RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02764
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050311

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E6, Track Vehicle Repairer, medically separated for “chronic low back pain” and “degenerative joint disease, bilateral knees,” rated at 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The applicant makes no specific contention in his application.  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 - 20041129	VARD - 20060223	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5242	10%	Degenerative Disc Disease, Lumbar Spine	5243	NSC	STR	
DJD, Bilateral Knees	5003	10%	DJD, Right Knee	5010	NSC		
			DJD, Left Knee	5010	NSC		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NSC	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began as early as 2000 and worsened in February 2004 after doing sit-ups during a physical training.  Radiographic studies showed degenerative changes and bulging discs at L4-5 / L5-S1, with bilateral neuroforaminal narrowing (space through which the spinal nerve root passes), greater on the right.
At an evaluation by neurosurgery on 26 April 2004, 11 months before separation, the CI reported low back pain (LBP) with radiation to the right thigh, without paresthesia, weakness, or bowel or bladder problems.  The examination noted “good” thoracic and lumbar range of motion (ROM), with normal strength, sensation, and reflexes of the lower extremities (LEs).  The examiner indicated there was no evidence of myelopathy or radiculopathy.  The diagnosis was LBP due to degenerative changes of the spine and a back brace, PT, and a trial of epidural steroids were recommended.  At the neurosurgery follow-up on 28 June 2004, the CI reported improvement with the brace and ESI, but had not been to physical therapy (PT) and he declined further invasive testing or surgery and a “stable exam” was noted.  A primary care note dated 6 July 2004 indicated that the CI had improved somewhat with the ESI, but “had not been at work longer than a few days since FEB,” (a period of 4-5 months).  Despite conservative treatment, the LBP could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty, so he was referred for an MEB.  The MEB forwarded “Degenerative disc disease of the lumbosacral spine with intermittent radicular symptoms at the right leg” 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)	NS ~10 Mos. Pre-Sep (20040426) 	NS ~10 Mos. Pre-Sep  (	PT* ~8 Mos. Pre-Sep
	MEB ~7 Mos. Pre-Sep
	MEB NARSUM* ~5 Mos. Pre-Sep
	
Flexion (90 Normal)	“good” thoracic and lumbar ROM	Stable exam	20 (20)	“decrease flexion 5 degrees”	15 (15)	
Combined (240)	
--	
--
	--	“decreased extension 20 degree”-	80 	
Comments	Nl str, sens, reflexes.
Sits comfortably	No radiculopathy	Painful Motion
Tenderness Functional Loss	Painful Motion, Tenderness	Painful Motion, Functional Loss	
§4.71a Rating	10%	10%	20-40%	-%	20-40%	
*Lumbosacral ROM

At the time of the PT appointment on 9 July 2004 (8 months prior to separation), the CI reported chronic LBP that worsened with activity and interfered with sleep.  The pain radiated down the front of the right LE and ended below the ankles.  The CI denied numbness of the LEs, or bowel or bladder problems.  On examination, provocative testing for nerve root irritation was “positive R LE [right lower extremity] for back pain at approx. 35 degrees with no mention of increased LE pain.”  The therapist noted “lumbosacral spine motion,” with other examination findings, as recorded in the chart above.  At the MEB examination (recorded on DD Forms 2807 and 2808) dated 17 August 2004, the CI reported constant dull LBP that radiated into the buttocks and worsened with movement.  Physical examination showed normal LE strength, sensation, and reflexes and normal spinal contours.  Provocative testing for nerve root irritation was positive on the right side.  The examiner described ROM, along with other examination findings, as recorded in the chart above.  The commander’s statement dated 20 August 2004 indicated the CI was unable to handle or lift the tools and equipment of his specialty or stand or sit for prolonged periods of time.  The MEB NARSUM examination on 30 September 2004 (5 months prior to separation) noted complaints of constant back pain that limited the CI to walking “a couple of blocks” and standing for only 10 to 15 minutes.  Examination revealed normal LE strength and reflexes.  Provocative testing for nerve root irritation was positive bilaterally.  The CI was able to toe and heel walk.  The “LS spine” ROM was reported as indicated in the chart above.  A PT examination on 16 February 2005 (1 month before separation) noted a normal gait.  Based on the VA records in evidence to 2013, it did not appear that the CI ever had a VA Compensation and Pension (C&P) examination.  The original VA Rating Decision was based on service medical records and VA outpatient treatment records not in record.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back pain 10% coded 5299-5242 (analogous to degenerative arthritis of the spine), citing pain limited thoracolumbar ROM and AR-635-40.  The VA determined the condition was not service connected (NSC), based on service treatment records, citing lack of specific injury that caused the back condition.  

The Board noted the PT and MEB NARSUM examinations in the ROM chart above referred to the ROM as lumbar or lumbosacral motion and not thoracolumbar motion as specified by the VASRD.  The ROM values recorded would be consistent with “severe” limitation of the thoracolumbar spine, but if they represented isolated lumbar/lumbosacral ROM, then the combined thoracolumbar ROM would likely be consistent with “moderate” limitation of the thoracolumbar spine.  This introduced uncertainty regarding the ROM and required some assumptions or speculation on the part of the Board to postulate the interpretation of the ROM.  This decreased the probative value of the measurements for the Board, which are normally an objective piece of ratable evidence.  Often a C&P examination proximate to separation clarifies this, but in this case there was no C&P examination for another reference point.  Therefore, the Board reviewed the total evidence in the record to clarify the disability picture at the time of separation.  The ROM values at the PT and MEB NARSUM examinations were inconsistent with the neurosurgery exams in April and June 2004, which documented “good” thoracic and lumbar ROM.  The second of these took place just 10 days before the PT ROM in the chart above, and noted a stable examination since the prior neurosurgery examination and indicated the CI was improved.  The Board also found that flexion values noted between 5 and 20 degrees were inconsistent with PT evaluations in October 2004 that noted the CI was able to successfully perform a full array of therapeutic exercises.  From the totality of the evidence in record, the Board surmised the CI was able to move beyond the severely restrictive 5 to 20 degrees of flexion, however, had significant, frequent pain which limited his ability to perform routine daily activities as noted in the commander’s statement.  Therefore, after deliberations, Board consensus was that the disability picture due to the back was most closely approximated by the 20% rating criteria.  

The Board considered whether a higher rating (§4.7) was achieved by using the alternate rating formula based on incapacitating episodes due to intervertebral disc syndrome.  Although the CI had intervertebral disc disease there were no incapacitating episodes requiring bed rest prescribed by a physician to warrant consideration of rating under the alternate VASRD formula based on incapacitating episodes due to intervertebral disc syndrome.  The record documented that the CI frequently missed work, however, this is not equivalent to a period of bed rest prescribed by a physician as stipulated by the formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the back condition, coded 5243 (intervertebral disc syndrome).  

The Board also considered whether additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  At the MEB NARSUM examination the CI reported occasional radiating pain to the right leg, but all examinations indicated normal strength, sensation, reflexes, and a normal gait.  The neurosurgical consult indicated there was no evidence of a lumbar radiculopathy.  While the CI reported radiating pain, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  The Board therefore concluded that additional disability rating was not justified on this basis.  

Degenerative Joint Disease (DJD), Bilateral Knees.  The PEB combined the right and left knee conditions under a single Service disability rating, coded 5003 (arthritis, degenerative) and rated 10% with application of AR 635-40 B24.f.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling” (the combining of two or more major joints) may be permissible under the VASRD 5003 rating requirements.  The Board’s initial charge in this case was therefore directed at determining whether 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 DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

According to notes in the STR and the NARSUM, left knee pain began as early as 1992 and right knee pain as early as 1998, with no history of trauma or injury to either knee.  An MRI of the right knee in November 1998 showed degenerative tears of both the lateral and medial menisci. An orthopedic note in December 1998 recommended conservative treatment with consideration of arthroscopy if significant symptoms continued.  Despite conservative treatment, the bilateral knee condition could not be rehabilitated to meet the physical requirements of the CI’s military specialty, so he was referred for MEB.  The MEB forwarded “degenerative joint disease of both knees involving all 3 compartments of the knee” for PEB adjudication.  

The permanent profile dated 10 August 2004 listed DJD of both knees.  The NARSUM indicated the CI failed to meet retention standards and listed the back and bilateral knee conditions, with physical limitations of no marching, ruck marching, lifting, or climbing which could be due in part to the back and either or both knee conditions.  The commander’s statement noted only the limitations due to the back condition as impairing the CI’s duty performance.  

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.  

Knee ROM
(Degrees)	
NARSUM ~5 Mos. 
Pre-Sep
	Ortho ~7 Mo. Post-Sep
	Ortho ~10 Mos. Post-Sep
	
	Left	Right	Left	Right	Left	Right	
Flexion (140 Normal)	92	93	125	95-100	-	130	
Extension (0 Normal)	7	5	0	0	-	0	
Comment	Crepitus	Painful Motion	Not addressed	Tender, 
normal gait	Not Addressed	Painful Motion 	
5003	10% 	10%	0%	10%	0%	10%?	
5257	NA	NA	NA	NA	NA	NA	

At the MEB NARSUM examination on 30 September 2004 (5 months prior to separation), the CI reported bilateral “constant global” knee pain with walking and squatting, with an ability to walk only “a couple of blocks” or stand for only 10-15 minutes before needing to stop and sit due to knee and back pain.  He also reported knee swelling after running and a feeling of giving out with deep squatting.  The physical examination of the right knee showed stable ligaments, with painful motion and pain on compression of the knee cap.  Examination of the left knee noted pain on compression of the knee cap along with crepitus (grinding or popping noise or sensation).  The ROM of both knees was as depicted in the chart above.  Bilateral knee X-rays both showed degenerative changes of the patella and anterior tibia.  Notes in the STR after the MEB NARSUM examination indicated the CI underwent three injections (hyalgan) for osteoarthritis of both knees, with reported improvement prior to separation.  At a VA orthopedic appointment for the right knee on 24 October 2005 (7 months post-separation), the CI reported right knee symptoms of “painful catching, and then the knee would swell and be stiff.”  The right knee would also give way and he reported left knee symptoms of “popping”, without swelling.  Physical examination noted a “fairly normal gait”, “very slight” fluid buildup on the right knee and mild crepitus.  The right knee was stable to examination and with ROM as noted in the chart above.  Neurovascular function in both LEs was intact (normal nerve and arterial function).  The examiner “incidentally” noted ROM of the left knee as indicated the ROM chart above.  The examiner indicated that a recent MRI showed medial and lateral meniscal tears of the right knee and surgery to repair the torn cartilage of the right knee was performed on 29 November 2005 (9 months after separation).  At an orthopedic follow-up to surgery on 23 January 2006 (10 months after separation), the CI reported no swelling in the right knee, the locking had gone away, but there was intermittent pain comparable to that prior to surgery.  On examination there was no fluid buildup, the right knee was stable, tenderness was present, and there was mild lateral patellar tracking on the right (knee cap shifting laterally with bending or straightening).  The right LE examination was normal.  Right knee ROM is noted in the chart above.  As noted above, there was no VA C&P examination in record.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left and right knee conditions 10% combined, coded 5003 (arthritis, degenerative).  The VA determined each knee was NSC and assigned the 5010 code (arthritis due to trauma) citing lack of specific injury to cause the DJD (arthritis).  

The Board first considered if both knee conditions remained reasonably considered separately unfitting when separated as elaborated above.  In this case, bilateral knees were considered to fail retention standards; both were implicated by the NARSUM and were profiled.  Notes in the STR noted the CI was treated for osteoarthritis of both knees, with imaging evidence of arthritis of both knees proximate to separation.   

The commander’s statement and other STR evidence did not provide any information which would permit the Board to discriminate the performance limitations attributable to either knee over the other.  Since undue speculation would be required to conclude that impairment from either would not have unacceptably interfered with occupational specialty performance, members agreed that each knee was reasonably justified as separately unfitting and therefore eligible for individual rating recommendations.  

There was degenerative arthritis of both knees documented by imaging and a bilateral 10% rating under the provisions of 5003 was considered, but it was concluded that the MEB NARSUM examination provided satisfactory evidence for painful motion of both knees; thus, separate 10% joint ratings are indicated IAW §4.71a.  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), or history of surgery to remove a meniscus (5259) to support a rating under the respective codes (although there was imaging evidence of meniscal tears of the right knee, the CI had no surgery or criteria for rating under 5258.  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).  No additional functional limitation was evidenced by the examinations.  There is therefore no VASRD §4.71a route to a rating higher than 10% for either knee under any applicable code, and no grounds for additional rating of either knee based on the presence of instability.  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 and 10% for the left knee, both coded 5003.  

BOARD FINDINGS:  In the matter of the chronic back pain, the Board unanimously recommends a disability rating of 20%, coded 5239-5242 IAW VASRD §4.71a.  In the matter of the bilateral knee DJD condition, the Board unanimously recommends disability ratings as follows: an unfitting right knee rated 10% and an unfitting left knee rated 10%, both coded 5003 IAW VASRD §4.71a.  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 prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5243	20%	
Right Knee DJD 	5003	10%	
Left Knee DJD	5003	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140609, 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 AR20160008559 (PD201402764)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the
enclosed recommendation of the Department of Defense Physical Disability Board of
Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual's separation as a permanent disability retirement with the
combined disability rating of 40% effective the date of the individual's original medical
separation for disability with severance pay.

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:

     a. Providing a correction to the individual's separation document showing that
the individual was separated by reason of permanent disability retirement effective the
date of the original medical separation for disability with severance pay.

     b. Providing orders showing that the individual was retired with permanent
disability effective the date of the original medical separation for disability with
severance pay.

     c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will
account for recoupment of severance pay, and payment of permanent retired pay at
40% effective the date of the original medical separation for disability with severance
pay.

     d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP)
and medical TRICARE retiree options.

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