RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXXXXXXXX 		CASE: PD-2014-00486
BRANCH OF SERVICE:  Army	SEPARATION DATE: 20050810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Supply Specialist) medically separated for chronic low back pain and right knee pain.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “low back pain” and “right knee degenerative joint disease” conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other condition was submitted by the MEB. The Informal PEB (IPEB) adjudicated “chronic low back pain” and “chronic right knee pain” as unfitting, rated 10% and 0%.  The CI appealed to the Formal PEB (FPEB) which affirmed the low back pain at 10% and increased the knee pain to a 10% rating.  The FPEB also adjudicated two other conditions submitted on an MEB addendum:  “bilateral hallux valgus”, determined to have existed prior to service (EPTS), and “chronic abdominal pain,” determined not unfitting and not rated.  The CI was then medically separated.  

CI CONTENTION:  The CI makes no specific contentions.  His complete submission is at Exhibit A.

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:    
FPEB – Dated 20050422	VA* - ~2 Mos. Pre-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Osteoarthritis L3-4 and L4-5 	5010-5237	10%	20050531	
Chronic Right Knee Pain	5099-5003	10%	Right Knee Osteoarthritis	5010	10%	20050531	
Chronic Abdominal Pain	Not Unfitting	Status Post Sigmoidectomy	7346-7301	30%	20050531	
Bilateral Hallux Valgus	EPTS	Bilateral Hallux Valgus	5276	0%	20050531	
Other x 0 (Not In Scope)	Other x 8	
RATING:  20%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20051004 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain. Treatment records evidence that the CI presented with acute exacerbation of chronic back pain in July 2004.  X-rays of the lumbar spine dated 19 July 2004 demonstrated mild age related lumbar degenerative changes.  The CI was treated placed on quarters, treated with pain medications, and referred for chiropractic care.  A primary care note dated 30 August 2004 noted physical findings of right paralumbar muscles spasm, forward flexion to 60 degrees, and negative radicular testing.  The examiner noted a diagnosis of acute on chronic lower back pain.  At the narrative summary (NARSUM) examination performed 10 months prior to separation the CI reported 5-6/10 back pain twice weekly; lasting 2-3 hours.  The significant physical findings were lumbar paravertebral muscles tenderness to palpation and negative radicular testing.  The examiner noted a diagnosis of “low back pain, mild to moderate, without radicular signs, with decreased range of motion, moderate, and radiographic evidence of low lumbar facet degenerative joint disease, mild.”  At the VA Compensation and Pension (C&P) exam performed 3 months prior to separation the CI reported constant aching, sharp lower back pain which increased with physical activity.  The pain was relieved with rest and medications.  He reported incapacitating episodes 3 times per year which lasted 3 days.  On physical examination there was no muscle spasm, tenderness or radicular findings.  There was pain with motion.  Magnetic resonance imaging (MRI) performed the same day of the examination demonstrated early minimal lumbar osteoarthritic changes.  At the VA C&P exam performed 11 months after separation, the CI reported chronic back pain with movement.  He denied incapacitating episodes.  He continued with pain medications.  A study performed by MRI demonstrated L5-Sl disc disease and narrowing of the thecal sac in this area.  The significant physical findings were pain limited thoracolumbar motion, an inability to perform repetitive movement of the back, negative radicular testing, and no paravertebral muscle spasm.  A diagnosis of degenerative disc and joint disease of the lumbar spine was rendered.  The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM
(Degrees)	
MEB 9 MO. Pre-Sep
(20041012) 	MEB ~9 Mo. Pre-Sep
(20041108) 	VA C&P ~3 Mo. Pre-Sep
(20050531	VA C&P ~11 Mo. Post-Sep
(20060724) 	
Flexion (90 Normal)	30	90	80	30-40	
Extension (30)	10	30	25	20	
R Lat Flexion (30)		30	25	20	
L Lat Flexion (30)		30	20	22	
R Rotation (30)		30	30	30-40	
L Rotation (30)		15	30	30-40	
Combined (240)		#		#	
Comment	Painful motion				
§4.71a Rating	40%	10%	10%	20-30%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA rated the lower back pain condition at 10%, coded 5237 (lumbosacral strain), 5010-5237 (arthritis due to trauma-lumbosacral strain).  The Board considered whether the evidence supported a higher than 10% rating.  The Board noted that the CI had chronic lower back pain with mildly pain limited thoracolumbar ROM and acute exacerbation 1-3 times per year lasting approximately 3 days (3-9 days per year).  Board members agreed that the ROM measurements most proximate to separation did not meet criteria for a higher rating.  The Board also considered rating under the intervertebral disc syndrome rating formula, but determined that  the acute exacerbations in evidence did not met the criteria of incapacitating episodes having a total duration of at least 2 weeks, but less than 4 weeks during the past 12 months for a higher than 10% rating.  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 of the chronic lower back pain condition.  

Chronic Right Knee Pain.  Treatment records evidence that the CI had a history of right knee pain not responding to conservative therapy.  Between April 2001 and February 2004 he underwent four surgeries without pain resolution.  At the orthopedic NARSUM examination, the CI reported 7/10 constant, sharp, constant, anterior, right knee pain.  The pain was worse with standing greater than 5 minutes, squatting, walking greater than 5 minutes, and stairs.  The pain decreased with the use of pain medication and rest.  The right knee examination demonstrated mild swelling, global tenderness to palpation, mild calf and thigh muscular atrophy, and no evidence of instability.  The examiner opined that the CI had moderate to severe pain, moderate effusion, and mild strength and ROM deficits.  A diagnosis of right knee tri-compartmental degenerative joint disease, status post multiple surgeries was rendered.  At the VA C&P examination, the CI reported pain in the right knee at rest and with walking. He reported frequent use of a cane and brace. The right knee examination demonstrated an abnormal gait, peripatellar effusion, definite pain with movement, and no evidence of instability.  A diagnosis of degenerative joint disease was rendered.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Knee ROM
(Degrees)	MEB ~9 Mo. Pre-Sep
(20041108) 	VA C&P ~11 Mo. Post-Sep
(20060724) 	
Flexion (140 Normal)	85	84	
Extension (0 Normal)	0	0	
Comment	AO	AO	
§4.71a Rating	#%	#%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB and VA rated the right knee condition at 10%, coded 5099-5003 (analogous to degenerative arthritis) and 5010 (arthritis due trauma), respectively.  The Board considered whether the evidence supported a higher than 10% rating.  There was no evidence of compensable knee limitation of flexion or extension for a higher rating.  There was no evidence of an unfitting scar or instability for addition ratings.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed Board consensus was that a disability rating of 10% for the right knee condition was appropriately recommended in this case.

Bilateral Hallux Valgus Deformities.  There was no service treatment records related to the bilateral bunion condition.  The NARSUM physical exam performed 12 October 2004 noted a childhood history of bunion-type deformities that were asymptomatic until 2 years prior.  The physical examination demonstrated severe bilateral hallux valgus deformities with swelling and tenderness to palpations.  The NARSUM addendum dated 17 April 2005 noted mild to moderate pain symptoms with radiographic findings confirming the presence of bilateral bunions.  The PEB adjudicated the condition as existing prior to service and therefore, not subject to service disability ratings.  VA rated the condition at 0%, coded 5276 (pes planus).  The Board considered whether the evidence supported a service disability rating.  The Board noted that the CI was asymptomatic prior to service, and that the condition was identified by the MEB as service-aggravated.  Board members agreed that the condition was service-aggravated and subject to a service disability rating.  There was no evidence of severe symptoms or resection of the metatarsal head for a 10% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% for the bilateral hallux valgus condition.  
Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that chronic abdominal pain 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 CI had a history of recurrent diverticulitis (inflammation of the diverticula, small pouches in the wall of the colon) and on 20 June 2003 underwent a left colectomy.  Postoperatively the CI continued to report chronic left lower abdominal pain.  In November 2003, the CI was evaluated for persistent epigastric pain with belching.  An ultrasound evaluation demonstrated gall bladder disease.  In December 2003 the CI underwent a cholecystectomy (gall bladder removal) which also demonstrated extensive abdominal adhesions (fibrous scar tissue).  Postoperatively the CI developed abdominal distention and shortness of breath.  He was diagnosed with a bile leak and treated with extraction of the abdominal fluid.  At the MEB gastroenterology evaluation dated 17 June 2004 the CI reported severe, sharp, left lower abdominal pain for approximately 15 minutes after eating which was relieved by a bowel movement or passage of gas. Diagnoses of chronic recurrent abdominal pain due to abdominal adhesions and mild erosive gastropathy were rendered.  The examiner opined that the condition met retention standards with duty limitations.  At MEB gastroenterology evaluation performed a month prior to separation the CI reported chronic right upper abdominal wound pain (abdominal adhesions) that was worse with activity unresponsive to multiple pain medications.  The examiner noted that the CI used Lidoderm patches for chronic wound pain.  The CI also reported abdominal bloating and substernal burning pain which decreased with gastroesophageal reflux (GERD) medication (Prevacid).  At the VA C&P examination approximately a year after separation, the CI reported daily intermittent abdominal pain status post his abdominal surgeries, difficulty swallowing solid food (dysphagia), fatigue, and weakness. He reported constipation which was relieved with the use of fiber.  The physical examination demonstrated an 8-1/2 inch surgical scar and tenderness on deep palpation.  Diagnoses of postoperative adhesion with chronic abdominal pain, status post sigmoid resection for diverticulitis, GERD, hiatal hernia, and status post cholecystectomy were rendered.  

The Board directed its attention to its fitness and rating recommendations based on the above evidence.  The PEB adjudicated the “moderate” chronic abdominal pain as not unfitting.  VA rated the abdominal conditions at 30% for status post sigmoidectomy, cholecystectomy with peritoneal adhesions and hiatal hernia with GERD; 10% for colectomy scar; and 10% for cholecystectomy scar; coded 7346-7301 (hiatal hernia-peritoneal adhesions) and 7804 painful scar).  The Board considered that there was performance based evidence from the record that the chronic abdominal pain secondary to peritoneal adhesions significantly interfered with satisfactory duty performance.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of chronic abdominal pain secondary to peritoneal adhesions favors its recommendation as an additionally unfitting condition for disability rating.  The Board considered ratings under VASRD codes 7301 (peritoneal adhesions), 7318 (gallbladder removal of), 7327 (diverticulitis), 7329 (intestine, large resection of moderate symptoms), and 7346 (hiatal hernia).  Board members agreed that VASRD code 7329 most closely approximated the CI functional impairments.  Board members determined that the CI daily abdominal pain and intermittent constipation rose to the level of moderate symptoms for a 20% rating under VASRD 7329. 

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 bilateral hallux valgus condition, the Board unanimously recommends a disability rating of 0%, coded 5280 IAW VASRD §4.71a.  In the matter of the right knee and chronic lower back pain conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended chronic abdominal pain condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 20%, coded 7329 IAW VASRD §4.114.  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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Lower Back Pain 	5237	10%	
Chronic Right Knee Pain	5099-5003	10%	
Chronic Abdominal Pain	7329	20%	
Right Hallux Valgus	5280	0%	
Left Hallux Valgus 	5280	0%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140121, 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 XXXXXXXXXXXXXXXXXXXXXXX, AR20160000223 (PD201400486)

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 severance pay.  

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 severance pay.

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

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

	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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA