RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02057
BRANCH OF SERVICE:  Marine Corps 	SEPARATION DATE:  20080531

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Supply Administration and Operations Specialist, medically separated for “left knee pain” and “low back pain” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  The CI contends he received a higher rating from the VA based upon the back condition being rated 20% and the right knee (shin) being rated 10%.  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 – 20080325	VARD – 20081107	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Pain …	5299-5003	10%	Degenerative Arthritis of the Left Knee …	5261-5010	10%	20080708	
Low Back Pain …	5237	10%	DDD, Thoracolumbar Spine	5237	20%		
Right Shin Pain …	Category III	Patellofemoral Syndrome, Right Knee (Claimed as Right Shin)	5237-5024	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Left Knee Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), there were knee complaints dating to 1999, and the CI underwent surgery in May 2005 to repair a ruptured left quadriceps tendon sustained in a fall.  Surgical intervention again ensued in February 2006 (2+ years pre-separation, last surgery) to repair cartilage, trim scar tissue, and remove the lining membrane in the joint (arthroscopic debridement, chondroplasty, meniscectomy and synovectomy).  Despite treatment, the condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for MEB.  The MEB forwarded “osteoarthrosis…lower leg” and “chronic pain due to trauma” to the Physical Evaluation Board (PEB) for adjudication.

The range of motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below. 
Left Knee ROM
(Degrees)	PT ~6 Mos.
Pre-Sep	NARSUM ~4 Mos. 
Pre-Sep	MEB ~4 Mos.
 Pre-Sep	VA C&P ~1 Mo. 
Post-Sep	
Flexion (140 Normal)	“WFL” (Full)	135	“Full”	120	
Extension (0 Normal)		0		0	

At the time of the physical therapy appointment on 30 November 2007 (6 months prior to separation), the CI reported left knee pain rated 7-8/10, particularly when running, negotiating stairs, or prolonged sitting (> 1 hour).  On examination, the knee cap did not move in the normal track during flexion and extension (increased inferior, superior, and lateral patellar glide).  Various entries in the outpatient STR documented stability to stress testing in all planes and the absence of positive signs of meniscal impingement (no objective locking).  There was no STR evidence (after post-operative rehabilitation) for more significant ROM limitation, gait disturbance, persistent effusions or other ratable criteria.  

At the MEB NARSUM examination dated 31 January 2008 (4 months prior to separation), the examiner noted persistent pain with temporary relief from steroid injections, but “significant discomfort” with general soldiering activities.  The physical examination recorded “mild” quadriceps atrophy, crepitus with “minimal” tenderness, stability to stress testing (no comment effusion or impingement), and the ROM measurements charted above (no comment regarding painful motion).  The MEB examination (DD Forms 2807 and 2808) 5 days later (5 February 2008) recorded the absence of effusion or instability. 

At the VA Compensation and Pension (C&P) examination on 8 July 2008 (1 month after separation) the CI reported constant pain rated 6/10, exacerbated by walking “more than a block” and negotiating stairs.  The physical examination recorded a normal gait, the absence of effusion, stability to stress testing in all planes, negative signs of meniscal impingement, and the ROM measurements charted above (specifying painful motion). 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was consistent with VASRD §4.71a criteria for the ROM evidence (conceding painful motion) and other ratable findings.  The VA’s 10% rating under 5261-5010 (limitation of leg extension – traumatic arthritis) cited painful motion.  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) to support a rating under the respective codes. The 5259 code (cartilage, semilunar, removal of, symptomatic) was applicable in this case but the maximum 10% rating under that code provided no benefit to the CI.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There is therefore no VASRD §4.71a route to a rating higher than 10% under any applicable code, and no grounds for additional rating based on the presence of instability.  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 of the left knee condition.  

Low Back Pain.  The CI’s low back pain began as early as April 2005 with no specific trauma, and was exacerbated in May that same year by a fall.  Imaging (MRI) in September 2007 showed multilevel degenerative disc disease (mild protrusions L2–L5 without significant neural encroachment); but, multiple neurological examinations were normal and surgery was not recommended.  Despite conservative treatment, the condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for MEB.  The MEB forwarded “degeneration of intervertebral disc, site unspecified” for PEB adjudication.

The ROM examinations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  
Thoracolumbar ROM
(Degrees)	PT ~9 Mos.
Pre-Sep	PT ~6 Mos. 
Pre-Sep	NARSUM ~4 Mos. Pre-Sep	VA ~1 Mo. 
Post-Sep	
Flexion (90 Normal)	Grossly full with painful motion.	“25% loss” of ROM; abnormal contour.	40	45	
Combined (240)			Incomplete	155	
§4.71a Rating	10%	20%	20%	20%	

At the time of a physical therapy (PT) appointment on 30 August 2007 (9 months prior to separation) the CI reported low back pain rated 7/10.  On examination, the CI was able to execute ROM within functional limits, but experienced pain on extension.  At the time of a PT appointment on 30 November 2007, 6 months prior to separation, the examiner recorded complaints of pain rated 7-8/10 increased by heavy lifting, forward flexion, or sitting.  On examination, flexion was deferred with reductions in other planes (as charted above) and decreased lordosis (loss of the normal curvature of the spine).  There was no STR evidence for more significant ROM limitation, neurologic deficits, or ratable incapacitating episodes. 
 
The MEB NARSUM examination on 31 January 2008 (4 months prior to separation) noted complaints of low back pain brought on by sitting or driving for more than 30 minutes.  The pain radiated into the buttocks but not into the legs.  The physical examination recorded a normal gait, spinal tenderness, normal neurological findings (5/5 strength in all groups), and the ROM measurements charted above, with documentation of a 50% reduction of extension and modest reductions of bilateral flexion.   

At the VA Compensation and Pension (C&P) examination on 8 July 2008 (1 month after separation) the CI reported constant back pain rated 8/10 in severity, exacerbated by sitting, which he indicated would “often cripple” him.  The CI reported a total of four days of bed rest prescribed by physicians in the previous 12 months, with 2 days corroborated by STR.  The physical examination recorded a normal gait, the absence of radiating pain or spasm, normal neurological findings (motor, reflexes, sensory) and the ROM measurements charted above.  The examiner specifically opined, “There are no signs of intervertebral disc syndrome with chronic and permanent nerve root involvement.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated 10% coded 5237 (lumbosacral strain).  The VA’s 20% rating under the same code based on flexion.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as evidenced by the NARSUM and VA examinations.  These were the only goniometric measurements in evidence and the VA ROM evaluation was fully compliant with VASRD §4.46 (accurate measurement).  There was insufficient evidence for incapacitating episodes to achieve a rating higher than 20% under that formula (even if a diagnosis of intervertebral disc syndrome was conceded); and, there was no evidence of an associated unfitting radiculopathy for consideration of a separate peripheral nerve rating.  After due deliberation, considering all of the evidence and conceding reasonable doubt, the Board recommends a 20% rating for the lumbar spine condition; proposing code 5242 (degenerative arthritis of the spine) for its clinical compatibility.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right shin pain was not unfitting.  The right shin pain was listed as one of three conditions on the Abbreviated MEB Report that placed the CI on the first period of 6 months limited duty on 21 November 2005.  This condition was not implicated in the commander’s statement and was not judged to fail retention standards.   The condition was reviewed and considered by the Board.  There was no performance-based evidence from the record that right shin pain significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 contended right shin pain, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the contended right shin 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.  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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Knee Pain (Surgical Residuals)	5299-5003	10%	
Degenerative Disc Disease, Lumbar Spine	5242	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140511, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR COMMANDER, NAVY PERSONNEL COMMAND
	         DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXXXX 
	(c) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 27 May 16 ICO XXXXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (e) are approved.

2.  The official records of the following individuals are to be corrected to reflect the stated disposition:
     
     a. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge. 

     b. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 40 percent disability rating (increased from 20 percent) effective date of discharge.

     c. XXXXXXXXXXXXXXXXXXXX, former USMC: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 20 percent) effective date of discharge.  

     d. XXXXXXXXXXXXXXXXXXXX, former USN: Retroactive placement on the Permanent Disability Retired List with a 30 percent disability rating (increased from 10 percent) effective date of discharge.      

3.  Please ensure all necessary actions are taken to implement these decisions, including the recoupment of disability severance pay, if warranted, and notification to the subject members once those actions are complete.

						XXXXXXXXXXXXXXXXXXXX
						Assistant General Counsel
						(Manpower & Reserve Affairs)