RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03043
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070820

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-7 (M1 Abrams Tank System Maintainer) medically separated for chronic low back pain and chronic bilateral knee pain, rated 10% and 0%, respectively. 

CI CONTENTION:  The CI requests that Board review all of his conditions.  His 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 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:  

IPEB – Dated 20070222	VA* - (~1 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Disk Disease, Lumbar Spine	5242	40%	20070824	
Bilateral Knee Pain	5099-5003	0%	Right Knee Patellofemoral Syndrome	5260	10%	20070824	
			Left Knee Patellofemoral Syndrome	5260	0%	20070824	
Headaches	Not Unfitting	Headaches	8100	NSC	20070824	
Costochondritis	Not Unfitting	Costochondritis	5321	NSC	20070824	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0	
RATING:  10%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20070910 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Chronic Low Back Pain Condition.  The service treatment record (STR) has limited primary source material for review; however, the Medical Evaluation Board (MEB) Consultation (Fit for Duty Evaluation) dated 6 November 2011, on which the MEB Narrative Summary (NARSUM) dated 13 December 2006 was based, addressed his low back pain, which began in the late 1990s when he fell off a tank.  Pain has been off and on since that time; but he reported it had become gradually worse over the prior year or two and was described as stabbing, aching, and sometimes pins and needles in the lumbar and lumbosacral regions.  The NARSUM noted that over the prior 6 years, he had over 20 visits for medical care for low back pain through civilian doctors because he was a recruiter and had been on quarters seven times.  The CI apparently had some physical therapy and local injections, which were not been helpful and he took ibuprofen (nonsteroidal anti-inflammatory medication) as needed.  On the NARSUM examination of the lumbar spine, there was tenderness to palpation of the paraspinous muscles.  There was no redness, stepoff, or bruising.  Straight leg testing (to determine nerve root irritation) was negative bilaterally.  His gait was normal.  Range -of-motion (ROM) measurements for flexion were 15 degrees three times limited by pain. Extension testing was declined.  Neurologic evaluation was unremarkable.  At an October 2006 occupational therapy session, the CI was able to lift and carry a 20-pound box from a table to the floor and back, albeit with pain 10/10 both before and after the task. A spine X-ray series showed mild disk space narrowing at L5-S1 with Schmorl nodes (disc protrusions into adjacent vertebrae) at L1 and L3 in October 2006, while a November 2006 MRI of the lumbar spine showed multilevel degenerative disc disease and subannular fissures (a rip in the ring that surrounds each disc) with multiple disc protrusions and minimal central canal stenosis.  The CI reported eight hours per day of sharp, aching pain in his lower lumbar spine at a pain level of 10/10 that was exacerbated by lifting more than 25 pounds, standing from a seated position, rolling over in bed unevenly, or sitting in place for more than one hour.  Motrin (ibuprofen), hot soaks, ice, massage, and chiropractic manipulation did not help.  

On the Report of Medical History (DD Form 2807-1), dated 9 November 2006, the CI recorded “severe back pain inability to move as much” and “loss of sleep due to lower back pain.  More often last year ½.”  The examiner annotated “some tingling/numbness along bottom of back without radiation,” while on the Report of Medical Examination (DD Form 2808), dated 11 December 2006, the examiner noted a decreased ROM of the T/L (thoracolumbar spine with tenderness to touch of the L-S (lumbosacral) spine without pv (paravertebral) spasms.  A permanent L3 profile was issued on 20 December 2006 for low back pain and bilateral knee pain (see below) with limitations of physical training and testing and most military functional activities, but the CI could march up to 1/4 mile without a backpack or armored vest.  The commander’s statement dated 25 January 2007 indicated the CI was relieved of his duties as a Recruiting Station Commander and was reclassified as an Abrams tank maintainer, but the commander did not witness any evidence the CI was in pain while the CI was conducting his normal duties as a recruiter.  

At the VA Compensation and Pension (C&P) examination dated 24 August 2007, 4 days post-separation, the CI reported stiffness and weakness.  He described the pain as crushing, squeezing, burning, aching, oppressing, sharp, sticking, and cramping in nature and noted the severity of the pain to be 10/10.  In the prior year he had three incidents of incapacitation for a total of 19 days.  Examination revealed no radiating pain on movement.  Paralumbar muscle spasm was present with tenderness in the midline lumbar area.  Straight leg raising was negative bilaterally.  The ROM measurements were 10 degrees each for flexion and extension with a combined ROM of 60 degrees and joint pain was not additionally limited.  There were no signs of intervertebral disc syndrome with nerve root involvement.  A thoracic spine X-ray report showed scoliosis convex rightward, otherwise normal, and a lumbar spine X-ray report showed degenerative arthritis. 

The goniometric 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.

Thoracolumbar ROM
(Degrees)	MEB ~9 Mo. Pre-Sep
	VA C&P 4 days Post-Sep
	
Flexion (90 Normal)	15	10	
Extension (30)	Not Tested	10	
R Lat Flexion (30)	10	10	
L Lat Flexion (30)	5	10	
R Rotation (30)	30	10	
L Rotation (30)	25	10	
Combined (240)	-	60	
Comment	Tenderness of the paraspinous muscles; flexion limited by pain 	Paralumbar muscle spasm; DeLuca negative; no nerve root involvement.	
§4.71a Rating	40% (PEB 10%)	40%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5237 (lumbosacral strain) for low back pain, while the VA assigned a 40% rating using code 5242 (degenerative arthritis of the spine) for degenerative disk disease of the lumbar spine.  The MEB examination, approximately 9 months prior to separation, was not significantly disparate from the VA C&P examination just 4 days post-separation in regard to flexion at 15 degrees and 10 degrees respectively.  Therefore, flexion of either 15 degrees or 10 degrees warrants a 40% rating.  In the absence of ankylosis and at least 6 weeks of incapacitating episodes using the formula for rating intervertebral disc syndrome during the prior 12 months, the Board was unable to find a route for a higher rating than 40%. The Board considered whether an additional rating could be recommended under a peripheral nerve code.  Although the pain component of the neuropathy is appropriately subsumed in the spine rating IAW VASRD §4.71, which states that “rating is performed with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease,” there was no sensory component with any significant functional implications and no motor weakness was in evidence.  Therefore, the radiculopathy could not be recommended for additional disability rating.  After an extensive discussion of the CI’s duties as a recruiter versus those of a tank maintainer and after due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 40% for the low back condition.  

Bilateral Knee Conditions.  At noted previously, there was limited primary source material in the STR.  The NARSUM dated 13 December 2006 noted the CI developed bilateral knee pain running uphill in 1997.  After a year for persistent pain, he was placed on a permanent L3 profile.  For the prior six years he was a recruiter and the knee pain did not interfere with his duties, but he was due to return to tank mechanic duties where the pain was expected to be an issue.  Examination of the knees showed a full ROM bilaterally without instability, meniscal tears by McMurray testing, or effusions.  There was tenderness to palpation about the medial and lateral joint lines of each knee.  There was pain with patellar compression and a popping sound was heard with knee ROM while performing patellar compression bilaterally.  In October 2006 bilateral knee X-rays were normal.  The CI reported bilateral retropatellar pain at a level of 8-9/10 that worsened with walking up and down stairs or prolonged sitting in place, driving or standing in place and the pain improved with lying down, massage, and ibuprofen.  No surgery was recommended.   

On the Report of Medical History (DD Form 2807-1), dated 9 November 2006, the CI recorded “knee pain late 1990’s bone on bone sensation,” while on the Report of Medical Examination (DD Form 2808), dated 11 December 2006, the examiner noted a full active ROM of the knees bilaterally 0-130 degrees with tenderness to palpation over the medial and lateral compartments bilaterally.  There was no effusion, crepitus (a grating sound or feel), or instability either knee and meniscal testing was negative bilaterally.  A permanent L3 profile was issued on 20 December 2006 for low back pain (see above) and bilateral knee pain with limitations of physical training and testing and most military functional activities, but the CI could march up to ¼ mile without a backpack or armored vest.  The commander’s statement dated 25 January 2007 noted the CI was not witnessed conducting any physical activity outside the scope of administrative office duties and he did not participate in Company physical training due to his physical profile.  No pain was witnessed when the CI conducted his normal duties and the commander was not familiar with duties of a 63A40 could not speculate whether the CI could perform those duties.

At the VA C&P examination dated 24 August 2007 the CI reported being diagnosed with patellofemoral syndrome and noted it occurred when he “fell accidentally on a run.”  He had weakness, swelling after major walking, giving way, lack of endurance, and fatigability with pain 9/10 and had one episode of incapacitation for three days in the prior year.  He was not receiving any treatment for the condition.  On examination there was tenderness of the both the right and left knees without edema, effusion, weakness, guarding of movement or subluxation, but there was crepitus bilaterally without locking.  Bilaterally there was no instability and meniscal testing was normal.  The ROM of flexion of the right knee was 140 degrees and of the left knee was 120 degrees and neither ROM was additionally limited after repetitive use.  Right and left knee X-ray findings were within normal limits.  Gait was normal and the CI did not require an assistive device for ambulation.

The 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.

Knee ROM
(Degrees)	MEB ~9 Mo. Pre-Sep
	VA C&P 4 days  Post-Sep
	
	Left	Right	Left	Right	
Flexion (140 Normal)	Full	Full	140	120	
Extension (0 Normal)	Full	Full	0	0	
Comment	No instability; meniscal testing negative; no effusions; tenderness to palpation over the infrapatellar ligaments and mild tenderness to palpation about the joint lines of each knee
	Tenderness; no subluxation or guarding; crepitus present	Tenderness; no subluxation or guarding; crepitus present	
§4.71a Rating	0%	0%	VA 10%	VA 10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 5099-5003 for bilateral knee pain while the VA assigned a 10% rating for right patellofemoral syndrome using code 5260 (leg, limitation of flexion) and a 0% rating for left patellofemoral syndrome using code 5260.

Board Approach to PEB Consolidated Rating.  The PEB combined the left knee pain and right knee pain conditions under a single disability rating, coded analogously to 5003.  Although VARSD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  If supported under VASRD §4.71a, separate ratings for PEB bilateral joint adjudications may be recommended by the Board.  The Board first considered whether the bilateral knee pain was reasonably justified as separately unfitting.  Members agreed that the evidence supports that the functional limitations of the bilateral knee pain could be reasonably justified as separately and a separate rating is recommended.   In this case, both knees were profiled, considered to fail retention standards, and implicated by the NARSUM, but not explicitly addressed in the commander’s statement.  Members agreed that each knee is separately unfitting and that identical coding and ratings are applicable.  Because the MEB examination of the knees did not demonstrate a ratable ROM, painful motion IAW VASRD §4.59, meniscal removal or dislocation, instability or ankylosis, a rating of 0% using the analogous code 5003 for each knee is not unreasonable.  A VA examination more proximate to separation noted crepitus present for each knee, but rated the right knee 10% and the left knee 0%.  However, the VA’s award of 10% for the right knee was for “leg flexion which is limited to 45 degrees.”  However, the actual VA examination revealed the correct ROM to be 140 degrees, which is also non-compensable, while the correct ROM for the left knee was 120 degrees, which is also not compensable.  The Board considered whether the VA examination, which noted crepitus, would warrant invoking VASRD §4.59 and decided that it was insufficient to invoke painful motion.  Therefore, while the Board considered a 10% rating for each knee, there was insufficient evidence to support that rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% for the left knee condition and a disability rating of 0% rating for the right knee condition. 

Contended PEB Conditions-Headaches and Costochondritis.  The Board’s main charge is to assess the fairness of the PEB’s determination that headaches and costochondritis (chest pain related to inflammation of the cartilage connecting the ribs to the breast bone) conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The headaches and costochondritis were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  The NARSUM noted the CI reported headaches that he treated with Advil or Motrin (ibuprofen-nonsteroidal anti-inflammatory medications).  The VA C&P examination indicated the CI had no migraine symptoms and there was no functional impairment resulting from the headaches that occurred an average of three times per month for three hours.  The NARSUM noted the CI reported costochondritis since a 1998 injury to his chest marked by recurrent pain one to two times per week with various motions of the body, while the VA indicated the CI reported the pain level, which came on by itself and was relieved by itself, was at 10/10.  The CI did not receive any treatment for it and the VA examiner concluded the functional impairment was limited to reaching and lifting overhead.  Bilateral rib X-ray test results were within normal limits.  All of the aforementioned was reviewed and considered by the Board.   There was no performance based evidence from the record that either the headaches or the costochondritis conditions significantly interfered with satisfactory duty performance.  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 either the headaches or costochondritis contended conditions and so no additional disability ratings are recommended.

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the chronic low back condition, the Board unanimously recommends a disability rating of 40%, coded 5237 IAW VASRD §4.71a.  In the matter of the right knee pain condition, the Board unanimously recommends a disability rating of 0%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left knee pain condition, the Board unanimously recommends a disability rating of 0%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended headaches and costochondritis 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; 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	RATING	
Chronic Low Back Pain	5237	40%	
Right Knee Pain	5099-5003	0%	
Left Knee Pain	5099-5003	0%	
COMBINED (w/ BLF)	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140620, 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 XXXXXXXXXXXXXXXXXXXX, AR20160005010 (PD201403043)

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:

Enclosure

CF:
( ) 000 PDBR
( ) OVA