RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00182
BRANCH OF SERVICE:  Army	BOARD DATE:  20150211
Separation Date:  20050625

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a drilling National Guard E-6 (Field Artillery) medically separated for a knee and neck condition.  The knee and neck conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The knee and neck conditions, characterized as “right knee pain” and “chronic neck pain, existed prior to service (EPTS), but permanently aggravated by service,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (right elbow pain and post-phlebitic syndrome).  The Informal PEB adjudicated “right knee pain” and “chronic neck pain” as unfitting, rated 10% and “---%” respectively, citing the US Army Physical Disability Agency (USAPDA) pain policy for the knee and the Veterans Affairs Schedule for Rating Disabilities (VASRD) for the neck.  Additionally, the PEB identified the neck condition as EPTS and not permanently aggravated beyond natural progression by such service.  The PEB further adjudicated the right elbow pain and post-phlebitic syndrome conditions as not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI writes: “injury to the right knee, right elbow.  The right knee has been operated on twice to correct the injury with no relief, the condition has worsened.”

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/Naval 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 Veterans Affairs Schedule for Rating Disabilities (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 20070330	VA - (6 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain	5099-5003	10%	Degenerative Osteoarthritis, Right Knee	5010	10%	20061120	
Chronic Neck Pain	5299-5242	---%	Neck Condition	5237	Not Service Connected		
Right Elbow Pain	Not Unfitting	Olecranon Spur, Right  Elbow	5015	10%		
Other x 1 (Not in Scope)	Other x 2	20061120	
Combined:  10%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20070130 prior to his date of separation [DOS], with an effective date of 20060424 when the CI filed and 20061002 for the R Elbow and the 40%

ANALYSIS SUMMARY:

Right Knee Pain Condition.  The CI injured his right knee in June 2005 when he was doing three to five rushes in a gravel area, fell and caught his knee on the gravel.  A right knee X-ray was normal.  The civilian Orthopedist documented popping, catching and locking of the right knee.  There were physical exam findings of positive medial joint line tenderness, positive Mc Murrays sign, and pain with maximum flexion.  The examiner diagnosed right medial meniscal tear.  The CI underwent a right knee arthroscopy and partial medial meniscectomy on 8 December 2005.  The CI had chronic post-operative pain and he underwent a cortisone injection on 9 January 2006, which provided only one day of pain relief.  The physical therapist (PT) noted that the CI continued to have pain in the medial aspect of the knee that felt just like it did prior to surgery.  There physical exam findings of range-of-motion (ROM) for flexion limited to 0-125 degrees (normal 140).  The PT performed ROM’s for the MEB narrative summary (NARSUM) exam that is summarized in the chart below.  The right knee X-ray noted mild medial femorotibial subluxation, minimal degenerative changes and a small ossification at the soft medial tissue.  The VA Compensation and Pension (C&P) exam approximately 6 months prior to separation documented chronic right knee pain rated at 5-6/10 with pain flares rated at 8-9/10 at least 3-4 times a week lasting for several hours.  He reported that he had problems at his civilian job performing defensive tactics while grappling with inmates as a correctional officer.  The VA C&P physical exam findings are summarized in the chart below.  The MEB NARSUM exam approximately 3 months prior to separation documented chronic right knee pain, locking and occasional morning swelling.  The knee symptoms were aggravated by going upstairs, prolonged standing, prolonged sitting and trying to do any running.  The examiner further noted that he CI would wear a brace as needed.  The MEB NARSUM physical exam findings are summarized in the chart below.

Right Knee ROM (Degrees)	PT ~8.5 Mo. Pre Sep	VA C&P ~6 Mo. Pre-Sep	MEB ~3Mo. Pre-Sep	
Flexion (140 Normal)	123	115	123	
Extension (0 Normal)	-3	0	-3	
Comment	No painful motion; No instability or crepitus	Pos. painful motion & antalgic gait; No instability	Pos. painful motion; No instability	
§4.71a Rating	0%	10%* (VA 10%)	10%* (PEB 10%)	
* IAW VASRD §4.59

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the right knee pain condition as 5099-5003 (Arthritis), degenerative (hypertrophic or osteoarthritis) and rated at 10% with application of the USAPDA pain policy.  The VA coded the degenerative osteoarthritis, right knee as 5010 (Arthritis), due to trauma, substantiated by X-ray findings and rated at 10%.  VASRD §4.71a specifies for 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion” and VASRD §4.59 (Painful motion) provides an alternate justification for a 10% rating.  There was no evidence of instability or any other right knee condition that could be rated higher than 10% using any reasonable alternate rating schema.  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 right knee pain condition.

Chronic Neck Pain Condition:  The CI injured his neck during hurricane Ivan in September 2004 from lifting heavy bags.  At that time, he was a member of a State National Guard unit.  The CI felt pain and radicular symptoms that radiated into his left upper extremity.  He underwent conservative treatment with Physical Therapy, non-steroidal anti-inflammatory drugs and activity limiting profiles.  The CI continued with worsening cramps of the arms with tingling at the back of the arm, exacerbated by heavy lifting with storm recovery.  An electromyogram demonstrated evidence of a C5-C6 left nerve root lesion - cervical radiculopathy.  A cervical spine magnetic resonance imaging showed a posterior disc protrusion C5-6, multi-level neural foraminal narrowing.  A civilian neurologist documented aggravated neck and left shoulder pain after having to restrain an inmate in his civilian position.  There were normal physical exam findings of the neck and left upper extremity.  A cervical spine X-ray showed mild spondylosis of the cervical spine form C4 through C6 with small marginal spurs and mild neural encroachment form C3-C6 bilaterally.  The occupational therapist (OT) performed goniometric ROM measurements for the MEB exam which are summarized in the chart below.  The CI was followed by OT for treatment of the neck pain.  The commander’s statement focused solely on the knee condition, there was no mention of a neck injury.  The CI was given a permanent U3 profile for chronic back pain (cervical), however there were no restrictions specific to neck pain as he was able to wear his helmet.  The VA C&P examiner made no mention of a neck injury condition.  The MEB NARSUM exam approximately 3 months prior to separation documented that the CI continued to have pain rated at 8/10 aggravated by lifting and bending.  The examiner opined that although the neck problem was “clearly a long standing condition” …“it was aggravated during his training exercise.”  The MEB NARSUM physical exam findings are summarized in the chart below.

Cervical ROM (Degrees)	PT ~3 Mo. Pre-Sep	MEB ~3 Mo. Pre-Sep	
Flex (45 Normal)	45 	ROM’s used from PT exam	
Combined (340)	340		
Comment	No painful motion	Pain limited (mildly) ROM; No tenderness	
§4.71a Rating	0%	0%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic neck pain condition as 5299 analogous to 5242 (degenerative arthritis of the spine) and adjudicated as EPTS without service aggravation (no rating was granted); however, the MEB forwarded the condition as “service aggravated –yes.”  The VA coded the neck condition as 5237 (Lumbosacral or cervical strain), and was not granted service-connection.  The VA’s decision was based on the fact that the CI had no medical treatment and there was no diagnosed neck condition while on active duty or that this condition was due to active duty service.  The Board’s main charge regarding this condition is evaluation of the PEB’s EPTS determination without service aggravation.  The Board’s authority for recommending a change in the EPTS determination is not specified in DoDI 6040.44, but is considered adjunct to its DoD-specified obligation to review fitness adjudications.  As with its consideration of fitness adjudications, the Board’s threshold for countering EPTS 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 data supports that the neck pain condition was due to an injury that occurred when the CI was not in a period of active duty service and there was no completed line of duty determination present for review.  The data supports that the CI’s neck ROM measurements were completely normal with equivocal evidence for painful motion IAW VASRD §4.59.  After a thorough discussion and review of the evidence, and based on PT documentation of full ROM measurements and MEB documentation of no point tenderness, all Board members agreed that the chronic neck pain condition should be rated at 0%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% for the chronic neck pain condition.

Contended PEB Conditions.  The contended condition adjudicated as not unfitting by the PEB was the right elbow pain.  The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudications.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations and requires a preponderance of evidence.  Although the right elbow pain condition was profiled at entrance into the disability evaluation system, there were no additional restrictions related to the elbow condition.  The commander’s statement focused solely on the right knee condition and there was no mention of the right elbow condition interfering in the MOS duty performance.  This condition was not judged to fail retention standards.  The MEB examiner documented that although the CI had problems lifting because of the pain; this condition had “not interrupted his career” and did not fail retention standards.  The right elbow pain condition was reviewed by the action officer and considered by the Board.  There was no indication from the record that any of this 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 right elbow pain contended condition and, therefore, no additional disability rating can be 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 pain policy (635-40) for rating the right knee pain condition 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 and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic neck pain condition, the Board unanimously recommends a disability rating of 0%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the contended right elbow pain condition, the Board unanimously recommends no change from the PEB determinations 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	
Right Knee Pain	5099-5003	10%	
Chronic Neck Pain	5299-5242	0%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131229, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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, AR20150011015 (PD201400182)

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 description without modification of the combined rating or 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		
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA