating.

The Board directs attention to its rating recommendation based on the above evidence.  The Board first considered if the right foot condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above.  Members agreed that, based on the above evidence, there was a questionable basis for arguing that it was separately unfitting.  The well-established principle for fitness determinations is that they are performance-based.  The right foot condition was noted on the profile completed at entry into the disability evaluation system.  It was also determined to fail retention standards on the NARSUM.  However, the Board could not find evidence in the commander’s statement or elsewhere in the service treatment record that documented any significant interference of the right foot condition with the performance of duties at the time of separation, nor were any physical findings documented by the MEB which would logically be associated with significant disability.  After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the right foot condition was integral to the CI’s inability to perform his MOS and accordingly cannot recommend a separate rating for it.

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 for rating right knee, right elbow and right foot conditions was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the right knee pain condition, the Board unanimously recommends a disability rating of 10% coded 5299-5003 IAW VASRD §4.71a or §4.31.  In the matter of the right elbow pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5003 IAW VASRD §4.71a.  In the matter of the right foot pain condition, the Board unanimously recommends that it was not reasonably justified as separately unfitting and therefore it cannot recommend it for an additional disability rating.  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	
Right Knee Pain	5299-5003	10%	
Right Elbow Pain	5299-5003	10%	
Right Foot Pain	Not Unfitting	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131028, 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, AR20150004752 (PD201302006)

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