RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00284
BRANCH OF SERVICE:  ArmY	BOARD DATE:  20150108
SEPARATION DATE:  20030414 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (91WM6/Licensed Practical Nurse) medically separated for lumbar spine and right knee conditions.  The 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 back and knee conditions, characterized as “lumbar degenerative disc disease” and “torn anterior and posterior horn left lateral meniscus causing chronic right knee pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated both conditions as unfitting, rated 0% each, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no specific contention in his application.

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 lumbar and right knee conditions are addressed below; 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 Admin IPEB – Dated 20030109	VA (3 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Back Pain 	5299-5295	0%	Degenerative Disc ... Lumbar Spine	5293	0%*	20030116	
Right Knee Pain 	5010	0%	Degenerative Arthritis, Bilateral Knees	5003	10%	20030116	
Other x 0  (Not in Scope)	Other x 4 (Not in Scope)	20030116	
Combined:  0%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20030415 (most proximate to date of separation [DOS]).
* The VARD dated 20040722 increased the DDD and spondylosis rating to 10% using code 5242-5003 retroactive to 20030415.

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The service treatment record (STR) corroborates the narrative summary (NARSUM) account of a back injury from a sports fall on 8 May 1993.  This was managed conservatively, with periods of activity restriction, until complaints of back pain escalated in late 1999, with increasingly frequent STR entries after that.  Magnetic resonance imaging (MRI) revealed degenerative disc disease at L4 through S1, with some “mild” bulging at L5/S1.  Surgery was considered and deferred.  A physical therapy (PT) entry in March 2001 noted back pain (no radicular symptoms) worsened by “excessive activity,” with decreased range-of-motion (ROM) and flexion to 50% of normal.  An orthopedic entry in August 2001 recorded full ROM; and, was one of multiple entries documenting normal neurological findings with 5/5 strength.  An orthopedic entry over a year later (September 2002, 7 months prior to separation) again recorded full ROM and normal neurological findings.  No STR entries document gait disturbance, significant ROM limitations (or painful motion), neurological deficits, or periods of incapacitation.  The NARSUM was dated 4 October 2002 (6 months prior to separation), and described “low back pain, even at rest, that he rates as 4/10.  Activity (repetitive lifting), standing over 30 minutes, crawling, bending, stooping and ‘moving the wrong way’ cause the pain to increase to 7/10 [requiring five hours rest to return to baseline].” The physical exam noted normal spinal contour, the absence of tenderness, and detailed normal strength (5/5) and neurological findings.  Measured ROM was flexion of 90 degrees (normal) and combined ROM of 230 degrees (normal 240 degrees).

A VA Compensation and Pension (C&P) evaluation was conducted on 16 January 2003 (3 months prior to separation); the examiner did not elaborate the severity (or nature) of symptoms or limitations regarding the lumbar condition.  The VA physical exam documented a normal gait, normal spinal curvature, the absence of spasm, and normal neurological findings.  The VA ROM measurements were normal (flexion 90 degrees and combined 240 degrees) specifically annotating the absence of painful motion.  The VA examiner concluded, “There is no pathology to render a diagnosis.”  At another VA C&P examination on 7 January 2004 (9 months after separation) the CI noted radiating low back pain, noting flexion of 65 degrees with painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The 2003 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine.  The applicable coding options for this case are excerpted below.
5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40	
Moderate ................................................................................................................................. 20		
Slight ........................................................................................................................................ 10
           5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with: sciatic neuropathy with 
   characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other 
   neurological findings appropriate to site of diseased disc, little intermittent relief ............ 60
Severe; recurring attacks, with intermittent relief .................................................................. 40
Moderate; recurring attacks .................................................................................................... 20
Mild .......................................................................................................................................... 10
Postoperative, cured ................................................................................................................. 0
5294 Sacro-iliac injury and weakness [directs rating to 5295]
5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, 
marked limitation of forward bending in standing position, loss of lateral motion 
with osteo-arthritic changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion ...................................................... 40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral,
 	          in standing' position ............................................................................................................. 20
With characteristic pain on motion ......................................................................................... 10
The PEB’s 0% rating analogous to 5295 is justified under that code since there was not documented painful motion.  The VA’s 0% rating under 5293 was a reasonable reflection of the VA examiner’s physical findings and diagnostic conclusion.  The Board, with deference to VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), deliberated whether the minimum 10% rating could be reasonably recommended.  Rating options under the above spine codes were deliberated.  Prior to separation examinations noted lumbar spine ROMs were normal; however, 9 months after separation, at a follow-up VA examination flexion was decreased and was associated with moderately severe pain.  Therefore, a rating of 10% was a consideration using code 5292 (slight) or code 5295 (pain on motion).  However, the ROM values reported by the VA examiner, 9 months after separation, were worse than those reported by the MEB and VA prior to separation.  There is no record of recurrent injury or other development to explain the increased impairment reflected by the post-separation VA measurements.  The recorded ROM values were derived from subjectively reported pain thresholds in the context of an examination for a disability rating, thus subject to loss of objectivity.  The Board concluded that the MEB and VA prior to separation evidence carried the determinant probative value for the Board’s recommendation.  Although the CI experienced occasional sharp radiating pain to the buttock and leg areas prior to separation, the NARSUM reported examinations and the VA examination noted no muscle spasm, no limitation of motion or pain on motion, no abnormal neurologic findings, and no involvement of the sacroiliac joints.  However, imaging studies did reveal degenerative changes.  The Board therefore considered if a minimum 10% rating analogous to 5003 (degenerative arthritis) could be justified via VASRD §4.59 (painful motion) or VASRD §4.40 (functional loss).  Members concluded, however, that painful motion was not satisfactorily demonstrated by the available evidence; nor were the provisions of §4.40 satisfied by the evidence.  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 low back condition.

Right Knee Condition.  The CI injured his right knee during the same 1993 sports mishap noted for the lumbar condition.  After that evaluation there are no STR entries in evidence until 1997, which notes a complaint of right knee pain.  The knee was stable with no evidence of cartilage or ligament injury, and was diagnosed as patellofemoral syndrome (tendonitis).  There are scattered treatment notes after that with the same diagnosis; with documentation of benign exams (no instability, no signs of cartilage impingement, and no effusions) and grossly normal ROM.  Measured ROM by PT in July 2002 was flexion to 130 degrees (normal 140 degrees) and extension 0 degrees (normal).  Although earlier X-rays noted only mild degenerative changes, an MRI in August 2002 demonstrated meniscal injuries (tear posterior horn and defects anterior horn of medical meniscus).  An orthopedic evaluation the following month recorded negative exam findings (per the NARSUM) and full ROM; surgery was not recommended; and, the CI was referred for PT.  The October 2002 commander’s statement referenced above for the lumbar condition stated, “Even with his diagnosis of torn medial meniscus he tries to maintain performance standards even with pain.”  The NARSUM documented knee pain at rest rated 3/10, with exacerbations to 9/10 with “running over 2 miles, climbing stairs, bending, kneeling and standing over 10 minutes.”  The physical exam recorded “crepitus on movement of the right knee,” the absence of tenderness or swelling, negative signs of meniscal impingement, no instability to stress testing, and “full [ROM] without pain.”  The prior to separation VA C&P examination (same as above) did not elaborate pain or limitations; and, the physical exam was normal without effusion or instability.  Measured ROM was normal:  flexion 140 degrees, extension 0 degrees, absence of painful motion specified.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating under 5010 (traumatic arthritis) referenced the “unremarkable” orthopedic examination described above and cited in the NARSUM.  The VA’s 10% rating was achieved by invoking a bilateral knee condition with degenerative changes on a comparison X-ray of the presumably asymptomatic left knee, thus satisfying criteria under 5003 (degenerative arthritis) for two or more major joints with degenerative findings on X-ray.  This approach clearly cannot be justified as a rationale for a Board recommendation, with no basis for including the left knee in a rating (in reality it was not service-connected for VA rating either).  However, the Board found an alternative route to a 10% rating using code 5024 (tenosynovitis) by relying on the NARSUM examination finding of “crepitus on movement” IAW VASRD §4.59, which addresses painful motion and crepitation specifically in soft tissue and joints.  In the absence of instability, no additional route for a higher rating could be found.  The Board further noted that even in the absence of separately compensable ratings for the spine and joint conditions in this case, an overall rating of 10% for both conditions is justified as two or more major joints under the analogous code 5003 (consolidating both unfitting conditions under a single rating).  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.

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 did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board recommends no change in the PEB adjudication.  In the matter of the right knee condition, the Board recommends a disability rating of 10%, coded 5024 IAW VASRD §4.71a.  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	
Lumbar Spine	5299-5295	0%	
Right Knee	5024	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130917, 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, AR20150007650 (PD201400284)

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 10% 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						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA