RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00364
BRANCH OF SERVICE:  Army	BOARD DATE:  20150402
SEPARATION DATE:  20071004

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for low back, bilateral knees and hearing loss.  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 H3 profile and referred for a Medical Evaluation Board (MEB).  The “herniated disc,” “spondylosis,” “patellofemoral syndrome, both knees” and “hearing loss” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (posttraumatic stress disorder [PTSD]) for PEB adjudication.  The Informal PEB adjudicated “chronic degenerative disc disease, with facet hypertrophy and disc protrusion at L2-3,” “bilateral patellofemoral pain syndrome” and “bilateral high frequency sensorineural hearing loss” as unfitting, rated 10%, 0% and 0% respectively.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Chronic degenerative disc disease- 10%- back pain has increased.  Bilateral patellofemoral pain syndrome 0% - knee pain has increased.  Bilayer high freq.  sensorineural hearing loss 0%- hearing loss has increased.  Post-traumatic stress disorder 0%.”

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 20070910	VA* - (~5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Degenerative Disc Disease…	5299- 5242	10%	Degenerative Disc Disease with Spondylosis	5242	20%	20080227	
Bilateral Patellofemoral Pain Syndrome	5099- 5003	0%	Patellofemoral Pain Syndrome, Left Knee	5299-5260	10%	20080227	
			Patellofemoral Pain Syndrome, Right Knee	5299-5260	10%	20080227	
Bilateral High Frequency Sensorineural Hearing Loss	6100	0%	Bilateral Hearing Loss 	6100	0%	20080227	
PTSD	Not Unfitting	Post-Traumatic Stress Disorder 	9411	10%	20080227	
Other x 0 (Not In Scope)	Other x 1	
RATING:  10%	RATING: 40%	
*Derived from VA Rating Decision (VARD) dated 20080513 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Degenerative Disc Disease.  Orthopedic consultation dated 31 July 2007 recorded the history of gradual onset, non-traumatic thoracolumbar pain that begun during his deployment to Afghanistan June 2006.  The CI noted his pain was sharp and burning, and occurred with tactical driving and heavy lifting, and improved with rest.  Physical examination documented normal gait and stance, and “normal” range-of-motion (ROM) flexion, extension, and rotation of the thoracolumbar spine.  Tenderness was noted in the T12 and L5 area; however, muscle spasm was absent, and there was no evidence of neurological compromise on testing.  The condition of lumbago (low back pain) was assessed.  Radiographs of the lumbosacral spine demonstrated signs of early degenerative joint disease at L3 and T12.  Magnetic resonance imaging (MRI) of the lower lumbar spine on 7 August 2007, demonstrated normal alignment of the vertebral body, disc protrusion (herniation) at L2-3 and narrowing of several neural foramina but without evidence of significant nerve root encroachment.  Additionally, an MRI of the thoracic spine demonstrated desiccation involving several intervertebral discs at the upper to mid-thoracic level without evidence of spinal canal compromise.  The narrative summary (NARSUM) dated 30 August 2007 noted the CI’s back pain began after enlisting, but he continued to perform his duties and did not seek medical attention.  He deployed to Afghanistan and his back pain worsened.  ROM measurements of thoracolumbar spine documented an average of 100 degrees (90) forward flexion, 14 (30) for extension, and combined measurements of 182 (240).  The NARSUM referenced the focused back exam on 28 August 2007 that demonstrated tenderness to palpation at T12 level, no spasm, and normal muscle strength, and normal gait.  The examiner diagnosed herniated disc (L2-3), and spondylosis (osteoarthritis), and opined that the back pain will resolve once the CI was no longer performing activities required of a Soldier.

The VA Compensation and Pension (C&P) examination dated 27 February 2008, approximately 5 months after separation documented the CI’s history of low back pain that had not improved significantly with conservative treatment.  Since his release from service the CI reported intermittent back pain flaring up every third or fourth day, associated with bending or stooping as part of his daily routine.  The CI had not lost time from work secondary to pain, and his pain was alleviated with rest and decreased walking.  Physical examination documented normal gait and stance, mild spasm of the paravertebral muscles, flexion to 85 degrees, and extension to 5 degrees. There was slight decrease in ROM on repetition, and associated increase in pain, fatigue, and lack of endurance.  There was no evidence of neurologic deficit.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition 10% coded analogously 5299- 5242 for painful motion.  The VA used the same code to rate the condition at 20%, with the explanation that the limited ROM flexion met the scheduled 10% criteria; however, non-scheduled criteria for the decrease in ROM on repetition accompanied by lack of endurance and fatigability warranted the additional 10% rating (De Luca).  The Board noted the combined ROM recorded at the MEB was compensable but only at the 10% level.  There was no evidence of clinically significant ROM decrease with repetition; the average ROM flexion on three trials averaged 100 degrees.

The Board also considered code 5243 (intervertebral disc syndrome); however, this code did not support a higher rating since there was no evidence of incapacitating episodes of at a duration of 6 weeks.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the back condition.

Bilateral Knees.  The orthopedic examination for the MEB dated 31 July 2007 documented full ROM of both knees, absence of tenderness, instability, inflammation, neuromuscular compromise, and absence of neurologic deficit.  The single finding of crepitus noted in both knees was recorded.  The CI reported bilateral knee pain in the retropatella area present for 3 years.  The pain was noted on squatting, stair climbing and running, and was relieved with rest.  Radiographs of bilateral knees demonstrated no evidence of fracture, dislocation, or other abnormality, and documented the knees were normal.  The examiner diagnosed patellofemoral syndrome.  The NARSUM recorded knee pain began in 2005 and treatment was not sought until after re-deploying.  The CI reported that his pain increased with jumping, climbing and descending stairs, but that he had been able to walk about 5 miles on a nature trail and had to rest the entire day following the walk due to knee pain.  The NARSUM documented that a focused knee exam on 28 August 2007 (2 days prior to the NARSUM) recorded full ROM in knees, no instability and no tenderness to palpation.  The examination documented positive patella grind bilaterally, left worse than right.  The CI was able to heel and toe walk, and had a normal gait.  The ROM recorded for the MEB on 30 August documented right knee flexion on three trials, 133, 134, and 135; left knee flexion 130, 134, and 135 degrees.  The examiner indicated the absence of painful motion.  The NARSUM examiner diagnosed patellofemoral syndrome, bilateral, failed retention standards, and pain assessed as minimal and constant.  Knee examination at the VA C&P examination documented “full flexion to 110 degrees” both knees, no evidence of instability, inflammation, and minimal crepitus bilateral knees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB bundled the knees for a 0% rating coded analogously 5003.  The VA rated the knees separately and assigned an evaluation of 10% each knee based on lack of full flexion (140) and pain on motion.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 the Board must follow suit 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 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.  The Board determined that it was appropriate to “unbundle” the knees, and consider each knee as a separate major joint.  At the time of separation from service, the NARSUM noted that both knees were not painful to motion and both knees had good ROM.  In fact, all three goniometric exams described above showed decreases in ROM; however, the ROM limitation recorded did not meet VASRD criteria for a disability percentage (based upon Knee and Leg codes, 5260 and 5261).  The Board next considered if §4.59 was applicable in this case.  The Board noted the absence of documented painful motion at the NARSUM, the orthopedic examination for the MEB, and the physical therapy examination, all within 1 to 2 months prior to separation, and the C&P exam that documented painful motion 4 months after separation.  After considerable deliberation, Board members agreed applying §4.59 were not supported by the preponderance of evidence.  There were no additional coding options applicable to this case to consider.  Furthermore, The Board concluded there was no benefit in unbundling the knees since neither would result in a separate rating higher than 0%.  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 determination for the bilateral knee condition.

Bilateral Hearing Loss.   The audiology evaluation dated 27 April 2007 documented bilateral moderate to severe high frequency sound hearing loss, diagnosed as sensorineural hearing loss.  At the ENT evaluation performed on 24 May 2007, the CI reported he had experienced post-deployment decline in hearing, and had constant ringing in both ears.  He often experienced left ear stabbing pain upon awakening, and occasionally had right ear pressure and popping similar to the sensation of being on an airplane.  Examination of the ears was normal and the physician assessed hearing loss.  The NARSUM noted that there had been a significant change in his hearing from the time of enlistment, and documented that full evaluation to include hearing tests, auditory brainstem responses, and the speech recognition in noise test (SPRINT, performed in military when H-3 hearing level is identified), and ENT evaluation had confirmed hearing loss.  It was noted that the result of the SPRINT placed the CI in category E (separation).  The hearing loss condition did not allow the CI to perform his duties without hearing protection gear, and prevented him from hearing oral commands, and there were other hearing limitations that interfered with duty performance.  The VARD recorded audiology examination documented left ear with 96 % discrimination, and 92% in the right ear; the average decibel loss for the left ear was 18 and 29 for the right.  The findings were consistent with the diagnosis of moderate, high frequency, sensorineural hearing loss.

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA coded the condition 6100 with 0% rating.  The PEB cited decibel loss bilateral ear of 27.5 with speech discrimination at 100%.  These values from PEB and VA correspond to a Roman I, representing 0% evaluation.  The higher rating of 10% under the 6100 code requires a more severe hearing loss (must demonstrate Roman X or Xl), not supported by the evidence.  There were no other applicable codes to consider.  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 determination for the bilateral hearing loss condition.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the condition of PTSD was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board noted the absence of mental health treatment records; however, noted that a memorandum to the MEB from the department of behavioral health which documented PTSD condition that improved with treatment.  The psychiatrist noted that the condition did not meet criteria for a MEB.  The NARSUM documented PTSD as meeting retention standards.  The PTSD was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  There was no performance based evidence from the record that any mental health 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 the PTSD condition and so no additional disability rating are 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 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 chronic degenerative disc disease condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral patellofemoral pain syndrome condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral high frequency sensorineural hearing loss condition and IAW VASRD §4.87, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended PTSD condition, 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 20140110, 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, AR20150013228 (PD201400364)

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