RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00405
BRANCH OF SERVICE:  Army 	
DATE PLACED ON TDRL:  20020521	DATE REMOVED FROM TDRL:  20051221

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E6, Light Wheeled Vehicle Mechanic, medically separated from the Temporary Disability Retired List (TDRL) for “bilateral knee arthritis,” “asthma,” “low back pain” and “right ankle (osteochondral defect),” with a combined disability rating of 20%.  

CI CONTENTION:  “As an active duty soldier with over 16 years of service, I was never advised by the medical board that I could have applied for Continuation of Active Duty.  The board rating was inconsistent with my medical conditions.”  The applicant’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 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 PEB – 20020205/20051216	VARD - 20030305	
Condition	Code	Rating	Condition	Code	Rating
Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Right Ankle Injury	5271	20%	--	Residual Injury, Right Ankle	5010-5271	10%	10%	
	5099-5003	--	0%					
Asthma	6602	10%	10%	Asthma	6602	30%	30%	
Bilateral Knee Arthritis	5003	0%	10%	Left Knee Injury	5010-5260	10%	10%	
				DDD, Right Knee	5010-5260	10%	10%	
Low Back Pain	5299-5295	0%	--	DDD, Lumbar Spine	5293	0%	--	
	5299-5237	--	0%	DDD, Lumbar Spine	5010-5243	--	20%	
				Radiculopathy, LLE	8599-8520	--	10%	
				Thickening Vertebrae	5299-5003	NSC	NSC	
Headaches	8199-8100	0%	Not Unfitting	Migraine Headache	8100	0%	30%	
Mixed Hyperlipidemia	Not Unfitting	No VA Placement	
Dry Eye Syndrome	Not Unfitting	Dry Eye Syndrome	6099-6025	0%	0%	
Mild Carpal Tunnel Syndrome	Not Unfitting	Carpal Tunnel, Left	8699-8615	0%	10%	
		Carpal Tunnel, Right	8699-8615	0%	10%	
Left Ulnar Nerve…Elbow	Not Unfitting	DJD, Right Elbow	5010-5260	0%	20%	
Right Elbow…Bursitis	Not Unfitting					
Hypertension, controlled	Not Unfitting	Hypertension	7336	0%	0%	
Chronic Orchialgia	Not Unfitting	Orchialgia, B/L…	7529	0%	20%	
Chronic Rhinitis	Not Unfitting	Chronic Rhinitis	6522	10%	0%	
Anal Fistula…Proctalgia	Not Unfitting	Anal Fistulas, P-Op	7335	0%	0%	
		Proctitis	7399-7332	NSC	NSC	
Cardiac Palpitations	Not Unfitting	Heart Disease	7099-7010	NSC	NSC	
COMBINED RATING:  30% → 20%	COMBINED RATING OF ALL VA CONDITIONS:  60% → 100%	

ANALYSIS SUMMARY:   The Board noted that regarding the bilateral knee condition, the PEB combined the right and left knee conditions as a single unfitting condition coded analogously to 5003.  The approach by the PEB not uncommonly reflected its judgment that there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints may be permissible under the VASRD 5003 rating requirements.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  
Also, regarding the low back condition, the Board noted that the 2002 Veterans Administration Schedule for Rating Disabilities (VASRD) standards for the spine were in effect at the time of TDRL entry, whereas the current §4.71a rating standards (effective as of 26 September 2003), were applicable at the time of the CI’s date of permanent separation.  The Board is required to recommend a rating IAW the VASRD in effect at the time of separation in accordance with DoDI 6040.44.  Therefore, the Board must recommend a rating at TDRL entry according to the 2003 rating schedule and a rating at permanent separation according to the current VASRD rules for rating the spine. 

Right Ankle Injury.  According to the service treatment records (STR) and the MEB narrative summary (NARSUM) examination on 18 December 2001, 5 months before separation, the CI was referred for a Medical Evaluation Board (MEB) due to osteoarthritis of the right ankle.  The CI had a history of a right ankle sprain and underwent arthroscopic surgery for repair of ostechondritis dissecans (a small segment of bone that begins to separate due to impaired blood supply).  However, he continued to have ankle problems and a computed tomography (CT) scan in April 2000 showed an osteochondral defect (OCD) with loose bodies, and degenerative arthritis.  At an orthopedic evaluation on 2 October 2000, the CI reported ankle pain and a feeling of instability and use of a brace at times.  The exam noted no swelling and the CI was able to single leg stand and stand on his heels.  Ankle range-of-motion (ROM) was dorsiflexion (DF) to 10 degrees (normal 20) and plantar flexion (PF) to 30 degrees (normal 45), with crepitus.  Ankle impingement, OCD and arthritis were diagnosed and a permanent profile with an alternate APFT event was recommended.  

At the MEB orthopedic addendum exam on 1 November 2001, 7 months before TDRL entry, the CI reported pain and “giving way” of his right ankle.  The physical exam noted a normal gait.  Ankle ROM was DF to 5 degrees and PF to 35 degrees with painful ROM.  The diagnosis was degenerative joint disease of the right ankle.

At the VA Compensation and Pension (C&P) joints exam on 7 August 2002, approximately 3 months after TDRL entry, the CI reported some pain and swelling of the ankle with “catching,” especially with running.  The exam noted no swelling or tenderness to palpation (TTP).  There was normal strength and a 1+/3 anterior drawer sign (evidence of mild laxity/instability).  Ankle ROM was DF to 15 degrees and PF to 30 degrees.  Ankle X-rays noted degenerative changes of the joint with an OCD and possible loose bodies  

The Board directed attention to its rating recommendation of the ankle condition at TDRL placement based on the above evidence.  The PEB rated the ankle condition 20%, coded 5271 (limited ankle motion), and the VA Rating Decision (VARD), most proximate to TDRL placement dated 5 March 2003, rated it 10%, coded 5010-5271 (limited ankle motion with traumatic arthritis).  The Board agreed that the evidence supports a 20% rating at TDRL placement for marked limited ankle ROM and there was no evidence of ankylosis of the ankle joint to support a higher evaluation.  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 ankle condition at TDRL placement.  

At the VA C&P joints exam on 13 December 2004, approximately 12 months before TDRL removal, the CI reported some pain and swelling of the ankle with “catching,” especially with running.  He reported using non-steroidal anti-inflammatory medication (NSAIDs), with occasional use of pain medication for flares.  He was employed as a corrections officer and reported 2 weeks of lost work time in the past year due to ankle swelling.  There was no swelling or TTP of the ankle and strength was normal.  Ankle ROM was DF to 15 degrees and PF to 30 degrees, with crepitus and no significant abnormalities noted on X-rays.  

Two TDRL evaluations were performed within 3 weeks of each other.  At a TDRL evaluation dated 14 June 2005, 6 months before TDRL removal the CI reported ankle pain aggravated by weight bearing activities and the exam noted no change in the ankle ROM (DF to 5 degrees, PF to 35 degrees).  However, the CI disagreed with the evaluation and was re-evaluated.  At the TDRL re-evaluation on 6 July 2005, the CI reported increased ankle pain due to worsening DJD and controlled with NSAIDs.  Right ankle ROM was DF to 10 degrees and PF to 30 degrees.  There was no TTP or swelling and sensation and pulses were normal.  Right ankle X-rays showed post-operative changes and DJD.  The VA C&P joints exam on 29 March 2006, 3 months after TDRL removal noted tenderness and painful ROM, with normal PF of the ankle and no instability. 

The Board directed attention to its rating recommendation for the ankle condition at TDRL removal based on the above evidence.  The PEB rated the ankle condition 0%, coded 5099-5003 (analogous to degenerative arthritis), citing limited ankle motion due to pain with imaging evidence of degenerative arthritis.  The VARD on 3 May 2005 continued the 10% rating, coded 5010-5271 as did the later VARD on 15 August 2006.  The Board agreed the evidence supports that ankle ROM had improved at the time of TDRL removal.  Though it remained painful, ROM was consistent with being characterized as “moderate” limited ankle motion and not “marked,” coded as 5271, or coded according to 5003 rating criteria for limited motion of a single joint with imaging evidence of degenerative arthritis.  Thus the Board determined that the evidence supports a 10% rating for the ankle condition at TDRL removal, and no higher and chose to code as 5271.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a rating of 10% for the ankle condition.  

Asthma.  According to the STR and the MEB NARSUM examination on 18 December 2001, 5 months before separation, the CI was referred for an MEB for mild to moderate persistent asthma which required three medications.  According to the MEB pulmonary addendum on 9 October 2001, the CI had a history of shortness of breath (SOB) and wheezing for a few years.  He was prescribed an anti-inflammatory inhaler (Flovent) and a bronchodilator (BD) inhaler (Proventil), with some improvement in his symptoms.  He reported using the BD rescue inhaler several times per week.  Baseline pulmonary function testing (PFT) noted a forced expiratory volume at one second (FEV1) of 81% predicted normal (PRED) and an FEV1/forced vital capacity (FVC) ratio of 63% PRED, which did not improve after BD medication.  However, methacholine challenge testing (quantitative test of airway reactivity) was positive for asthma.  The physical exam of the lungs was normal.  At the time of the addendum, Singular, an oral allergy medication, was added to the CI's anti-inflammatory and BD inhalers.  At the VA C&P general medical exam on 5 August 2002, the CI reported regular use of two anti-inflammatory inhalers and a BD inhaler (fluticasone, Advair, and albuterol), all twice per day, and oral anti-inflammatory medication for asthma.  His reported continued asthma attacks, with the last attack approximately 3 months earlier.  Physical exam of the heart and lungs was normal; chest X-rays were normal.

The Board directed attention to its rating recommendation at TDRL placement based on the above evidence.  The PEB and VA both coded the asthma condition 6602 (asthma).  The PEB rated the asthma condition 10% and the VA rated it 30%.  The Board agreed that based on the 6602 rating criteria, the evidence supports a 30% rating for the asthma condition based upon regular use of asthma medications, including anti-inflammatory medication, or PFT criteria of “FEV-1/FVC of 56 to 70 percent.”  There was no evidence of monthly visits to a physician for care of exacerbations, at least three courses of corticosteroids (oral or intravenous) per year, or PFT criteria as specified for the next higher 60% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the asthma condition at TDRL placement.  

At a TDRL evaluation dated on 14 June 2005, the CI reported daily use of an anti-inflammatory inhaler and oral medications, and a BD inhaler as needed (Advair, Singulair).  He reported two emergency room visits for asthma since his last TDRL evaluation, with worsened symptoms due to seasonal changes.  Physical exam of the heart and lungs was normal.  At the time of the TDRL evaluation, the dose of inhaled Advair was increased due to the CI’s increasing symptoms and frequent use of the rescue inhaler.

The Board directed attention to its rating recommendation of the asthma condition at TDRL removal based on the above evidence.  The PEB continued the 10% rating of the asthma condition, coded 6602.  The VARD on 3 May 2005 continued the 30% rating, coded 6602, as did the VARD on 15 August 2006.  The Board agreed that the evidence supports a 30% rating based upon continued use of daily anti-inflammatory medication.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 30% for the asthma condition at TDRL removal.  

Bilateral Knee Arthritis.  According to the STR and the MEB NARSUM examination the CI was referred for an MEB due to osteoarthritis of the knees.  Scant notes in the record indicated treatment for left knee pain and imaging of the left knee only, which showed degenerative joint disease (DJD).  At the MEB orthopedic addendum exam on 1 November 2001, the CI reported a remote history of left knee surgery for a torn meniscus (semilunar cartilage).  He reported bilateral knee pain aggravated by prolonged standing or cold weather.  The physical exam was reported for both knees and noted a normal gait.  There was no joint line tenderness or instability.  There was full ROM with crepitus and positive patellar grind testing bilaterally. The permanent profile listed degenerative arthritis of both knees.  The commander’s statement noted the CI’s history of left knee pain and surgery and indicated that “several medical conditions” prevented the CI from performing the duties of his MOS.  The MEB orthopedic addendum noted that the CI was referred for osteoarthritis of both knees.  

At the VA C&P joints exam on 7 August 2002, approximately 3 months after TDRL placement, the CI reported bilateral knee pain, with swelling with prolonged walking or standing and some “giving way” of the right knee.  The VA exam was reported for both knees and noted no swelling, effusions, TTP or instability.  There was “mild” tenderness of the left knee with testing for meniscal injury, without supporting evidence of meniscal injury (no “clicking” or “catching” with McMurray’s maneuver).  Knee ROM was 5-110 degrees (normal 0-140).  Right knee X-rays showed DJD.

The Board first considered if both the left and right knees remained reasonably considered unfitting when de-coupled from the PEB’s combined adjudication.  Both knee conditions were listed on the permanent profile and noted by the MEB orthopedic examiner as contributing causes for referral for an MEB.  The Board concluded that there was not a preponderance of evidence in the service records that overcame the Board’s presumption that the bundled left and right knee conditions were each reasonably considered separately unfitting.  The Board noted that the coding and rating features for both knees are essentially identical and therefore considered its rating recommendation for both unfitting knee conditions at the time of separation.

The Board directed attention to its rating recommendation of the knee conditions at TDRL placement based on the above evidence.  The PEB rated the bilateral knee condition 0% coded 5003 (degenerative arthritis) and the VARD dated 5 March 2003, rated the left knee 10% and the right knee 10%, both coded 5010-5260 (limited leg flexion with traumatic arthritis).  The Board majority agreed the evidence supports a 10% rating for the knees rated as a bilateral joint condition according to 5003 rating criteria (degenerative arthritis of two major joints) without evidence of occasional incapacitating episodes to support the 20% rating.  In addition, the Board consensus was that there was insufficient evidence of limited motion to support a 10% rating for either the left knee or the right knee alone coded as 5003 or 5299-5260 (analogous to limited leg flexion) based on consideration of VASRD §4.59 (painful motion).  The Board reviewed to see if a higher rating was supported with any other applicable code but there was no evidence of instability, semilunar cartilage symptoms, or ankylosis of either knee, and there was no evidence of sufficient limited ROM of either knee for a higher rating based on ROM alone.  Thus the Board majority determined that the evidence supports a 10% rating for the bilateral knee condition at TDRL placement, whether rated together or individually.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 10%, coded 5003 for the bilateral knee condition at TDRL placement.  

At the VA C&P joints exam on 13 December 2004, approximately 12 months before TDRL removal, the CI reported some pain and swelling of the left knee with prolonged standing and walking and occasional “giving way” of the right knee, but no locking.  He reported the symptoms resolved with rest and NSAIDs and that he did not miss any work due to the knee conditions.  The exam of the bilateral knees was unchanged since the previous C&P exam noted above.  

The TDRL evaluation dated 14 June 2005 noted the knee pain was stable without any additional trauma and noted subjective left knee pain with no findings on exam.  However, the CI reported that his knee pain had worsened and was re-evaluated.  At the TDRL re-evaluation the CI reported increased knee pain (exam noted increased right knee pain but notes a history of arthroscopy which was performed on the left knee) due to worsening DJD.  The exam was reported for each knee separately, but the exams were the same.  There was TTP of the anterior and posterior joint lines.  There was no evidence of instability or meniscal injury, effusion, or pain with patellar compression. 

At the C&P joints exam on 29 March 2006, the CI reported bilateral knee pain.  He reported locking of his left knee several times per week.  The exam noted a normal gait.  Right knee ROM was normal with pain and crepitus noted and no additional loss of ROM with repetition.  There was no evidence of instability or meniscal injury of either knee.  Left knee ROM was normal with pain and crepitus noted, but there was an additional loss of 20 degrees of flexion with repetition (0-120 degrees).  Bilateral knee X-rays showed “mild” degenerative changes.

The Board directed attention to its rating recommendation of the knee conditions at TDRL removal based on the above evidence.  The PEB rated the knee conditions at 10% as a bilateral joint condition, coded 5003.  The VARD on 3 May 2005 continued the 10% rating for each knee, coded 5010-5260 as did the later VARD on 15 August 2006.  The Board agreed that the evidence at the time, with resolution of reasonable doubt in favor of the CI, supports a 10% rating for each knee, coded either as 5003 or 5299-5260 IAW §4.59, for painful, limited motion of each knee.  The Board reviewed to see if there was support for a higher rating of either knee with any applicable code, but there was no evidence in the record of instability, frequent effusions, sufficient limited ROM based on ROM criteria alone, or ankylosis of either knee to support a higher rating.  Thus, the Board determined that each knee could be rated 10% and chose to code as 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 left knee and 10% for the right condition, both coded 5003, at TDRL removal.  

Low Back Pain.  According to the STR and the MEB NARSUM examination on 18 December 2001, 5 months before separation, the CI had a history of intermittent low back pain (LBP) since 1989.  At the MEB orthopedic addendum exam on 1 November 2001, the CI reported current LBP which developed due to heavy lifting as a mechanic.  Treatment included placement on profiles, physical therapy and medication.  The exam noted a normal gait and TTP of the left sacroiliac joint.  There was full ROM of the low back without muscle spasms; lower extremity (LE) strength and reflexes were normal.  At the VA C&P joints exam on 7 August 2002, the CI reported a history of LBP due to a herniated L4-5 disc, with pain radiating to the left buttock, without bowel or bladder problems.  The exam noted no TTP of the spine.  Lumbar spine ROM was flexion to 90 degrees (normal) and extension to 10 degrees (normal 30).  Strength, sensation, and reflexes of the lower extremities were normal and straight leg raise testing was negative.  Lumbar spine X-rays showed degenerative disc disease.  

The Board directed attention to its rating recommendation of the low back condition at TDRL placement based on the above evidence.  The PEB rated the low back condition at 0%, coded 5299-5295 (lumbosacral strain).  The VA rated the back condition at 0%, coded 5293 (intervertebral disc syndrome [IDS]).  The Board agreed that the evidence at TDRL placement supports a 0% rating for the back condition according to VASRD rules for rating the spine in effect on the date of TDRL placement.  The Board judged that the limited lumbar extension alone noted at the C&P exam, but not the MEB orthopedic addendum exam, did not reach the threshold for characterizing the low back limitation of motion as even “slight” for a 10% rating coded as 5292 and there was no evidence of characteristic pain on motion or symptoms of IDS to rate 10% coded as either 5293 or 5295.  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 at TDRL placement.  

At the VA C&P spine exam on 13 December 2004, approximately 12 months before TDRL removal, the CI reported low back pain and stiffness.  The exam noted a normal gait and full ROM of the thoracolumbar (TL) spine without tenderness, guarding, or muscle spasm, or additional loss of ROM with repetition.  Lower extremity strength and reflexes were normal.  Physical therapy ROM measurements for the PEB were documented on 26 April 2005. Thoracolumbar flexion was to 60, 65, and 65 degrees and combined ROM was 194, 200, and 200 degrees, with painful motion noted.

The TDRL evaluation dated 14 June 2005, noted that the back pain was stable.  The exam noted no change from prior examinations with subjective pain without findings on exam.  At the TDRL re-evaluation on 6 July 2005, the CI reported that his back pain had worsened and he now had radiating pain in his left lower extremity (LLE) to his foot.  Lumbosacral spine magnetic resonance imaging (MRI) dated 28 May 2005, showed Grade 1 bilateral spondylolysis and spondylolithesis and herniated disc at L4-5 with impingement of the left L4 nerve root.  The exam noted a normal gait.  There was TTP of the lumbar region, without muscle spasm.  Lower extremity strength and reflexes were normal and straight leg raise (SLR) testing was negative.  The CI was able to heel and toe walk.  The CI was referred to a pain clinic for further evaluation and treatment of his back.  

A neurosurgical evaluation at a military treatment facility on 11 August 2005, noted that the CI had a long history of episodic LBP.  The CI reported LBP without numbness and tingling (N/T) or radiation to the LEs, and no bowel or bladder problems.  The exam noted no TTP of the spine, normal LE strength/sensation and symmetrical reflexes.  The neurosurgeon recommended that definitive treatment of the spondylolisthesis (segmental instability) would be surgical spine fusion at that level.  A neurosurgical clinic note on 8 November 2005, indicated the recommendations remained the same and noted that an August 2005 complete neurological exam was “…an essentially normal examination,” but that the instability could be a cause of back pain and muscle spasms.  The neurosurgeon clarified that fusion surgery was the appropriate surgical option, but that if the CI was able to function with conservative treatment that was an acceptable choice as well.  

Physical therapy ROM measurements for the PEB on the same day documented TL flexion to 54, 54, and 50 degrees, and combined a ROM of 140, 134, and 136 degrees, with motion limited by pain.

At the VA C&P spine exam on 30 March 2006, the CI reported back pain that radiated to the LLE, with occasional leg/foot weakness, but denied paresthesias (numbness/tingling) or bowel/bladder problems.  He reported pain and muscle spasm with stiffness and decreased motion with moderate back flare-ups every few weeks lasting one day.  The CI reported using a brace and a cane.  The C&P noted that the CI was scheduled for a steroid injection in April 2006.  The exam noted a normal gait and posture without abnormal spinal curvatures.  There was mild muscle spasm and guarding of the lumbar spine noted.  Thoracolumbar ROM was flexion to 70 degrees (normal 90), with a combined ROM of 220 degrees (normal 240), with painful motion.  Additional loss of ROM on repetitive use was documented with flexion to 50 degrees and a combined ROM of 170 degrees.  Lower extremity strength, sensation, and reflexes were normal and SLR was positive on the left. 

The Board directed attention to its rating recommendation of the low back condition at TDRL removal based on the above evidence.  The PEB rated the low back condition 0%, coded 5299-5237 (analogous to lumbosacral strain).  An FPEB member submitted a minority report and disagreed that the back condition was stable for permanent rating.  The VARD on 3 May 2005 increased the rating for the low back condition to 10%, coded 5010-5243 (intervertebral disc syndrome with traumatic arthritis) and the VARD on 15 August 2006 increased it to 20%, with the same coding.  The Board agreed that the evidence supports a 20% rating according to the VASRD General Rating Formula for the spine in effect on the date of separation for TL flexion “greater than 30 degrees and not greater than 60 degrees.”  The Board reviewed to see if the next higher rating of 40% was supported, but there was no evidence in record of TL flexion of “30 degrees or less.”  The Board next reviewed to see if a higher evaluation than 20% was achieved coding with 5243 (intervertebral disc syndrome) and rating based on incapacitating episodes, (defined by the VASRD as treatment and bed rest prescribed by a physician).  However, there was no documentation in record of incapacitating episodes as defined.  Thus, the Board determined that the evidence supports a 20% rating for the low back condition at TDRL exit and no higher and chose to code as 5243.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the low back condition.  

The Board also considered if there was evidence in the record to support recommending peripheral nerve impairment due to the low back condition as separately unfitting and eligible for additional disability rating.  Board precedent is that a functional impairment tied to fitness is required to support a recommendation for addition of a peripheral nerve rating at separation.  Proximate to permanent separation, the CI had reported back pain radiating to the LLE without N/T, but with weakness; LLE strength and sensation were normal throughout the record.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a and since no evidence of a motor or fixed sensory deficit associated with functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.

Headache (HA) Condition.  According to the STR and the MEB NARSUM examination on 18 December 2001, 5 months before separation, the CI had recurrent frontal headaches thought to be related to analgesic medication usage.  No current HA symptoms were reported.  At the MEB neurology addendum evaluation on 30 November 2001, the CI reported a constant daily HA for the past 9 months with lifestyle, food and environmental triggers noted and that the HAs were relieved by sleep.  The CI had not missed any work due to the HAs and a full neurological exam was normal.   The examiner indicated that the CI had chronic daily HAs, likely related to analgesia use.  The treatment plan was to stop the daily analgesic medications and start preventive HA medication.  At the VA C&P neurological on exam 25 July 2002, the CI reported 2-3 HAs per week that lasted 3-4 hours, often associated with a peculiar smell, occasional nausea, and light sensitivity.  He reported that he tried to keep going at work and treated the HAs as quickly as possible at home.  A head CT scan a couple years earlier was noted to be normal.  Neurological exam was normal and the examiner diagnosed migraine HAs.  At the VA C&P general medical exam on 5 August 2002, the CI reported he was taking a medication to prevent migraine HAs as well as a prescription for treatment of acute migraine HAs.  He reported that a recent HA (within a week) lasted for 2-3 days and that he took his medication and had to lie down in a dark room.  

The Board directed attention to its rating recommendation of HA condition at TDRL placement based on the above evidence.  The PEB rated the HA condition at 0%, coded as 8199-8100 (analogous to migraines) and the VA rated it at 0%, coded 8100.  The Board considered that VA rating guidance under diagnostic code 8100 (migraine headache) is based on the frequency of “prostrating attacks” over the “last several months.”  The VASRD does not further define prostrating attacks however commonly accepted definitions include "utter physical exhaustion or helplessness" (Webster's New World Dictionary of American English), “complete physical or mental exhaustion” or "extreme exhaustion or powerlessness" (Dorland's Illustrated Medical Dictionary) and the Board unanimously agreed to these descriptions of “prostrating” for its deliberations.  

The 8100 criteria for the highest rating of 50% requires HA frequency of “very frequent…and prolonged attacks productive of severe economic inadaptability;” a 30% rating requires “once a month over the last several months;” a 10% rating requires “prostrating attacks averaging one in 2 months;” and a 0% rating, “less frequent attacks.”  The Board agreed that the evidence at TDRL entry supports a 0% rating of the HA condition and no higher based on “less frequent attacks” than at least one prostrating attack every 2 months in the last several months.  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 HA condition at TDRL entry.  

 At A TDRL evaluation on 30 June 2003, the CI reported 3-4 HAs per month “which is his norm.” These were treated with migraine HA medication and had not increased in frequency.  The HA condition was also addressed on a TDRL evaluation addendum dated 16 October 2003.  The CI was treating the HAs with a new abortive medication and reported 3-4 HAs per week that lasted 1-3 hours.  This was noted to be a slight improvement since the last TDRL evaluation and no change to treatment was recommended.  

A VA outpatient neurology note dated 15 October 2004, documented that the CI was successfully treating migraine HAs with a preventive medication and an abortive medication that “works well to abort HA.”  The VA C&P neurological exam on 13 December 2004, noted that the CI was currently prescribed both preventive and abortive migraine HA medications.  The CI reported 2-3 HAs per month that lasted for hours.  A brain MRI, dated 18 August 2003, was normal.  The CI reported increased absenteeism from work and the exam noted that “less than half the attacks are prostrating,” but also noted there were no effects on daily activities.  At the TDRL evaluation the CI reported continued “occasional” HAs without exacerbations.

The Board directed attention to its rating recommendation of the HA condition at TDRL removal based on the above evidence.  The PEB adjudicated the HA condition as no longer unfitting.  The VARD on 3 May 2005, increased the rating of the HA condition to 30%.  The Board’s main charge is to assess the fairness of the PEB’s determination that the HA condition was no longer unfitting at the time of TDRL removal.  The Board’s threshold for countering fitness 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 Board agreed that there was not a preponderance of evidence in record to recommend the HA condition as unfitting at TDRL removal.  The VA increased the CI’s rating to 30% for “characteristic prostrating attacks occurring on an average once a month over last several months,” based on the December 2004 C&P exam.  However, the Board found there was insufficient evidence that the HAs, quantified by the VA examiner vaguely “as less than half the attacks are prostrating,” met the accepted standard of a prostrating headache as discussed above.  The CI reported increased absenteeism from work due to the HA condition at that exam, but there were no corroborating post-separation treatment notes or emergency treatment visits in record to support the severity or frequency of the HAs.  At the last TDRL evaluation to address the HA condition, the CI reported only occasional HAs with no change.  The remainder of the post-TDRL placement exams and treatment notes supported that the HAs were not prostrating and the CI remained at work during the HAs, and importantly, indicated that there had been no significant deterioration of the migraine condition since TDRL placement with his current treatment effectively managing the HAs.  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 HA condition at TDRL removal.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended, not unfitting conditions of hyperlipidemia, dry eye syndrome, bilateral mild carpal tunnel syndrome, left ulnar nerve entrapment at the elbow (cubital tunnel syndrome), controlled hypertension, chronic orchialgia (testicular pain), right elbow bursitis, chronic rhinitis, anal fistula with recurrent proctalgia (rectal pain) and cardiac palpitations were not unfitting.  The Board’s threshold for countering fitness 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 permanent profile on 10 January 2002 listed “asthma,” “degenerative arthritis, bilateral knees,” and “arthritis, right ankle.”  The commander listed the CI’s past medical history which included low back pain since 1991, ankle pain since 1996, right ankle pain and bilateral CTS profiled in 1997, left knee surgery in 1998, bilateral hand numbness in 1999, and right elbow pain in 2000.  However, the commander noted only that “due to several medical conditions,” the CI was unable to perform the full duties of his primary MOS and “at the present time, his medical status precludes him from completing the Army Physical Fitness Test.”  According to the STR and the NARSUM the CI had a history of medical treatment for multiple conditions which had not caused the CI to be referred for an MEB:

1.  Hyperlipidemia (increased cholesterol and triglycerides).  An undated MEB internal medicine addendum indicated that the CI was treated for an abnormal lipid profile since 1999 with stable blood levels on medication.  

2.  Dry eye syndrome.  The MEB optometry addendum indicated the CI was treated for dry eyes with baby shampoo washes and moisturizing eye drops. 

3. Bilateral carpal tunnel syndrome.  At the MEB orthopedic addendum exam on 1 November 2001, 7 months before separation the CI reported being diagnosed with carpal tunnel in 1999 and treated with wrist splints.  He reported current symptoms of numbness in both hands daily and use of wrist splints at night only.  The exam noted full ROM of both wrists with reproduced pain and numbness with wrist flexion and negative Tinel's signs (positive if percussion over the carpal tunnel reproduces the symptoms).  Bilateral "mild" carpal tunnel syndrome was diagnosed by EMG on 6 December 2001.

4.  Left ulnar nerve entrapment at the elbow (cubital tunnel syndrome).  Also noted on the EMG noted above.

5.  Hypertension. Controlled on appropriate medication.

6.  Chronic orchialgia (testicular pain and scarring).  Negative work-up for an underlying systemic disorder (sarcoidosis).  Notes in the STR indicated the CI had a long history of intermittent testicular pain and a scrotal ultrasound (US) performed on 8 April 1998 showed no masses, but changes likely due to scarring.  Repeat US exams in 2000 and 2001 were unchanged.  At the MEB exam, the urogenital exam was normal and a US on 19 October 2001, which noted intermittent testicular pain for more than 10 years, was again unchanged.  

7.  Right elbow bursitis (epicondylitis [tennis elbow]).  At the MEB orthopedic addendum exam the CI reported pain in the right elbow developed in 2000 while doing push-ups and he was treated with injections and oral anti-inflammatory medication.  He reported current right elbow pain aggravated by lifting.  The exam noted TTP of the right elbow and full ROM without crepitus.  

8.  Chronic rhinitis.  CI reported a runny nose since moving to the area in 1996.  Allergy testing and imaging was negative for sinus disease.

9.  Anal fistula with recurrent proctalgia (rectal pain).   An internal medicine addendum noted a history of an anal fistula repair in August 1998 with recurrent rectal pain.  A surgery follow-up visit on 14 January 1999 noted current symptoms of anal pruritis (itching), which had improved since the CI had decreased caffeine intake. A proctosigmoidoscopy exam did not show any acute pathology and continued conservative measures were recommended.  A follow-up surgery visit on 22 March 2001 indicated the CI had not been seen in over a year; the evaluation noted no acute abnormalities and no change to treatment was recommended.

10. Cardiac palpitations.  An undated MEB internal medicine addendum indicated that the CI had a history of benign heart palpitations with no pathology found on testing.  Cardiac evaluation was negative and the CI stable on medication.

None of the 10 contended, not unfitting conditions enumerated above were permanently profiled and none were implicated by the commander's statement. The Board noted that although the commander chronicled the CI's medical history and listed the bilateral CTS and right elbow pain, there was no indication that limitations due to these conditions impaired the CI's successful duty performance.  The profile did not list any limitations that could not be ascribed to the PEB rated conditions; there was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance; and, none of the 10 conditions were specified as failing retention standards.  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 any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the ankle condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication at TDRL placement and a disability rating of 10%, coded 5271 IAW VASRD §4.71a at TDRL removal.  In the matter of the asthma condition, the Board unanimously recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97 at TDRL placement and removal.  In the matter of the bilateral knee condition, the Board majority agrees that the left and right knees are separately unfitting and recommends a disability rating of 10% for both knees as a bilateral condition, coded 5003 IAW VASRD §4.71a at TDRL placement.  The Board unanimously recommends a disability rating for each knee, rated 10%, both coded 5003 IAW VASRD §4.71a at TDRL removal.  In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication at TDRL placement and a disability rating of 20%, coded 5243 IAW VASRD §4.71a at TDRL removal.  In the matter of the HA condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication at TDRL placement and removal.  
In the matter of the contended hyperlipidemia, dry eye syndrome, bilateral mild carpal tunnel syndrome, left ulnar nerve entrapment at the elbow, controlled hypertension, chronic orchialgia, right elbow bursitis, chronic rhinitis, anal fistula with recurrent proctalgia and cardiac palpitations, the Board unanimously recommends no change from the PEB determinations as not unfitting.  The Board majority recommends a combined rating of 50% at TDRL placement and unanimously recommends a combined rating of 60% at permanent separation.  There were no other conditions within the Board’s scope of review for consideration.

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Right Ankle Condition	5271	20%	10%	
Asthma Condition	6602	30%	30%	
Bilateral Knee Arthritis Condition	5003	10%	-	
Right Knee Arthritis Condition	5003	-	10%	
Left Knee Arthritis Condition	5003	-	10%	
Low Back Pain Condition	5299-5295	0%		
Low Back Pain Condition	5243		20%	
HA condition	8199-8100	0%	(not UF)	
COMBINED (w/BLF)	50%	60%	

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

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 XXXXXXXXXXXXXXXXXX, AR20160005523 (PD201400405)

1.	This memorandum amends my earlier decision dated 16 May 2015 (copy enclosed) pertaining to the individual named in the subject line above to grant the individual’s application. I approved the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to place the individual on the Temporary Disability Retired List (TDRL) at 50% rather than 30% disability rating for the period 21 May 2002 to 20 December 2005 and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 60%.

2.	The amended TDRL period should read for the period 21 May 2002 to
17 January 2006 and then following this period recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 60%.

3.	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.

4.	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:

Enclosure