RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00453
BRANCH OF SERVICE:  Army	BOARD DATE:  20150224
Separation Date:  20040327

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard 0-5 (Logistics) medically separated for lumbar spine and 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 lumbar spine and knee conditions, characterized as “chronic lower back pain (LBP) and radiculopathy to the right leg” and “chronic left knee pain status-post meniscal repair,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic LBP” and “chronic pain left knee” as unfitting, rated 10% and 10%, with of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I had an additional knee surgery after initial VA claim decision was made, attachment item 1.  11 Apr 2012 Surgery “Right Knee arthroscopy with debridement of medial meniscus, chondroplasty, lateral femoral condyle and patella.  This additional (Right Knee) disability further degrades this members quality of life.”

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 20060420	VA - (9 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5242	10%	Degenerative Joint Disease (DJD), Lumbar Spine	5242	40%	20051107	
			Radiculopathy, Right Lower Extremity Associated…Lumbar Spine	8520-5252	10%	20051107	
			Radiculopathy, Left Lower Extremity Associated… Lumbar Spine	8520	10%	20051107	
Chronic Pain Left Knee	5003	10%	Status Post (s/p) Left Knee Injury…	5261	10%	20051107	
Other x 0 (Not in Scope)	Other x 5 	
Combined Rating: 20%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20051202 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  

Chronic LBP Condition.  On 3 October 2003, the CI injured his lower back when he lifted a heavy object while in Iraq.  He felt immediate pain in his lower back and numbness and tingling in his left leg.  The CI was able to finish his tour of duty; however, he had persistent pain in his lower back and left leg.  A lumbar spine X-ray showed anterior disc bulging and degenerative changes at T12, L1, and L2 along with narrowing of neural foramina on the right side between L2-3 secondary degenerative disc changes.  The primary care provider documented increased LBP with radiculopathy that caused difficulty sleeping.  There were exam findings of tenderness to palpation over the midline in the L4-5 region and paraspinal muscle spasms.  The examiner diagnosed acute LBP with radiculopathy and prescribed a muscle relaxant, non-steroidal anti-inflammatory drug, narcotic medications, no lifting and no PT for 14 days.  The civilian Orthopedist documented a 2-month history of left LBP, burning and numbness from the left hip down the left leg into the distal ankle which followed an L5-S1 dermatome distribution.  There were physical exam findings of loss of range-of-motion (ROM) with aggravation of pain, stiffness and spasm; positive left straight leg raising (SLR) and an antalgic gait.  The examiner referenced a lumbar spine magnetic resonance imaging which demonstrated a left-sided herniated disc L5-S1.  The CI underwent a lumbar decompression discectomy on 17 October 2004.  The primary care provider noted that the CI had continued pain despite his recent procedure, and he required narcotic medication and a sleep medication.  There were physical exam findings of thoracic and lumbar spine paraspinal muscle spasm, and lumbosacral spine pain with motion.  

The VA Compensation and Pension (C&P) exam approximately 9 months prior to separation documented that the CI lost about a day or two per week for back pain, numbness in his toes, and at times needed to lie down until his back pain resolved.  The examiner estimated an 80% functional loss with daily pain.  The CI’s right leg pain was rated at 8/10 with daily sharp pain and numbness that radiated down to the foot with an 80%-100% loss of function.  He also reported some stiffness and some weakness in both legs.  His walking was limited to 2 blocks or 10 minutes and the CI would occasionally fall.  The VA C&P physical exam findings are summarized in the chart below.  The MEB narrative summary (NARSUM) exam approximately 6 months prior to separation documented that the CI had persistent numbness and tingling in the right leg; and constant LBP with a constant intensity of 2-4/10 with occasional pain up to 8-10/10.  He occasionally had LBP so bad that he had to go to bed for 1 or 2 days.  He failed physical therapy and required one to two pain medication tablets daily.  The MEB NARSUM physical exam findings are summarized in the chart below.  The electromyelogram performed 5 months prior to separation demonstrated (old) axonal loss in the right leg and a normal study in the left leg.

There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM (Degrees)	VA C&P 9.5 Mos. Pre-Sep	NARSUM 6 Mos. Pre-Sep	
Flexion (90 Normal)	30	45	
Combined (240)	160	125	
Comment	Pos. painful motion; Decreased sensation & strength; Pos. SLR bilaterally	Pos. tenderness to palpation & spasm; Pos. painful motion; Decreased sensation in feet; No weakness or atrophy	
§4.71a Rating	40%	20%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic LBP condition as 5242 (Degenerative arthritis of the spine) and rated the condition at 10%.  The VA coded the DJD, lumbar spine condition as 5242 and rated at 40%.  The General Rating Formula for Diseases and Injuries of the Spine considers the CI’s pain symptoms “with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease.”  The CI met the 20% rating criteria for “Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  The improved ROM after the C&P exam was most likely due to continued improvement from rehabilitation after his surgical procedure.  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.  The pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a.  The sensory component in this case has no functional implications.  The motor impairment was relatively minor and cannot be linked to significant physical impairment.  Since no evidence of functional impairment exists in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  The Board also considered coding under 5243 (Intervertebral disc syndrome) and rating using incapacitating episodes.  However, the evidence did not support the 40% threshold of “With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.”  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 chronic LBP condition.

Chronic Pain Left Knee Condition:  The CI injured his left knee when he lifted a heavy object while in Iraq on 3 October 2003.  The PCC noted left knee pain from twisting his left knee on October.  There were physical exam findings of effusion, tenderness with varus stress and patellar grind.  A left knee X-ray performed for pain and an effusion showed degenerative periarticular spurs on the patella without a joint effusion seen.  On 4 May 2004, the CI underwent an arthroscopic partial medial and lateral menisectomy and plica resection.  A bilateral knee X-ray showed mild arthritic changes with minimal narrowing of the medial knee joint space.  The C&P exam approximately 9 months prior to separation documented that the CI has stiffness in his left knee aggravated by weather changes.  He was unable to stand, run stoop, and carry his weapon or march. The VA C&P physical exam findings are summarized in the chart below.  The MEB NARSUM exam approximately 6 months prior to separation documented that the CI had knee pain 25-50% of the time.  The civilian Orthopedist noted that the CI reported left knee pain, swelling and stiffness.  The physical exam findings were joint effusion, tenderness along the medial joint line and positive patellar grind test with ROM of 135 degrees of flexion.  The examiner diagnosed chondromalacia patella based on an X-ray, which showed moderate narrowing of the patellofemoral joint.  The CI underwent a series of five left knee injections of synovial fluid supplementation to reduce pain.

There were three goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.
Left Knee ROM (Degrees)	VA C&P ~9.5 Mos. Pre-Sep	NARSUM ~6 Mos. Pre-Sep	
Flexion (140 Normal)	110	130	
Extension (0 Normal)	0	0	
Comment	Pos. painful motion; No effusion or instability; No Deluca criteria; 4/5 strength	Antalgic gait (due to back pain); No painful motion; No instability	
§4.71a Rating	10%*	0% (PEB 10%)	
*IAW VASRD §4.59, Painful motion

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic pain left knee condition as 5003 (degenerative arthritis) and rated at 10% with application of the USAPDA pain policy.  The VA coded the s/p left knee injury condition as 5261 (limitation of leg extension) and rated at 10% based on painful motion.  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 justification for a 10% rating.  The left knee condition could not be reasonably rated higher than 10% using any exam proximate to separation or any 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 chronic pain left 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the chronic pain left knee condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the chronic pain left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5242	20%	
Chronic Pain Left Knee	5261	10%	
COMBINED	30%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140112, 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 XXXXXXXXXXXXXXX, AR20150011009 (PD201400453)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with Reserve retirement.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with Reserve retirement.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with Reserve retirement.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for payment of permanent retired pay at 30% effective the date of the original medical separation for disability with Reserve retirement.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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		    
						
CF: 
(  ) DoD PDBR
(  ) DVA