RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01929
BRANCH OF SERVICE:  Army	BOARD DATE:  20141113
SEPARATION DATE:  20040707

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve SPC/E-4 (56M10/Senior Chaplain Assistant) medically separated for lumbar and bilateral knee conditions, which could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back and knee conditions, characterized as “chronic low back pain (LBP)” and “chronic bilateral knee pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified “irritable bowel syndrome” (IBS) as medically acceptable; and, although it was not specifically adjudicated per the PEB’s DA Form 199, the Board judged that this was likely an erroneous omission and should be assumed to constitute a de facto PEB determination that the condition was not unfitting.  The Informal PEB adjudicated “chronic low back pain insidious onset” as unfitting, rated at 0%, citing criteria of Army Regulation (AR) 635-40; and, “bilateral knee pain after a fall” as unfitting, rated at 0%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Because I was discharge for issues with my knees and back however I had problems with Major Depressive Disorder Mood disorder and sleep impairment -RA- PLEASE CONSIDER ALL CONDTIONS.” The CI attached a one page statement to her application which was reviewed by the Board and considered in its recommendations.

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The ratings for the unfitting lumbar and bilateral knee conditions are addressed below.  The IBS, identified as not unfitting by the PEB, was requested for review; thus is within the defined scope, and will also be addressed.  The requested depressive disorder and other conditions were not identified by the PEB, and thus are not within the DoDI 6040.44 defined purview of the Board. Those, and any conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20040504	VA - (3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain ...	5237	0%	Myofascial Pain, Lumbar Spine	5237	10%	20041008	
Bilateral Knee Pain ...	5299-5003	0%	Degenerative Disease , Bilateral Knees	5010	10%	20041008	
Irritable Bowel Syndrome 	Not Unfitting	Irritable Bowel Syndrome	7319	NSC	20041008	
Other x 0  (Not in Scope)	Other x 12 (Not in Scope)	
Combined:  0%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20050411 (most proximate to date of separation)

ANALYSIS SUMMARY:

Lumbar Spine Condition.  The earliest reference to lumbar issues in the available service treatment record (STR) is a 1990 entry noting a history of back pain dating to a fall in basic training.  There are multiple treatment notes related to the complaint over the ensuing 2 years, and an emergency room (ER) entry from November 1991 documenting a complaint of back pain from a vehicular accident.  Approaching the MEB period, commencing in September 2003 (10 months prior to separation), there are frequent STR entries for complaints of LBP associated with other joint pains.  One clinical note documented that the CI was still engaged in weightlifting and running at that time.  An entry of January 2004 (6 months prior to separation) records lumbar range-of-motion (ROM) as “60%” for flexion, extension and rotation; although, an ER provider 2 weeks later recorded “full active ROM [FAROM]” of the lumbar spine.  Formal ROM measurements for the MEB were provide by physical therapy (PT) in March 2004 (4 months prior to separation) and, recorded average flexion of 40 degrees (normal 90 degrees) and combined ROM of 125 degrees (normal 240 degrees).  Various STR entries confirm the absence of any radicular symptoms and normal neurologic findings.  There was no surgery and no epidural injections and lumbar X-ray images were normal.  There was documentation of normal gait in several entries and, there were no entries which documented ROM limitation (except as noted above) or guarding, abnormal contour, neurological abnormalities, incapacitating episodes, or other ratable findings.

The narrative summary (NARSUM) records a 6-month history of back pain with no known precipitant, and treatment with an anti-inflammatory.  It documents the absence of radicular symptoms and characterizes the pain as “intermittent, it waxes and wanes depending on daily activity,” noting exacerbation with exercising and load bearing.  The physical examination did not document the presence or absence of ratable findings, and quoted the ROM measurements from PT.  

The VA Compensation and Pension (C&P) evaluation (4 months after separation) noted that the CI “is currently working in food service” and that the lumbar condition “does not impose any significant restrictions on the quality of life.”  The pain was rated 2/10 with exacerbations to 5/10 by “repetitive bending, crouching, or squatting.”  The VA physical examination noted a normal gait and spinal contour, tenderness without notation of spasm, flexion to 85 degrees and combined ROM of 230 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 0% rating analogous to 5003 (degenerative arthritis) cited the absence of mechanical limitation of ROM as specified in AR 635-40 (B-29).  The VA’s 10% rating under 5237 (lumbar strain) was consistent with the VASRD §4.71a spine formula for ROM evidence from the VA C&P.  The §4.71a compliant rating for the MEB PT ROM evidence is 20%.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes in this case which would provide for additional or higher rating.  With the disparate evidence and rating implications from the two available ROM evaluations, the Board must make a probative value judgment as to which evidence is most probative.  The STR observation of “60%” flexion, if assumed to represent 60% of normal, would roughly equate to 55 degrees, still within the §4.71a 20% range; but, clearly subject to speculation.  This corroboratory evidence must also be tempered with the contradictory evidence of a normal ROM observation documented shortly afterwards.  With regards to the ROM evidence, therefore, members are faced with competing ratable examinations which are temporally equal from separation; and, equally conflicting corroboratory evidence.  The conflicting ROM evidence, however, must be weighed in context of the total evidence.  The record portrays a chronic (dating to basic training) history of back pain without significant functional import; no evidence that there were significant aggravating factors unique to the MEB period; no STR evidence of consistent ROM limitation commensurate with the MEB PT measurements; no evidence for spasm or guarding as objective corollaries of the PT ROM limitations and, a post-separation occupational history not consistent with persistent ROM impairment to the severity reflected by the PT measurements.  These factors suggest that the MEB PT, not VA C&P, ROM evidence was the outlier.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a rating of 10% for the lumbar spine condition; proposing code 5237 for its clinical compatibility.

Bilateral Knee Condition.  The CI had a history of a left knee injury in high school (with arthroscopic surgery) and an STR entry from 1989 notes a left knee injury; but, there is no STR evidence of any subsequent knee issues until the MEB period.  The earliest entry from that period is a PT note from September 2003 (10 months prior to separation), recording “chronic bilateral knee pain ... [and] ... swelling ...  [after] ... running, biking, and walking.”  The CI’s exercise routine at this time (cited above) included squat lifting.  The first L3 profile for the chronic bilateral knee condition was issued that same month.  There are multiple STR entries over the ensuing 6 months documenting normal gait, normal bilateral knee ROM, normal stress testing (no laxity or instability of either knee), no effusions and no signs of cartilage impingement.  There are no entries with evidence to the contrary.  The only X-ray finding was mild degenerative changes of the left patella, and no specific orthopedic diagnosis is found in the STR.

The NARSUM dates the onset of knee pain to a fall in July 2003, although no source documentation of same is found in the STR.  The knee pain was characterized as “constant,” rated 7/10, and treated with Ibuprofen. No aggravating factors or limitations specific to the knees were elaborated.  The physical examination noted bilateral tenderness as the only positive finding; with normal ROM, no instability, no impingement and no effusion.  Neither the NARSUM nor any exam in the STR specified painful motion of either knee.  The NARSUM diagnosis was recorded as “chronic bilateral knee pain.”  The commander’s statement noted the knee condition, but did not provide any evidence probative to specific limitations.  The L3 profile likewise did not document physical restrictions specific to the knees.

The VA C&P examination (performed after separation), the examiner provided separate histories and exams for each knee; same as referenced for the lumbar spine.  Baseline pain was rated 2/10 - 3/10, flaring to 7/10 for the left knee; and, 1/10 - 2/10, flaring to 4/10, for the right.  Aggravating factors for both were recorded as “prolonged standing, walking, and especially repetitive crouching, squatting, or kneeling;” but, the VA examiner specifically stated, “There are no adverse effects on her job as far as the knees [recall employment in food service] and she has lost no time over the past year - no periods of incapacitation.”  The latter period encompassed 8 months of active duty.  The VA physical exam noted “the left knee is more tender than the right’;” but, there was no effusion, instability, or impingement of either knee.  The VA ROM measurements were normal, bilateral flexion 140 degrees and extension 0 degrees and, painful motion was specifically annotated for the left knee only.  The VA examiner’s diagnosis was retropatellar pain syndrome (RPPS).

The Board directed attention to its recommendations based on the above evidence.  Both the PEB and the VA rated both knees together, analogously to 5003 for degenerative arthritis (VA 5010 [traumatic arthritis] defaults to 5003).  Although, the PEB’s 0% rating does not comport with the VASRD §4.71a provision under 5003 for a 10% rating for two or more major joints independently of ROM limitation or other factors.  Although 5003 permits combined ratings as above, it allows separate ratings for separately compensable joints.  The Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” joint can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable joints are justified by performance based fitness criteria and supported by §4.71a rating criteria, separate ratings are recommended.

Members first agreed in this case that, even if each knee was conceded as separately unfitting and subject to Service rating, only the left knee met §4.71a criteria for a minimum 10% rating (via §4.59 [painful motion] from the VA exam).  The ROM was normal; and, there was no instability or other ratable findings for dual rating of either knee or a compensable rating otherwise.  This notwithstanding, members also agreed that there was not reasonable justification for concluding that either knee was separately unfitting.  There was no performance based evidence, documented physical limitations, MOS-specific requirement, or civilian occupational impairment that can be reasonably invoked to support such a conclusion.  Members agreed that a combined rating under 5003 was therefore appropriate, which meets the ‘two or more major joints’ criterion for a 10% rating under that code.  After due deliberation, considering all of the evidence and incorporating reasonable doubt, the Board recommends a rating of 10% for the bilateral knee condition.  The Action Officer concurs with VA examiner’s diagnosis (RPPS), and recommends code 5024 (tenosynovitis) for its clinical compatibility.

Contended Irritable Bowel Syndrome.  The CI was evaluated by the MEB for chronic gastrointestinal complaints (dating to 2000 per STR and VA C&P), undergoing gastroenterology consultation and numerous diagnostic studies arriving at a diagnosis of IBS.  The NARSUM documented treatment with medications (Zelnorm and Prilosec) and forwarded the condition as meeting retention standards.  The commander’s statement made no reference to any gastrointestinal condition, symptoms, or limitations; and, the condition was never profiled.  The VA examiner noted “intermittent cramping and constipation, but no diarrhea,” and opined that the condition “has no adverse impact on her job currently.”  The Board’s main charge with respect to the IBS condition is an assessment of the fairness of the PEB’s determinations that it was not unfitting.  The Board’s threshold for countering Service fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  There is no performance based evidence that IBS significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, members agreed that there was insufficient cause to recommend a change in the PEB fitness determination for IBS; thus no additional disability rating can be recommended.

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 AR 635-40 for rating the lumbar spine condition was operant in this case and it was adjudicated independently of that regulation by the Board.  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the bilateral knee condition, the Board unanimously recommends a disability rating of 10%, coded 5024 IAW VASRD §4.71a.  In the matter of the contended irritable bowel syndrome, 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Myofascial Strain, Lumbar Spine	5237	10%	
Tenosynovitis and Arthritis with Chronic Pain, Bilateral Knees	5024	10%	
Irritable Bowel Syndrome	Not Unfitting	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 2014-01929, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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, AR20150008207 (PD201401929)

1.  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 to modify the individual’s disability rating to 20% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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			     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA