RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	      CASE:  PD-2014-00705
BRANCH OF SERVICE:  ArmY                                                                  SEPARATION DATE:  20070102

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a traditional drilling National Guard, E5, Light Wheel Vehicle Mechanic, medically separated for “chronic neck pain…,” chronic low back pain…,” and bilateral knee pain…” rated at 0%, 0% and 0% respectively, with a combined disability rating of 0%.  

CI CONTENTION:  “Not sure if one was ever given”.  The CI’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 Physical Evaluation Board (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 –20061025	VARD - 20061205	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Neck Pain…	5299-5237	0%	Degenerative Disc Disease T11-T12 with Transitional Lumbar…	5243	10%	20061115	
Chronic Low Back Pain…	5299-5237	0%	Degenerative Disc Disease, Cervical Spine	5243	10%	20061115	
Bilateral Knee Pain…	5099-5003 	0%	Patellar Chondrosis, Left Knee	5099-5003	10%	20061115	
			Patellar Chondrosis, Right Knee	5099-5003	10%	20061115	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Cervical Spine Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic neck pain condition began in 1995 and was later exacerbated while deployed in 2003.  There was no history of specific injury or trauma.  Radiographic studies in 2003 showed cervical spine degenerative changes and a bulging disc at the C3 interspace.  Electro-diagnostic studies were performed in 2004 to evaluate hand pain and numbness, and suggested mild bilateral C6-C7 radiculopathy, but there was no surgical indication.  Despite treatment, the neck condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for an MEB.  The MEB forwarded “chronic back pain, cervical…secondary to DJD [degenerative joint disease] & DDD [degenerative disk disease]” for PEB adjudication.  At the NARSUM evaluation on 24 April 2006 (8 months prior to separation) the CI continued to report chronic neck pain that varied between 0/10 and 10/10 in severity, and was exacerbated by increased activity.  Physical examination showed cervical flexion of 30 degrees (normal 45 degrees) and combined range of motion (ROM) of 215 degrees (normal 340 degrees).  Painful motion was present. A test for nerve root irritation was negative.  The examination was silent regarding gait, spinal contour, tenderness or muscle spasm.  

At the VA Compensation and Pension (C&P) examination on 15 November 2006 (2 months before separation), the CI reported non-radiating pain located in the midline of the neck.  Examination showed flexion of 45 degrees and combined ROM of 340 degrees.  Painful motion was present in all planes.  There was no loss of motion after repetitive motion.  There was no muscle spasm or guarding, but cervical tenderness was present.  Gait and spinal contour were normal.  Upper extremity sensation and muscle strength were normal. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 5237 code (cervical strain).  The VA assigned a 10% rating using the 5243 code (intervertebral disc syndrome) based on the VA C&P examination 2 months before separation, citing limitation of motion.  The VA C&P examination was more proximate to the date of separation and provided more details than the NARSUM exam; and it was therefore assigned preponderant probative value in the Board’s deliberations.  Although the ROM recorded by the C&P examiner did not support a rating higher than 0%, the Board agreed that a 10% rating was justified by the presence of tenderness and (IAW §4.59) painful motion.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  

The Board finally considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  Although the CI experienced numbness and tingling of the hands, and a remote electro-diagnostic study showed evidence suggestive of mild C6-C7 radiculopathy, there was no objective evidence of a radiculopathy-related functional impairment with a direct impact on fitness.  Physical examination showed normal neurologic findings, including muscle strength.  The Board therefore concludes that additional disability rating was not justified on this basis.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 10% for the neck pain condition, coded 5299-5237.  

Low Back Pain.  According to the STR and the NARSUM, the CI’s low back condition began in 1991, and like the neck, was exacerbated during deployment in 2003.  There was no history of specific injury or trauma.  Radiographic studies showed degenerative disc disease from L4-S1 and a mild broad based L5-S1 disc protrusion that narrowed the right neural foramen.  Electro-diagnostic studies were performed in 2005 to evaluate complaints of radiating pain to the right lower extremity, and numbness in toes of the right foot.  The studies were negative for radiculopathy.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “chronic back pain…lumbar, secondary to DJD & DDD” for PEB adjudication.

At the NARSUM evaluation 8 months prior to separation the CI reported pain that was worse with activity and did not radiate. Pain severity varied between 0/10 and 10/10.  Physical examination showed thoracolumbar flexion of 40 degrees (normal 90 degrees) and combined of 125 degrees (normal 240 degrees).  Painful motion was present, but the examination was silent regarding gait, spinal contour, tenderness or muscle spasm.

At the VA C&P examination 2 months before separation, the CI complained of constant daily pain that limited his walking to more than one-quarter mile but less than a mile.  He denied radiation of pain.  Physical examination showed thoracolumbar flexion of 90 degrees and combined ROM of 240 degrees.  Painful motion was present in all planes only at the extremes of motion.  There was no loss of motion after repetitive motion.  There was no muscle spasm or guarding, but thoracic tenderness was present.  There was no abnormal gait or spinal contour due to muscle spasm or guarding.  Lower extremity sensation and muscle strength were normal, and a test for possible nerve root irritation was negative.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 5237 code (lumbosacral strain).  The VA assigned a 10% rating using the 5243 code (intervertebral disc syndrome) citing limitation of motion.  As previously elaborated, the Board relied more heavily on the C&P examination in its deliberation.  Although the ROM recorded by the C&P examiner did not support a rating higher than 0%, the Board agreed that a 10% rating was justified by the presence of tenderness and (IAW §4.59) painful motion.  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  There was no evidence of IVDS which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula (for IVDS).  There was likewise no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the low back pain condition, coded 5299-5237.  

Bilateral Knee Pain.  The PEB combined the left and right knee conditions under a single disability rating, coded analogously to 5003 (arthritis, degenerative) and rated 0%.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  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 disability evaluation system 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.

According to the STR and the NARSUM, the CI’s bilateral knee condition began in November 2003 while deployed, but was not a consequence of trauma or injury.  Radiographic studies showed normal findings.  There was no surgical indication.  Despite treatment, the bilateral knee condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for an MEB.  The MEB forwarded “bilateral patellofemoral dysfunction” for PEB adjudication. 

At the NARSUM examination (8 months prior to separation), the CI reported constant pain behind the kneecaps.  Pain severity ranged from 0/10 to 7/10 (on the right) and 4/10 (on the left), and was aggravated by prolonged sitting, squatting and climbing stairs.  Examination showed bilateral knee pain with squatting and a positive bilateral patellar grind test (pain during resisted motion of the kneecap).  There was no evidence of meniscal damage and ligament testing was normal.  Right knee flexion was 132 degrees (normal 140 degrees) and left knee flexion was 138 degrees.  Extension of each knee was 0 degrees (normal 0 degrees).  The reason for limitation was stated to be “pain.”  There was no change in ROM during repetitive motion.  The examiner’s diagnosis was bilateral patellofemoral dysfunction.

The permanent physical profile listed chronic patellofemoral dysfunction and allowed running, walking, biking, swimming and lower body weight training “at own pace and distance.”  During an MEB addendum on 5 May 2006 (8 months prior to separation), the CI reported that he enjoyed fishing and hunting.  The commander’s statement on 13 October 2006 (3 months prior to separation) reported that the CI last performed military duty in September 2004, and only specified the spine condition as an impediment to performance of duties.

At the VA C&P examination 2 months before separation, the CI reported pain in both knees with flare-ups weekly that lasted for hours.  However, he was not using any form of treatment, including pain medication or assistive devices.  He also reported instability and giving way of both knees.  He was able to walk more than 1/4 mile but less than a mile.  Physical examination showed an antalgic gait (a gait adopted in order to avoid pain), although the cause was not elaborated.  Flexion of each knee was 140 degrees (normal 140 degrees) with pain occurring at 140 degrees.  Extension of each knee was 0 degrees (normal 0 degrees) with painful motion reported at 0 degrees.  Tenderness of each knee was present, but there was no crepitus, evidence of meniscal damage or ligament abnormality.

At a C&P evaluation on 20 June 2007 (6 months after separation) the CI reported that he mowed the grass.  Examination showed a normal gait.  During a 30 November 2007 C&P examination (11 months after separation) the CI reported that both knees were equally bothersome.  Recreational activities, travel and performance of chores were unaffected by the knee condition, while participation in sports and exercise were mildly impaired.  Physical examination showed flexion of each knee of 140 degrees and extension of 0 degrees.  There was no painful motion but bilateral tenderness and crepitus were present.

The Board directed attention to its rating recommendation based on the above evidence.  As previously elaborated, the Board must first consider whether each knee remains separately unfitting, having been de-coupled from a combined PEB adjudication.  The VA rated each knee 10%, coded analogously to 5003, and cited painful motion as the rationale.  The available STR was largely silent regarding any knee issues.  However, the bilateral condition was determined to fail retention standards and was permanently profiled, although not specified in the commander’s statement.  It is speculative to conclude that the disability confined to a single knee would not have rendered the CI incapable of performing his specialty.  There was no indication from the record that one knee was significantly less severe than the other, and clinical examination findings were similar.  Board members noted that there was no limitation of motion to justify a compensable rating under the 5260 (limitation of flexion) or 5261 (limitation of extension) codes; and no evidence of instability to warrant a minimum rating under the 5257 code.  It was also debated if evidence of functional loss (§4.40) or painful motion (§4.59) was sufficient to justify a 10% rating for each knee.  The Board noted that pain was reported at the extremes of normal motion on the examination most proximal to separation (C&P), and that there was a reported tolerance to activities such as hunting and fishing without the need for use of medication or assistive devices.  The Board also carefully considered the option of rating both knees together at 10%, an approach supported under VASRD §4.71a.  Ultimately, the Board concluded that the evidence did not provide sufficient grounds for recommending separate right and left knee disability ratings in this case, and that a rating of 10% coded analogously to 5024 (tenosynovitis) most accurately depicted both the pathology and disability in this case.  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 bilateral knee condition, coded 5099-5024.  
BOARD FINDINGS:  In the matter of the neck pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the low back pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5237 IAW VASRD §4.71a.  In the matter of the bilateral knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5024 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

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	PERMANENT RATING	
Chronic Neck Pain	5299-5237	10%	
Chronic Low Back Pain	5299-5237	10%	
Bilateral Knee Pain	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140206, 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 XXXXXXXXXXXXXXXXXX, AR20160007456 (PD201400705)

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 re-characterize 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