RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-02670
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20060322

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

CI CONTENTION:  “Respectfully Request You Consider All Conditions.”  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 - 20051212	VARD - 20070414	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Radiating LBP	5299-5237	10%	DDD, Lumbar Spine	5242	10%	20070320	
Chronic Bilateral Knee Pain	5003	0%	PFPS, Right Knee	5299-5260	0%	20070320	
			PFPS, Left Knee	5299-5260	0%	20070320	
OSA	Not Unfitting	Sleep Apnea	6347	50%	20070320	
Bilateral Ankle Pain		DJD, Right Ankle	5003-5271	0%	20070320	
		DJD, Left Ankle	5299-5271	0%	20070320	
Chronic Sinusitis		Chronic Sinusitis	6513	10%	20070320	
Alcohol abuse		No VA Placement	
Non-allergic Rhinitis		No VA Placement	
Myoclonic Jerks on R Side		Myoclonus	8199-8104	0%	20070320	
Depression		Major Depressive Disorder	9434	30%	20070222	
Anxiety						
Headaches		Headaches	8100	NSC	20070320	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:

Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain (LBP) condition began in 2001 without trauma.  An MRI showed degenerative disc disease (DDD) at L4-5.  Despite physical therapy, occupational therapy, and medications, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty.  He was issued an L3 physical profile and was referred for MEB.  The MEB forwarded chronic LBP to the PEB for adjudication.  The range of motion (ROM) was measured in physical therapy (PT) on 7 September 2005, 7 months prior to separation.  It limited in extension and painful in several planes.  At the MEB NARSUM examination on 21 October 2005, 5 months before separation, the CI reported chronic LBP.  Spinal tenderness was present.  The neurological examination was normal.  Signs of an inappropriate pain response were absent (this is normal).  The ROM was painful, but the actual measurements were not recorded.  At the VA Compensation and Pension (C&P) examination in April 2007, 12 months after separation the CI reported chronic back pain.  The examination revealed a normal gait without spinal guarding or spasm.  The neurological examination was normal; however, the motor examination for the left side was not recorded.  The ROM was reduced for flexion at 80 degrees (normal 90) and total combined was 230 degrees (normal 240).  Motion was painful.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating analogously coded 5299-5237 (lumbosacral strain), with application of the VASRD, citing spinal tenderness.  The VA assigned a 10% coded 5242 (degenerative arthritis of the spine) based on the VA C&P examination 12 months after separation, citing limitation of forward flexion.  Tenderness, the limitation of motion, and painful motion all support a 10% rating.  The Board found no criteria to support a higher rating.  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 for the chronic radiating low back pain condition. 

Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded analogously to 5003 (degenerative arthritis) and rated 0%.  The Board also noted that “bundling,” the combining of two or more major joints may be permissible under the VASRD 5003 rating requirements and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the Disability Evaluation System or be found unfit because of physical disability.  

The record shows that the CI had a right knee arthroscopy in 1989 for medial meniscal tears (MMTs).  It is also recorded that he had a second arthroscopy in 1997, but this appears to be recorded in error.  Regardless, it had no impact on the rating assigned.  A PT encounter on 7 September 2005 recorded a several year history of bilateral anterior knee pain.  The ROM was limited and there was mild pain and the end of passive motion, but not active ROM.  The ROM is charted below.  Despite anti-inflammatory, PT, and various knee braces, the bilateral knee condition could not be adequately rehabilitated to meet the physical requirements of his military specialty.  He was issued an L3 physical profile for bilateral knee pain and he was referred for an MEB.  The MEB forwarded “bilateral knee pain” to the PEB for adjudication.  At the MEB NARSUM examination in October 2005, 5 months before separation, the CI reported chronic bilateral knee pain, present since the knee surgery in 1989.  The knees were stable and without swelling.  There were was positive collateral crepitus.  The ROM was full for flexion and extension; painful motion was not cited.  X-rays taken in December 2004 showed bilateral degenerative changes of patellofemoral joints and medial compartment.  Signs of meniscal irritation were not documented.  A neurological examination, accomplished for a separate diagnosis, on 10 November 2005 showed that the CI favored the right side when walking.  At the VA C&P examination on 20 March 2007, 12 months after separation the CI reported bilateral knee pain and stiffness.  The examination revealed a normal gait with stable joints.  The bilateral ROM was normal with no additional loss of motion on repetitive use; painful motion was not cited.  The notation that the ROM was normal implies that painful motion was absent since its presence is not normal.  X-rays demonstrated increased soft tissue density around the anterior compartment of the knees bilaterally, which the examiner opined may represent subtle effusions.  No bony abnormalities were recorded.  Meniscal signs were not documented.  

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee pain condition at 0%, coded 5003 (degenerative arthritis) IAW the VASRD.  The VA rated each knee 0% analogously coded 5299-5260 (limitation of flexion) based on the C&P examination 12 months after separation, citing non-compensable limitation of motion.  The limitation in motion was not compensable on any examination.  Painful motion was present on some examinations, but not recorded at the MEB NARSUM or on the VA C&P examination which bracket separation.  The knees were consistently noted to be stable.  Signs of meniscal irritation were not documented.  Incapacitation was not recorded.  Signs of arthritis, a progressive disease generally, were present on X-ray in December 2004, but not in 2007.  The gait was normal.  The Board considered if the knees were separately unfitting.  The CI had surgery on the right knee and he favored the right knee at the neurological examination.  This supports a finding that it was unfitting if decoupled from the left knee.  The 5259 code (removal of a meniscus) supports a 10% rating for the right knee.  The Board considered the left knee.  One PT examination, 7 months prior to separation did note painful and limited motion in both knees.  The following examinations, which bracket separation, did not document painful motion or limited motion.  X-rays 15 months prior to separation showed degenerative changes whereas those 12 months after separation did not.  The gait was recorded as either favoring the right (supporting the right knee being unfitting) on one examination, but it was noted to be normal at the next examination.  The evidence does not support a finding that the left knee was separately unfitting at separation.  The Board noted that even if the left knee was determined to be separately unfitting, this provided no rating advantage to the CI as a 10% rating would not be supported.  A 10% combined rating for the knees can be supported either together under 5003, or separately, rating only the right knee using the code 5259.  After due deliberation, and in consideration of all the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended that the bilateral knee condition be rated at 10%, but the code 5003 be retained.

Contended PEB Conditions.  Obstructive sleep apnea (OSA), bilateral ankle pain, chronic sinusitis, alcohol abuse, non-allergic rhinitis, myoclonic jerks on the right side, depression, anxiety and headaches.  These contended conditions were not profiled at separation, but the OSA condition had been profiled P3 on the 2 December 2005 profile.  The commander’s performance statement noted that the CI had not been limited in the performance of his duties by any of his medical conditions.  Only the OSA condition was judged to fail retention standards.  The Board observed that OSA is medically unacceptable, but that PEBs routinely return individuals to duty if the OSA is well controlled with continuous positive airway pressure (CPAP) or after surgery.  There was no performance based evidence from the record that these conditions 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 these contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic radiating low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic bilateral knee pain condition, the Board unanimously recommends that it be rated at 10%, coded 5003 IAW VASRD §4.71a.  In the matter of the contended OSA, bilateral ankle pain, chronic sinusitis, alcohol abuse, non-allergic rhinitis, myoclonic jerks on the right side, depression, anxiety and headaches conditions, the Board unanimously recommends no change from the PEB determinations 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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Radiating LBP	5299-5237	10%	
Chronic Bilateral Knee Pain	5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150501, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXX AR20160013913 (PD201402670)

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