RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	 CASE:  PD-2014-00052	
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060902		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-6 (Military Police) medically separated for left ankle pain and low back pain.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic left ankle pain” and “chronic low back pain” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  Two other conditions (bilateral patellofemoral syndrome and gastroesophageal reflux disease) were also forwarded for PEB adjudication.  The Informal PEB adjudicated the “chronic left ankle pain” as unfitting, rated 10% citing application of the US Army Physical Disability Agency (USAPDA) pain policy and “chronic radiating low back pain” (LBP) as unfitting, rated 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were found to be not unfitting.  

CI CONTENTION:  His left ankle, back and bilateral knee conditions continue to worsen and negatively impact his daily activities.  Additionally, he was not evaluated for his tinnitus condition.  His complete submission is at Exhibit A.

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:  
   
Service IPEB – Dated 20060615	VA – (9 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Ankle Pain	5099-5003	10%	Chronic Left Ankle Condition	5271	20%	20070614	
Chronic Low Back Pain	5243	10%	Chronic Lumbar Strain 	5010-5237	20%		
Bilateral Knee Pain	Not Unfitting	Bilateral Knee Pain	5299-5257	10%	STR	
Other x 1  (Not in Scope)	Other x 7 	
Combined:  20%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20070822 (most proximate to date of separation [DOS])   

ANALYSIS SUMMARY:  

Low Back Pain.  In 2000, this CI developed LBP while doing intensive military training.  Initially, he was treated with medication, physical therapy (PT), and other conservative treatment modalities.  Then in January 2006, he had an L5-S1 laminectomy.  After surgery, he continued to have significant problems with LBP, and an MEB was initiated.  The MEB physical examination (PE) was on 9 April 2006.  The CI was able to stand on either foot individually, and was able to heel/toe walk without difficulty.  There was mild tenderness over the lumbosacral area.  Straight leg raise was negative bilaterally, and neurological exam was normal.  There was normal range-of-motion (ROM) of the lumbar spine.  Eleven days later, on 20 April 2006, lumbar ROM was measured by PT.  Those ROM values showed some limitation of motion, and are summarized in the chart below.  

The CI was medically separated from service on 2 September 2006.  Nine months later, on 14 June 2007, he had a VA Compensation and Pension (C&P) exam.  He was not working, but was a full-time student at that time.  He reported that his “severe” pain had resolved, but he continued to have “moderate” pain.  There were certain activities that would cause pain, such as carrying a backpack with books.  When a flare-up of LBP occurred, it lasted for 1 to 3 hours.  The pain was alleviated by sitting, resting, and heat.  During a flare-up, his ROM was limited by more than 50%, and he had difficulty functioning for a few hours.  On PE, his gait was normal.  He was able to walk on heels and toes without difficulty.  There was no tenderness to palpation (TTP) over the spine, or in the paraspinous musculature.  There was no abnormal spinal curvature, and no visible spasms.  He was able to do repetitive forward flexion without discomfort.  Neurological exam was normal.  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation are summarized below.

Thoracolumbar ROM
(Degrees)	VA C&P 
~ 29 mos. Pre-Sep
(20040408)	MEB (NARSUM)
~ 5 mos. Pre-Sep
(20060409)	MEB (PT)                          ~ 4 mos. Pre-Sep
(20060420)	VA C&P 
~ 9 mos. Post-Sep
(20070614)	
Flexion (90 Normal)	90	“normal”	45	90	
Extension (30)	30	“normal”	10	0	
R Lat Flexion (30)	30	“normal”	15	30	
L Lat Flexion (30)	30	“normal”	15	30	
R Rotation (30)	80	“normal”	20	30	
L Rotation (30)	80	“normal”	20	30	
Combined (240)	240	“normal”	125	210	

The Board directed attention to its rating recommendation based on the evidence.  The Board noted the disparity in the ROM exams described above.  On 20 April 2006, when ROM was measured by PT, it was highly likely that the examiner may have recorded the degree at which pain began.  But, IAW the VASRD §4.71a General Rating Formula for Diseases and Injuries of the Spine, spinal ROM should be measured and recorded with or without symptoms such as pain. Therefore, the Board determined that the ROM measurements done by PT on 20 April 2006 had diminished probative value.
 
On 24 April 2006, the NARSUM examiner stated that there was “normal range of motion of lumbar spine.”  However, IAW VASRD §4.40 (Functional loss) and §4.59 (Painful motion), when part of the musculoskeletal system becomes painful with use it must be considered disabled.  A disability rating of 10% is warranted when there is satisfactory evidence of functional loss due to painful motion. The Board determined that a separation disability rating of 10% was appropriate for the chronic LBP.  The Board tried to find a path to a higher rating.  There was not sufficient evidence of muscle spasm or guarding severe enough to cause abnormal gait or abnormal spinal contour.  The Board considered using other diagnostic codes which could be applied to the CI’s condition. The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a seriously disabling back condition or spinal abnormality which would justify a higher rating.  

The Board also considered the matter of radiculopathy.  After review of all the information in the record, there was insufficient evidence of a clinically significant radiculopathy that interfered with performance of military duties.  Therefore, the Board concluded that there was no unfitting radiculopathy present at the time of separation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication of the LBP condition.   

Chronic Left Ankle Pain.  In 1999, the CI injured his left ankle while pursuing a fleeing suspect.  In September 2001, he had arthroscopic surgery on the left ankle.  Four years later, in August 2005, a second surgical procedure was done on the left ankle.  After surgery, he continued to have problems with left ankle pain.  At the time of his MEB (April 2006), he reported that the ankle pain was usually minor, but became severe with certain activities.  PE of the left ankle showed some tenderness to palpation (TTP), but no swelling.  There was full ROM, without crepitus.  The ankle was stable to inversion tilt, and anterior drawer.  Eleven days after that MEB exam, left ankle ROM was measured by PT.  Those ROM values are summarized in the chart below.  

On 14 June 2007, the CI had a VA Compensation and Pension (C&P) exam.  The CI reported that his ankle pain had improved.  He still had significant discomfort and stiffness anytime he rested his ankle, or had to bear weight.  Initial weight-bearing caused significant discomfort.  Once he got going, he was able to walk up to a mile with minimal discomfort, as long as he walked at his own pace.  On PE, his gait was normal.  He was able to walk on heels and toes without difficulty.  On PE of the left ankle, the surgical scar was well-healed and non-tender to palpation.  ROM was measured, and is summarized in the chart below.  During ROM testing, there was pain at the maximum range of motion.  Repetitive motion did not increase the pain, nor cause further decrease in ROM.  The ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Left Ankle ROM
(Degrees)	VA C&P 
~ 29 mos. Pre-Sep
(20040408)	MEB (NARSUM)
~ 5 mos. Pre-Sep
(20060409)	MEB (PT)                          ~ 4 mos. Pre-Sep
(20060420)	VA C&P 
~ 9 mos. Post-Sep
(20070614)	
Dorsiflexion (20 Normal)	20	“full”	5	10	
Plantar Flexion (45)	45	“full”	48	30	

The Board directed attention to its rating recommendation based on the evidence. The Board determined that, at the time of separation, the CI’s limitation of ankle motion was best described as “moderate.”  There was insufficient evidence in the record to support classifying the left ankle condition as “marked.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the left ankle condition.  

Bilateral Patellofemoral Syndrome.  For several years, the CI had a history of bilateral knee pain, primarily with running.  The Army PEB adjudicated the knee condition as “not unfitting and therefore not ratable.”  The Board’s main charge with respect to this knee condition is to assess the appropriateness of the PEB’s adjudication.  The Board’s threshold for countering a fitness determination 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.  This condition was thoroughly reviewed by the action officer and considered by the Board.  The knee condition was not specifically profiled, nor was it judged to fail retention standards.  The Board determined that there was insufficient evidence in the record that the knee condition significantly interfered with satisfactory performance of military duties.  After due deliberation, and in consideration of the preponderance of the evidence, the Board found insufficient cause to recommend a change in the PEB adjudication of the knee condition (Bilateral patellofemoral syndrome).  Therefore, 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.  The Board noted that PEB reliance on the USAPDA pain policy may have been operant in this case.  The CI’s chronic LBP and chronic left ankle pain were adjudicated independently of that policy by this Board.  In the matter of the chronic LBP condition and IAW VASRD §4.40 and §4.59, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic left ankle pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral patellofemoral syndrome, 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 re-characterization of the CI’s disability and separation determination.   

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131222, 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 XXXXXXXXXXXXXXXXXXXX, AR20160001861 (PD201400052)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA