RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02573
BRANCH OF SERVICE:  Army	BOARD DATE:  20150130
SEPARATION DATE:  20041102

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (31C1O, Radio Operator – Maintainer) medically separated for lumbar and left knee conditions.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The conditions, characterized as “lower back pain” and “left knee pain”, were forwarded as the sole submissions to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated the conditions as unfitting, rated 10% each, referencing the US Army Physical Disability Agency (USAPDA) pain policy the left knee condition.  The CI made no appeals and was medically separated.  

CI CONTENTION:  “Please consider all conditions” 

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 left knee conditions are addressed below.  No additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may remain eligible for future consideration by the Board for Correction of Military Records.  

RATING COMPARISON:  

IPEB – Dated 20040830	VA (~1 Month Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	10%	Chronic Low Back Pain	5237	Not Service Connected (NSC)	20041208	
Chronic Pain, Left Knee…	5099-5003	10%	Chronic Bilateral Knee Pain	5257		20041208	
Other x 0 (Not In Scope)	NSC x 4 Additional	
RATING:  20%	RATING:  0%	
Derived from VA Rating Decision (VARD) dated 20050209 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:

Lumbar Spine Condition.  There is a paucity of outpatient entries in the available service treatment record (STR) for this condition.  The only significantly probative entry is a Physical Medicine consult from 16 July 2004 (three plus months prior to separation, and dated four days after the narrative summary [NARSUM]).  This documents an onset of chronic low back pain “about 14 months ago while deployed to Iraq and sleeping on cots”, noting a preceding course of physical therapy.  Normal electrodiagnostic testing of the lower extremities was also documented.  The pain (specifying the absence of radicular symptoms) was described as constant, rated 2/10, with exacerbation to 5-6/10 “after lifting activities.”  The physical exam recorded “gait: antalgic, without assistive device” and documented 5/5 strength with normal neurologic findings.  Range of motion (ROM) was recorded as “reduced flexion and extension due to pain”, describing flexion as 13 inches from fingertip to floor (roughly 70⁰).

The NARSUM documented a one year history of lower back pain without elaborating details of onset.  The pain was characterized as “moderate and constant”, and only profile limitations were elaborated.  Normal x-ray findings were documented.  The physical exam noted the absence of tenderness and normal neurological findings with 5/5 strength.  There was no comment directed at gait or spinal contour.  The recorded ROM measurements were flexion to 85⁰ (normal 90⁰) and combined ROM of 190⁰ (normal 240⁰).  

A VA Compensation and Pension (C&P) examination was conducted 8 December 2004 (one month post-separation), and documented “chronic low back pain for 20 months” without elaboration of onset or clinical course.  The pain was characterized as “daily”, rated 5/10, “elicited with physical activity ... unable to lift heavy objects”, with no indication of radicular symptoms, and documenting the absence of any incapacitating episodes.  The VA physical exam documented a normal gait with no spasm or tenderness, normal strength and neurological findings; and, recorded normal measured ROM values in all planes “not limited by pain, fatigue, weakness, lack of endurance or incoordination.”

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s DA Form 199 documented the VASRD §4.71a criterion of combined ROM of 190⁰ as the basis for its 10% rating.  The VA rating decision (VARD) referenced the lack of service evidence for “any complaint of, treatment for, or diagnosis of any back pain or other back condition” as the basis for its denial of service connection; although, the MEB and C&P findings were acknowledged.  Service connection was not granted until a VARD of 26 July 2013 (nearly eight years post-separation) which granted a 10% rating (effective 27 April 2012) based on a C&P exam of 12 April 2013.  The PEB’s 10% rating was compliant with §4.71a based on the NARSUM evidence.  The VA C&P documentation of normal ROM without gait or contour abnormality, spasm, tenderness, painful motion, or incapacitating episodes would not support a compensable spine rating under §4.71a.  Members deliberated if the antalgic gait documented by the Physical Medicine consultant, which was the Service evidence closest to separation and the only evidence addressing gait directly, would justify a recommendation for a 20% rating based on that §4.71a criterion.  Members agreed, however, that this isolated evidence was insufficient support for the higher rating, since it was challenged by the C&P exam (more temporally proximate to separation) and inconsistent with the benign ROM and other physical findings.  There was no evidence of ratable peripheral nerve impairment which would provide for additional rating, or documentation of incapacitating episodes which would provide for a higher rating under that formula.  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 lumbar spine condition.

Left Knee Condition.  There was no probative outpatient evidence referable to the knee condition in the available STR; although, the NARSUM documented an orthopedic consult and normal magnetic resonance imaging of the joint.  The NARSUM examiner recorded a “two-year-history of left knee pain, first injured in AIT [Advanced Individual Training], but re-injured it approximately one year ago, in July 2003, when he had worsening knee pain after a company run.”  The pain was characterized as “slight and constant”, and only profile limitations were elaborated.  The physical exam recorded tenderness; but, no effusion, signs of cartilage impingement, or instability.  Measured flexion was 135⁰ (normal 140⁰; minimum compensable 45⁰).  

The post-separation VA C&P examination (same as cited for lumbar) documented bilateral knee pain of 20 months duration without further elaboration.  Pain was described as constant, with the examiner stating that the CI “cannot walk or stand for long periods of time”, but documenting the absence of incapacitation or work loss.  The VA physical exam recorded the lack of swelling or effusion, the absence of impingement or instability, and, normal painless ROM (flexion 140⁰, extension 0⁰).  The examiner opined “there was no specific pathology to render a diagnosis.”

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating cited the USAPDA pain policy, but was compliant with §4.71a criteria for the ROM and findings documented by the NARSUM.  The VA denial cited the C&P examiner’s opinion as above.  The left knee received a 0% rating via the same 2013 VARD (with same effective date and exam) referenced for the lumbar condition.  There is no evidence for compensable ROM impairment, frequent effusions, or locking which would support a rating higher than 10% under any applicable code; and, no grounds for additional rating of instability.  After due deliberation, considering all evidence and with deference to reasonable doubt, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication of the left 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the left knee condition was operant in this case and the condition was adjudicated independently of that policy by this Board.   In the matter of the lumbar spine condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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 20140525, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	XXXXXXXXXXXXXXX
	President
	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, AR20150010914 (PD201402573)

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	      XXXXXXXXXXXXXXX
		     Deputy Assistant Secretary of the Army
		          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA