RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-02333
BRANCH OF SERVICE:  Army		Date of separation: 20061208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E-4, Food Services Specialist medically separated for “chondromalacia of both knees” and “chronic low back pain”, rated 10% and 0%, respectfully, with a combined disability rating of 10%.

CI CONTENTION: “Please consider all conditions.”

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 - Dated 20061107	VARD – 20070511	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chondromalacia of Both Knees	5099-5003	10%	Chondromalacia, Right Knee	5010-5260	10%	20070511	
			Chondromalacia, Left Knee	5010-5260	10%	20070511	
Chronic Low Back Pain	5299-5237	0%	Lumbar Degenerative Discs	5010-5242	10%	20070612	
			Lumbar Radiculopathy, Right 	8521	10%	20070612	
			Lumbar Radiculopathy, Left 	8521	10%	20070612	
Migraines	Not Unfitting	Migraines 	8100	30%	20070511	
Obesity	Not Ratable	Weight Gain	7999-7903	NSC	20070511	
HTN	Not Unfitting	Hypertension	7101	10%	20070511	
Hypercholesterolemia	Not Unfitting	High Triglyceride	7099-7005	NSC	20070511	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:

Bilateral Knee.  The service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) documented an atraumatic onset of bilateral knee pain (left more than right) in August 2005.  Magnetic resonance imaging (MRI) confirmed a diagnosis of bilateral chondromalacia patella (damage to the cartilage under the knee cap), and there was no abnormality of the menisci and ligaments.  Surgery for the left knee was discussed, but deferred, and the CI was unable to meet the physical demands of his Military Occupational Specialty (MOS) and general soldiering after a trial of conservative treatment.  There is little outpatient evidence probative to fitness and rating in the available STR; but, there was no indication of significant range of motion (ROM) limitation, gait disturbance, use of assistive devices, recurrent effusions, joint instability, or mechanical impingement.

The knee and back conditions were covered by an orthopedic addendum to the NARSUM, which was conducted 19 July 2006 (5 months pre-separation).  It documented persistent bilateral knee pain (severity not elaborated) interfering with “MOS specific tasks” (functional details not provided).  The NARSUM physical examination recorded a normal gait (no braces or assistive devices noted), bilateral joint tenderness without effusion, stability to stress testing in all planes, and no signs of meniscal impingement.  Bilateral flexion to 115 degrees (normal 140, 45 for minimum 10%) was documented, without comment regarding extension.  Formal ROM measurements for the MEB had been conducted by physical therapy (PT) eight days earlier.  The PT examiner documented aggravation by squatting, negotiating stairs, running, and prolonged walking or standing.  Right and left flexion was 105 degrees; and, extension (specifying limitation by pain) was recorded as 10 degrees (normal 0, minus 10 degrees for minimum 10%) for the right and 5 degrees for the left, without clarifying whether these were minus degrees or if it indicated hyperextension.  The L3 profile listed “cartilage wear bilateral knees,” and the commander’s performance statement was not probative to the specific fitness implications of either knee.

A VA Compensation and Pension (C&P) examination was conducted 11 May 2007 (5 months post-separation) and documented bilateral knee pain with flares rated 6-7/10 by “standing from seated position, extended sitting and standing, walking distances [50 yard tolerance].”  The VA physical examination noted an antalgic gait (contribution from out-of-scope ankle condition) with the use of hand crutches and bilateral knee braces.  Bilateral joint examinations recorded tenderness and patellofemoral crepitus, the absence of effusion, stability to stress testing in all planes, and negative impingement.  The VA measured ROM was flexion to 95 degrees right and 100 degrees left, with bilateral extension of 0 degrees and annotation of painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s bilateral 10% rating analogous to 5003 (degenerative arthritis) was compliant with VASRD §4.71a criteria under 5003 for two or more major joints.  Each of the VA’s separate 10% ratings under code 5010-5260 (traumatic arthritis rated for limitation of flexion) cited painful motion in support of the minimum compensable rating.  There was no compensable ROM impairment (members agreed that the MEB PT evidence for right knee extension was insufficiently probative), instability (knee braces at C&P examination not logically required for mechanical joint laxity), locking, or frequent effusions which would achieve separate ratings higher than 10%.  The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each service disability rating.  In this case, although the clinical acuity of the left knee appeared to be greater than the right, there were no significant unilateral distinctions with regards to physical findings and no functional evidence implicating one joint more than the other.  Member consensus was that it was overly speculative to conclude that the disability confined to either knee alone (especially the right) would have rendered the CI incapable of continuing military service; and, that it was reasonable to surmise that it was the combined effect of the bilateral condition which rendered him unfit.  Thus member consensus was that a §4.71a compliant bilateral 10% rating under 5003 was appropriate.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board consensus was that there was insufficient cause to recommend a change in the PEB adjudication of the bilateral knee condition.

Lumbar Spine.  There was an atraumatic onset of mid-to-lower back pain at the same time the bilateral knee complaints surfaced.  An MRI demonstrated degenerative disc disease (L3/4 and L4/5 with possible neural encroachment at both levels).  The NARSUM indicated that there was bilateral lower extremity radiation, without note of sensory symptoms or motor weakness.  There was no outpatient STR evidence implicating radicular symptoms or findings and there were none indicating objective neurological deficits.  Electrodiagnostic (EMG) testing was normal, and surgery was not recommended.  The pain persisted despite conservative treatment and resulted in MEB referral.  There were no STR entries indicating significant ROM limitation, gait or spinal contour abnormality, or periods of incapacitation.

The orthopedic addendum to the NARSUM documented back and bilateral leg pain “worsening over time” without further elaboration, and noted that the CI “cannot run, ruck, or road march.”  The NARSUM physical examination recorded a normal gait, spinal tenderness, and normal neurological findings (5/5 strength, sensation intact to light touch).  ROM measurements for the MEB by PT were dated 9 May 2006 (7 months pre-separation) and documented flexion to 90 degrees, extension 30 degrees, and bilateral rotation of 30 degrees (all normal).  Measurements of lateral flexion were not provided, thus combined ROM was not ascertainable, and the presence or absence of painful motion was not specified.

The above general post-separation VA C&P examination was supplemented by a spine C&P examination a month later (12 June 2007, 6 months post-separation).  Both examiners documented similar pain severity (6/10) and functional limitations (prolonged sitting or standing [1 hour tolerance]).  The general examiner specifically documented the absence of radiating pain or “evidence of lumbosacral radiculopathy,” but did not provide spine or neurological examinations.  The spine examiner documented that “the pain occasionally radiates to his knee caps” without mention of sensory symptoms or motor weakness.  The physical examination noted an “antalgic and slow” gait, although it was impossible to attribute this to the spine in light of the knee (and ankle) evidence from above.  The physical examination recorded spinal tenderness without spasm; and, neurological findings were normal reflexes, decreased sensation “over all dermatomes” of the left leg, and 4/5 bilateral strength of proximal flexors and extensors.  The spine examiner diagnosed bilateral lower extremity radiculopathies, which was the basis of the VA ratings.  The ROM measurements (only complete set in evidence for this case) were flexion to 70 degrees and combined 130 degrees (normal 240), recording painful motion at specific thresholds and specifying that ROM was unchanged with repetition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s DA Form 199 rationale for a 0% rating under code 5299-5237 (analogous to lumbar strain) specified motion “limited by pain,” thus it is likely that Army Regulation 635-40 was applied.  The DA Form 199 narrative also recognized the normal EMG’s, implying a PEB opinion that there were no service-ratable radiculopathies.  The VA’s 10% rating under 5010-5242 (degenerative arthritis of the spine) was consistent with VASRD §4.71a criteria for the C&P ROM evidence and findings.  Members agreed that there was sufficient evidence of painful motion to support a minimum compensable rating of 10%.  There was no ROM evidence supporting a rating higher than 10%, insufficient evidence for abnormal gait or contour to support a 20% rating, and no documentation of incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all evidence and with deference to reasonable doubt, the Board recommends a 10% rating for the lumbar spine condition, proposing code 5242 for its clinical compatibility.

The Board then considered whether additional rating could be recommended for the radiculopathies in evidence. The pain component is subsumed under the §4.71a spine rating.  The only objective evidence for any sensory or motor impairment is that related above from the VA spine C&P examiner.  The unilateral sensory deficit involving dermatomes unaffected by the disc pathology as demonstrated by MRI suffers in probative value, and would be of dubious functional significance if conceded.  The modest bilateral proximal motor weakness identified by the VA examiner was contradicted by the service orthopedic addendum and was not corroborated by EMG.  Those findings were therefore more logically attributed to voluntary guarding due to pain without a clear link to functional impairment not already subsumed in the spine rating.  Members thus agreed that there was insufficient evidence for significant functional impairment from the radiculopathies, and the Board cannot support a recommendation for additional rating on this basis.

Contended PEB Conditions (Obesity, Hypercholesterolemia, Hypertension, Migraines).  Obesity is not subject to service rating in accordance with DoDI 1332.38 (E5.1.3.10).  Hypercholesterolemia was an asymptomatic laboratory finding (treated with lipid lowering agent) without fitness implications or grounding for VASRD rating.  The CI was diagnosed with hypertension in 2005 and started on medication which was still being adjusted at the time of the NARSUM.  The condition was asymptomatic without any systemic complications.  It thus had no fitness implications.

The CI was diagnosed with migraine headaches by a neurologist in November 2005, which was a component of an overall symptom complex with dizziness (possible syncope), vertigo, chest pain and various other symptoms.  This was exhaustively evaluated by cardiology and neurology (stress test, catheterization, MRI, electroencephalography, angiography) with all normal findings.  The headaches improved with medication, rebounded, and were improving again with medication adjustment at the time of the NARSUM (29 March 2005, 8 months pre-separation).  There were STR entries for emergency visits for the overall symptom complex, but none directed at treatment of headaches.  The NARSUM documented “occasional exacerbation of these symptoms approximately every 14 days,” and the condition was forwarded as medically unacceptable.  The commander’s performance statement indicated that the CI was working in an administrative capacity and referenced “fainting/black-out episodes” without mentioning headaches.  No work loss was documented.  There was a P3 profile for “lightheadedness/syncope” without notation of headache.  The post-separation VA C&P examiner documented headaches “once a week lasting approximately 3-4 hours” without further elaboration, and it is unclear how the VA rater ascertained that these were prostrating in support of the 30% rating.

The Board’s main charge is to assess the fairness of the PEB’s determination that the migraine condition was not unfitting.  The Board’s threshold for countering 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.  Although it was clear that the condition was not totally controlled at the time of separation, the relatively low acuity described in the NARSUM and the commander’s statement did not support a conclusion that the headaches were significantly impeding performance.  The basis for the determination that the migraine condition failed retention standards was subject to question (and not the sole determinant of fitness), and the profile did not implicate it.  Members thus agreed that there was no performance based evidence in support of a conclusion that the condition appreciably interfered with MOS duties and would have precluded continued military service.  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 migraine headaches (or any of the contended conditions), and no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the Board by a majority vote recommends no change in the PEB adjudication.  The dissenting voter submitted the appended minority opinion.  In the matter of the lumbar spine condition, the Board unanimously recommends a disability rating of 10%, coded 5247, IAW VASRD §4.71a.  In the matter of the contended migraine headache, obesity, hypertension and hypercholesterolemia conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting and/or not ratable.  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, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chondromalacia Patella, Bilateral Knees	5099-5003	10%	
Degenerative Disc Disease, Lumbar Spine	5242	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140521, 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 XXXXXXXXXX, AR20160007493 (PD201402333)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA

MINORITY OPINION:  The minority member disagrees with the majority conclusion that the bilateral knee condition did not merit separate right and left service ratings (as per the VA’s treatment).  All members agreed that it was not possible to discriminate the performance limitations attributable to either knee over the other, given the outpatient STR and MEB/PEB documentation which addressed limitations only as a bilateral condition.  The commander’s performance statement implicated “bilateral knee cartilage wear” as rendering the CI incapable of performing his MOS; and, the permanent L3 profile was for “bilateral cartilage wear” which prohibited both primary and alternate physical fitness tests.

The Board majority judged it overly speculative to conclude that the disability confined to either knee alone would have left the CI incapable of continuing military service, and thus concluded that combined effect was required to render him unfit.  Conversely the minority member asserts that undue speculation is necessary to conclude that either knee in itself would not have rendered the CI unfit.  Both positions therefore are hostage to speculation, and the VASRD §4.3 imperative of reasonable doubt (the language of which describes just this situation) should prevail in resolving the conflict in favor of the CI.  The Board minority therefore is well satisfied that each knee is reasonably justified as separately unfitting and meriting separate service rating.

After considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board minority recommends a disability rating of 10% for the chondromalacia patella, right knee and 10% for the chondromalacia patella, left knee both coded 5024 (tenosynovitis).

RECOMMENDATION:  The Board minority, therefore, 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 his prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chondromalacia Patella, Right Knee	5024	10%	
Chondromalacia Patella, Left Knee	5024	10%	
Degenerative Disc Disease, Lumbar Spine	5242	10%	
COMBINED	30%