RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02055
BRANCH OF SERVICE:  Army	BOARD DATE:  20150514
SEPARATION DATE:  20080117

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Infantryman) medically separated for chronic low back pain and chronic bilateral knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic bilateral patellofemoral knee pain” and “chronic low back pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded obstructive sleep apnea and anxiety disorder for PEB adjudication.  The Informal PEB adjudicated “chronic low back pain and chronic bilateral knee pain” as unfitting, rated 10% and 0%, with likely application of the Department of Defense Instruction (DoDI) 1332.39/Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  The CI elaborated no specific contention in his application.  

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. 

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:  

IPEB – Dated 20071004	VA* - (~3 Mos. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Chronic Facet Syndrome, Lumbosacral Spine (Claimed As
Chronic Low Back Pain)	5235-5237	10%	20071018	
Chronic Bilateral Knee Pain	5099-5003	0%	Patellofemoral Pain Syndrome, Right Knee (Claimed As
Bilateral Knee Pain, Chondromalacia)	5099-5014	10%	20071018	
			Patellofemoral Pain Syndrome, Left Knee (Claimed As
Bilateral Knee Pain, Chondromalacia)	5099-5014	10%	20071018	
Anxiety Disorder	Not Unfitting	Post Trauma Tic Stress Disorder And Anxiety Disorder	9411	NSC	20071009	
Other x 0 (Not In Scope)	Other x 6	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20080711 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The PEB combined the right and left knee conditions as a single unfitting condition rated as 5099-5003 (analogous to arthritis) at 0%.  The PEB relied on AR 635.40 and/or the US Army Physical Disability Agency (USAPDA) pain policy for not applying separately compensable VASRD codes.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD rating guidelines.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself.  Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.  

Chronic Low Back Pain (LBP).  The narrative summary (NARSUM) noted the CI had a history of back pain for several years without specific traumatic injury.  The back pain worsened during the CI’s first deployment and following this he was involved in a motorcycle accident 18 June 2005.  Notes in the service treatment record (STR) indicated that imaging was unremarkable except for a possible old L1 fracture noted on a CT scan of the abdomen and pelvis, but the emergency room examiner noted that the CI was not tender in that area.  The NARSUM noted that the CI returned to work a week after that accident and was subsequently deployed again.  After the CI returned from deployment in November 2006, at a Primary Care visit he reported being thrown from horse a week earlier and lumbar spine X-rays were normal.  The CI was given a 90-day profile and referred to physical therapy.  Notes in the STR indicate the CI continued with localized LBP, without radicular symptoms.  Lumbar spine X-rays and magnetic resonance imaging performed on 21 March 2007 were read as suspicious for non-displaced L3 transverse process fracture without spinal canal or neuroforaminal stenosis.  The CI was referred to Pain Management (PM) and underwent multiple spinal injections with moderate pain relief and the final PM note in record 12 September 2007 indicated the CI had radiofrequency nerve ablation of spinal nerve branches in the lumbar spine.  At the MEB examination 28 August 2007, 5 months prior to separation, the CI reported LBP with occasional radiation to the right buttock, without any lower extremity (LE) or neurological symptoms.  The MEB physical exam noted back range-of-motion (ROM) was flexion of 85 degrees (normal 90) with combined ROM of 235 degrees (normal 240).  There was painful ROM noted without muscle spasm.  There was normal gait, posture, heel and toe walk.  Strength, sensation and reflexes of the LEs were normal and straight leg testing was negative.

At the VA Compensation and Pension (C&P) examination 18 October 2007, 3 months prior to separation, the CI reported chronic LBP and that the nerve ablation therapy in September 2007 had provided significant benefit.  The CI reported that in the past 12 months, following pain management procedures there had been three periods of prescribed bed rest of 3 days duration.  The exam noted no focal tenderness, muscle spasm, or abnormal spinal contour and normal strength, sensation, and reflexes of the lower extremities.  Thoracolumbar ROM was flexion 75 degrees with combined ROM of 225 degrees, with pain at end of extension ROM and there was no additional loss of ROM with three repetitions.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain).  The VA also rated it 10%, coded 5235-5237 (lumbosacral strain with vertebral fracture).  The Board agreed that the evidence supports a 10% rating according to VASRD rules for rating the spine in effect at the time of separation.  The Board reviewed to see if a higher evaluation was achieved, but there was no evidence to support a higher rating based on ROM; muscle spasm or guarding, severe enough to result in an abnormal gait or spinal contour; or, “incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks in the past 12 months.”  There was also no evidence of a radiculopathy related to the back condition to recommend additional disability rating.  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 adjudication for the back condition.  

Chronic Bilateral Knee Pain.  The NARSUM noted that the CI gradually developed bilateral knee pain without a specific traumatic incident.  Notes in the STR indicated right knee X-rays performed on 15 October 2004 were normal and the CI was given a neoprene knee sleeve 10 January 2005.  A permanent L2 profile was given for the right knee 4 March 2005 and alternate physical fitness training was approved.  At a Primary Care visit 5 December 2006 the CI reported continued problems with right knee pain, but denied swelling or locking of the knee and was referred for orthopedic evaluation.  At the Orthopedic visit 7 December 2006 the CI reported the knee had “buckled” but denied swelling or locking, and pain was aggravated by squatting and weight bearing activities.  The exam noted a normal gait.  The patella was normal in alignment, with tenderness behind the patella, but no tenderness to palpation (TTP) of the joint line.  The examiner indicated that there was “not full range of motion of the knee,” but there was no painful motion, instability, or evidence of semilunar cartilage (meniscus) injury.  The orthopedic assessment was patellar chondromalacia and the CI was referred for physical therapy.  Bilateral knee X-rays were normal.  

At a Primary Care visit 22 February 2007 the CI reported worsening left knee pain for 2 years.  At an Orthopedic follow-up visit 7 March 2007 the CI reported bilateral anterior knee pain and the exam noted patellofemoral tenderness with full motion of both knees, without effusion or instability.  The orthopedic specialist indicated the CI was not a surgical candidate and was unfit for duty due to bilateral anterior knee pain.  The CI was given a permanent profile and a MEB was recommended.  According to the NARSUM the CI successfully completed two deployments during this period of time.  The permanent profile listed chronic bilateral patellofemoral knee pain.  The commander’s statement 29 May 2007 implicated the bilateral knees as impairing the CI’s duty performance.  At the MEB examination 5 months prior to separation, the CI reported bilateral knee pain, right greater than left without swelling or instability that was aggravated by running or prolonged walking or standing.  The MEB physical exam noted bilateral knee ROM was 0-130 degrees, without effusion, instability, or evidence of meniscal injury.  There was TTP of the patella of both knees.  

At the VA Compensation and Pension (C&P) examination 3 months before separation, the CI reported daily right knee pain and intermittent, less severe pain of the left knee.  The CI was not using knee braces, a cane, or a crutch.  The exam noted a normal gait with normal strength, sensation, and reflexes of the lower extremities.  There was no swelling or focal tenderness of the knees and ROM was 0-130 degrees bilaterally, repeated three times.  Repetitive ROM elicited pain on the right side only, with no additional loss of ROM.  There was no instability.  

The Board first reviewed the evidence to see if the right and left knees each remained reasonably justified as unfitting when separated from the PEB’s combined adjudication.  The CI was treated for both right and left knee pain.  Bilateral knee pain was permanently profiled and the commander’s statement implicated bilateral knee pain as impairing the CI’s duty performance.  Members agreed that the evidence in record readily supports that each knee was reasonably justified as unfitting at the time of separation, and each knee is therefore eligible for a disability rating.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated bilateral knee pain condition as 0%, coded 5099-5003 as noted in the analysis summary.  The VA rated the right knee and the left knee each, 10%, both coded 5099-5014 (analogous to osteomalacia), an analogous code for patellar chondromalacia.  The Board first addressed the rating of the right knee.  The Board agreed that the evidence supports the right knee met a 10% rating coded analogous to 5260 (limited leg flexion) with consideration of §4.59 (painful motion).  The Board reviewed to see if a higher evaluation was achieved with any §4.71a knee code, but there was no evidence of ankyloses, instability, frequent episodes of locking and effusion, impairment of the tibia, fibula, or femur, or flexion limited to 30 degrees or extension limited to 15 degrees.  The Board determined that the right knee met a 10% rating and no higher.  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 right knee condition.  

The Board next considered the rating of the left knee.  Members considered that the evidence at the pre-separation C&P examination noted no limitation of ROM sufficient to meet a 10% rating based on ROM alone, evidence of painful ROM, or pain with repetitive motion of the left knee, and there was also no evidence other ratable knee impairment as reviewed above in the rating discussion of the right knee.  The Board concluded that the evidence in record supports a 0% rating of the left knee and no higher.  

Contended MH Conditions.  The Board considered the appropriateness of changes (if any) in MH diagnosis, and provides a remedial recommendation if it is judged that there was any elimination or unfavorable change in MH diagnosis by the Service.  The Board assesses the fitness determination for Service MH conditions determined to be not unfitting; further considers whether the provisions of VASRD §4.129 were applicable to any unfitting MH condition (PEB adjudicated or SRP recommended), and makes rating recommendations in accordance with VASRD §4.130 (and §4.129 as appropriate).  The Board noted that the DD Form 2808, Report of Medical Examination, noted a diagnosis of PTSD and the MEB NARSUM listed a diagnosis of anxiety disorder.  The MEB forwarded anxiety disorder, meeting retention standards, and the PEB adjudicated the anxiety disorder as not unfitting.  The Board agreed that this applicant did not appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project, with possible disadvantage to the applicant.  

The Board next turned to its assessment of the fairness of the PEB’s determination that the Service diagnosed MH condition (anxiety disorder) was not unfitting.  The Board’s threshold for countering Service fitness determinations is higher than the reasonable doubt standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  MH notes in record indicated that the CI began seeing a service psychiatrist once a month in March 2007.  CI was referred to MH during the MEB process to see if there were any MH diagnoses that would cause him to fall below retention standards.  The psychiatric evaluation 26 June 2007 was noted to be a follow-up visit and the CI reported he was “about the same” and was taking medications without side effects.  The CI reviewed his deployments and reported that there was strain in his marriage due to being gone, but that if he had to stay in the military he could do so, except he was frustrated by his current situation with his unit.  The mental status examination (MSE) was normal.  The psychiatrist’s assessment was that the CI’s anxiety condition was not unfitting.  The CI was evaluated with neuropsychological (NP) screening for traumatic brain injury 16 July 2007.  The findings noted a moderate level of chronic depression, alcohol abuse, and a personality disorder.  No further NP evaluation was recommended, but continued treatment for the CI’s anxiety, depression, and monitoring of alcohol use was recommended.  The assessment was anxiety disorder not otherwise specified.

The MEB NARSUM 28 August 2007 noted a diagnosis of anxiety disorder which did not cause the CI to fall below retention standards and also noted that NP testing did not identify any cognitive disorder.  The medication list included an anti-depressant and sleep medication.  At a pre-separation VA C&P PTSD evaluation 6 October 2007, 3 months before separation, the CI reported MH treatment once a month and that the medications were helpful with irritability.  He denied any prior history of MH treatment.  He reported moderate alcohol intake and denied any concerns about his alcohol use.  The CI noted he was diagnosed with sleep apnea in July 2007 and did not feel rested after sleep; he had to force himself to get up in the morning.  He denied nightmares, startle responses, panic attacks, emotional numbness or detachment, or difficulties with physical violence.  He denied frequent problems with intrusive combat related memories.  He also denied any missed work days or any problems completing his work due to MH symptoms.. The MSE noted the CI was lethargic and sighed often, but the exam was otherwise normal.  The VA MH examiner’s opinion was that the CI had some symptoms of PTSD, but did not meet full criteria for a diagnosis at the time.  The MH examiner additionally indicated he saw no evidence of an anxiety disorder and that the CI’s reported memory issues and irritability seemed related to his sleep disorder.  The examiner did not diagnose any MH condition on Axis I and the Global Assessment of Functioning was 73 (slight, if any, impairment range).  The psychiatric profile was S1 throughout the service.  The CI’s performance evaluation (NCOER) for the period 1 April 2006 to 31 March 2007 indicated successful performance across all categories.  The commander’s statement 29 May 2007 noted the CI’s performance in the past month was excellent, including giving up free time to assist other service members, and did not note any impairment related to a MH condition.  

The Board noted that the DD Form 2808 noted a diagnosis of PTSD, but all other DES documents noted a diagnosis of anxiety disorder.  The Service psychiatrist diagnosed anxiety disorder and the pre-separation VA C&P PTSD evaluation did not provide any Axis I diagnosis, noting that the CI had mild symptoms, but did not meet diagnostic criteria for PTSD and in the VA examiner’s judgment did not met criteria for an anxiety disorder at that time either.  Thus, the Board concluded that there was no evidence to support a change in the MH diagnosis.  The MH condition was judged to meet retention standards by the Service psychiatrist, the psychiatric profile was S1 throughout the service, the commander’s statement did not implicate any MH condition, and there was no performance based evidence in the STR that any MH health condition significantly impaired duty performance.  Therefore, regardless of diagnostic considerations, the Board consensus was that there was insufficient cause to recommend any MH condition as unfitting at the time of separation.  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 MH 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.  As discussed above, PEB reliance on the USAPDA pain policy/AR 635-40 for rating the bilateral knee condition was operant in this case and the condition was adjudicated independently of that policy/ instruction by this Board.  In the matter of the bilateral knee condition the Board recommends disability rating as follows: an unfitting right knee condition, rated 10% and an unfitting left knee condition rated 0% both coded 5299-5260 IAW VASRD §4.71a.  In the matter of the contended anxiety disorder 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain Condition	5237	10%	
Chronic Right Knee Pain Condition	5299-5260	10%	
Chronic Left Knee Pain Condition	5299-5260	0%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130515, 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 XXXXXXXXXXXXXXXXXXXX, AR20150014215 (PD201402055)

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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA