RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00968
BRANCH OF SERVICE:  Army	Separation Date:  20091110

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Petroleum Supply Specialist) medically separated for back and right knee pain.  These conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “lumbago” and “chronic right knee pain status post right ACL repair and right medial meniscal repair” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (migraine headaches).  The Informal PEB adjudicated her back and right knee as unfitting, rated 10% and 10% respectively, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  

CI CONTENTION:  The applicant contends that her rating was unfair.  Her 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 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:  
IPEB - Dated 20090830	VA* - (13 Days Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Lower Back Pain (LBP) …	5299-5237	10%	Intervertebral Disc Syndrome (IVDS)	5243	10%	20091029	
			Right Side Femoral Nerve Neuritis Associated with IVDS	8626	10%		
Degenerative Arthritis of the Right Knee…	5003	10%	Status Post(S/P) Right Knee Surgery with Scars, Osteopenia and Instability	5257	20%		
Other MEB/PEB Conditions x 1 (Not In Scope)	Other x 4 	
RATING:  20%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20100311 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Chronic Lower Back Pain.  The CI developed gradual onset of LBP in October 2007.  She was referred for Chiropractic care in 2009 for reports of left-sided LBP and left upper to mid back soreness and stiffness.  She also reported that the LBP was intermittent and worsened with standing and walking.  The MEB Narrative Summary (NARSUM) exam approximately 3 months prior to separation documented that the CI’s LBP increased to 6/10 with activities such as bending, doing sit-ups, lifting more than 15 pounds or squatting.  The MEB NARSUM physical exam findings are summarized in the chart below.  

The VA Compensation and Pension (C&P) exam 13 days prior to separation documented that the CI reported stiffness, weakness, fatigue, spasms and paresthesia (abnormal sensations) and limitations with walking due to the LBP.  She also reported that the LBP occurred 4 times per week, lasted for 2 hours and radiated down her left leg and mid back.  During flares, the CI was functionally impaired in that she could not walk for long periods.  The examiner documented that the CI denied decreased motion or numbness.  The lumbar spine X-ray showed joint narrowing and mild disc narrowing.  The VA C&P physical exam findings are summarized in the chart below.  

There were range-of-motion (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)	MEB ~3 Mo. Pre-Sep	VA C&P 13days Pre-Sep	
Flexion (90 Normal)	90	90	
Combined (240)	240	240	
Comment	Right antalgic gait; tenderness to palpation (TTP)	Painful motion; muscle spasm & guarding “which do not produce an abnormal gait”; spinal contour preserved; tenderness; motor nml; decreed sensation to touch on right thigh; right LE reflexes +1, Left LE +2; no motor weakness	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition at 10% and coded as analogous to 5237 (lumbosacral strain).  The VA rated the back at 10% and coded the condition as 5243 (intervertebral disc syndrome-IVDS) and also rated a right side femoral nerve neuritis associated with IVDS condition at 10%, coded 8626 (neuritis).  

All exams in evidence met the 10% rating criteria for either tenderness; painful motion; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait; the VA examiner specified that spasm and guarding did not produce an abnormal gait (the abnormal gait noted within the VA exam was specifically attributed to right knee instability - see knee condition below).  There were no more limited ROMs or periods of incapacitation for higher rating under either spine formula.  The general rating formula for the spine includes all thoracolumbar spine pathology and includes symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the affected spine.  Although the CI reported LBP with radiation down her left leg, there was no objective evidence of fixed motor weakness attributable to IVDS.  The slight sensory deficit and asymmetric reflexes noted at the VA exam did not rise to the level of interfering with duty performance.  Since no evidence of significant functional impairment from any radiculopathy existed in this case, the Board cannot support a recommendation for additional rating based on peripheral nerve impairment.  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 back condition.  
Degenerative Arthritis of the Right Knee:  The CI sustained a right knee injury in July 2007.  A right knee MRI in August 2007 showed a radial tear through the medial meniscus; inferior tear within the posterior horn of the medial meniscus; a complete tear of the anterior cruciate ligament (ACL) and a bone contusion in the posterior and lateral femoral condyle.  The CI underwent 3 right knee surgeries including ACL reconstruction (bone-tendon-bone) and medial meniscus repair; joint fluid aspiration with lysis of adhesions due to limited flexion; and the third surgery performed approximately 9 months prior to separation, was for lysis of extensive adhesions (flexion contracture) with hardware removal and the surgery documented tricompartmental chondromalacia.  

The MEB NARSUM exam approximately 3 months prior to separation documented that the CI reported chronic sharp stabbing pain into the right knee medial joint line associated with intermittent locking and buckling on a daily basis usually at full right knee extension and intermittent swelling with increased activity.  The CI required a non-steroidal anti-inflammatory drug (NSAID) and a strong narcotic medication which provided only fair pain relief.  The MEB NARSUM physical exam findings included tenderness to palpation at the media joint line and right antalgic gait.  “Negative anterior and posterior drawer” was noted with pain-limited flexion to 100 degrees (normal 140) and extension was to 5 degrees (normal 0).  Physical therapy clinical note 3 weeks following the NARSUM indicated continuing complaints of locking, giving out, and weakness.  There was right thigh (quadriceps) atrophy with weakness (3+/5) and weakened hip abduction.  A right knee X-ray done in September 2009 showed surgical changes, tricompartmental degenerative changes and “findings concerning for intra-articular body.”  

The VA C&P exam 13 days prior to separation documented that the CI reported right knee stiffness, weakness, lack of endurance, swelling, heat, giving way, locking, tenderness, effusion and pain.  She reported flare-ups as often as 4 times per day and each time lasted 4 hours which were precipitated by physical activity and prolonged sitting.  During flares, the CI was functionally limited with an inability to stand or walk for a prolonged period of time or climb up and down stairs.  Additionally, she reported that the knee locked at full extension.  She required a knee brace and a cane for ambulation.  The physical exam findings indicated an abnormal gait “described as unable to do tandem gait because of instability of the right knee.”  The right knee had “instability, weakness, tenderness and guarding of movement … locking pain and crepitus.”  The anterior and posterior cruciate ligaments stability test was “abnormal with moderate instability” and medial and lateral collateral ligaments stability test was “abnormal with moderate instability.”  Meniscus testing was normal.  The ROM exam documented painful motion with flexion limited to 90 degrees (normal 140) and extension to 0 degrees (normal).  X-ray documented surgical changes with a screw present and periarticular osteopenia (low bone density around the joint surfaces).  VA records indicated the CI underwent right knee surgery to include loose body removal and meniscal shaving approximately 2 years after separation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the “degenerative arthritis of the right knee confirmed by imaging” condition at 10% and coded as 5003 (arthritis, degenerative [hypertrophic or osteoarthritis]).  The VA rated the “S/P Right Knee Surgery with Scars, Osteopenia, and Instability” condition at 20% (moderate) and coded as 5257 (knee, other impairment of [recurrent subluxation or lateral instability]).  The Board adjudged that the pre-separation VA exam had the highest probative value for rating at separation as it was closest to separation, most comprehensive, and aligned with the bulk of the treatment record entries which documented knee laxity, pain-limited motion and signs of weakness and instability.  However, the Board also considered the disparity with the MEB exam when considering the final rating for the knee.  

The Board considered potential dual rating of the knee under code 5257 for instability plus under either 5003 for pain-limited or painful motion (IAW VASRD §4.59), or under meniscal coding (5259 or 5258) which includes painful motion.  The knee scars was not significantly painful and were adjudges as not separately unfitting.  The Board considered the instability rating criteria of slight (10%), moderate (20%), and severe (30%) as well as the disability contribution from pain-limited motion.  The Board agreed that the CI’s right knee pain, weakness, locking, and inability to tandem gait walk due to knee instability, was best rated as a combined 5003-5257 moderate disability level at 20%.  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 right knee condition coded 5003-5257.  

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the “Chronic LBP…” condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the Right Knee condition, the Board unanimously recommends a disability rating of 20%, coded 5003-5257 IAW VASRD §4.71a.  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 her prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Lower Back Pain	5299-5237	10%	
Degenerative Arthritis of the Right Knee 	5003-5257	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140218, 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, AR20160002558 (PD201400968)

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