RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01014
BRANCH OF SERVICE:  Army	BOARD DATE:  20150326
SEPARATION DATE:  20090220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Paralegal NCO) medically separated for chronic low back pain (LBP).  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty but she was authorized to perform an alternate physical fitness test (per PROFILE).  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The chronic back pain, characterized as “degenerative disc disease of the lumbosacral spine” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (bilateral patellofemoral syndrome) for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain” as unfitting, rated 10% citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have received this rating based on information in my medical records.  I have still had problems with this issues [sic] for my separation.  My condition has gotten worst [sic].  I have to receive shots and additional medication.  My rating was also not based on both knees and my back issues.  I just received no rating for my knees just my back.  I have to go to physical therapy still for my condition.”

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:

Service IPEB – Dated 20081020	VA* - (~2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Lumbar Spine Degenerative Disc Disease L5- S1	5243	0%	20081229	
Bilateral Patellofemoral Syndrome	Not Unfitting	Chondromalacia; Left Knee	5014	0%	20081229	
		Chondromalacia, Right Knee	5014	0%	20081229	
Other x 0 (Not in Scope)	Other x 6 	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20090313 (most proximate to date of separation [DOS]).  VARD dated 20100719 increases the lumbar spine to 20%, right knee to 10% and left knee to 10% for a combined rating of 40%.

ANALYSIS SUMMARY:

Chronic Low Back Pain:  The narrative summary (NARSUM) and treatment record noted onset of LBP in 2006 with heavy lifting and rucking.  Imaging documented lumbar spine disk degeneration and L5-S1 disk protrusion.  Physical therapy (PT), chiropractic treatment, back rehabilitation and oral medications did not resolve the back pain condition and the CI was not a surgical candidate.

At the MEB exam, the CI reported continued episodes of significant low back pain.  The record did not document any history of physician prescribed bed rest or complaints of radicular symptoms.  The NARSUM physical exam documented lumbar area tenderness and decreased flexion and extension of the lumbar spine secondary to pain.  Physical therapy goniometric range-of-motion (ROM) testing showed forward flexion to 90 degrees (normal) and combined ROM of 230 degrees (normal 240).  Gait and lower extremity motor, sensory and reflex exams were normal.

At the VA Compensation and Pension exam performed 2 months prior to separation, the CI reported a similar history and intermittent stiffness and pain up to 8/10.  There had been no incapacitating episodes and the CI did not relate any functional impairment to the back condition.  Exam documented normal ROM with flexion of 90 degrees and combined ROM of 240 degrees without painful motion or decrease on repetitive testing.  There was a normal gait with no evidence of radiation, muscle spasm or tenderness.  Testing of strength, reflexes and sensation of the lower extremities was normal.  The VA rated this exam at 0%.

A second VA exam performed 7 months after separation documented tenderness with pain limited ROM to 40 degrees flexion and 160 degrees combined and in conjunction with other treatment records rated the CI at 20% for the spine condition.

The Board directed attention to its rating recommendation based on the above evidence.  The service exam supported a 10% rating for tenderness and pain limited motion.  There were no periods of incapacitation, and no exams proximate to separation documenting guarding or spasm sufficient to cause an abnormal gait or contour, or ROM limited to forward flexion of 60 degrees/combined 120 degrees (or less) to support any higher rating.  The second VA exam, 7 months after separation, was adjudged post-separation worsening and not indicative of the CI’s disability picture proximate to separation.

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.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral patellofemoral syndrome condition or either knee separately was not unfitting.  The Board’s threshold for countering fitness determinations is preponderance of the evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The NARSUM and treatment record noted onset of chronic bilateral knee pain in 1997 with episodic temporary profiles and a diagnosis of chondromalacia patellae and retropatellar syndrome bilateral knees.  X-rays of the knees were normal and the passed the alternate physical fitness test.  She continued to have intermittent knee pain and her final L3 profile listed bilateral patellofemoral syndrome and her back condition.  The profile restrictions did not delineate which restrictions were attributed to which medical condition.  The service and prior to separation VA examinations documented full active ROM of each knee without painful motion or evidence of instability.  The VA exam documented crepitus of each knee which was not noted in other exams.  X-rays 6 months prior to separation documented normal knees and there was no magnetic resonance imaging in evidence.  Seven months after separation, a second VA exam documented painful motion of each knee.

The Board directed attention to its rating recommendation based on the above evidence.  The bilateral patellofemoral syndrome was profiled and judged to fail retention standards by the NARSUM and MEB.  The commander’s statement was not specific to diagnosis, but only noted the profile restrictions.  The NARSUM examiner functional status statement aligned with the profile restrictions and did not specify which condition (back or knees) was limiting.  The PEB statement and the record indicated adequate performance following the onset of the knee pain conditions at least until after the back pain condition occurred.  There was little evidence of worsening of the knee conditions following onset of the back condition.  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 bilateral 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.  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 contended bilateral patellofemoral syndrome condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140225, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB									

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20150013325 (PD201401014)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl		
						         
CF: 
(  ) DoD PDBR
(  ) DVA