RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-03113
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20061119

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Blackhawk Helicopter Repairer, medically separated for “chronic back pain with L5-S1 herniated nucleus pulposus” and “chronic pain left knee” rated 10% and 10%, respectfully, with a combined disability rating of 20%.

CI CONTENTION:  “Please 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 based upon a 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 - 20061119	VARD - 20090624	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5243	10%	L5-S1 Herniated Nucleus Pulposus and DDD w/ Sciatic Radiculopathy	8521-5243	10%	VA Clinic Records	
Chronic Pain…Left Knee	5099-5003	10%	Status Post ACL Repair	5257	10%		
			Traumatic Arthritis Left Knee	5003-5261	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Back Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a long history of low back pain and stiffness after heavy workouts which worsened after a fall.  Diagnostic imaging (CT and MRI) from March and August 2005 documented a midline disc bulge at the L5-S1 vertebral level.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “low back pain- L5-S1 herniated nucleus pulposus, and degenerative disc disease, with sciatic radiculopathy” for PEB adjudication.

At the MEB examination on 2 March 2006 (8 months pre-separation), the CI reported numbness and tingling in the bilateral lower extremities.  The physical examination showed paraspinal tenderness, decreased range of motion (ROM) with pain, and normal lower extremity strength and reflexes.  Testing for nerve root irritation was negative.

At the MEB NARSUM examination on 24 June 2006 (5 months pre-separation), the CI reported constant pain that radiated to the buttocks and the posterior right lower extremity and was worsened by coughing, sneezing, and standing for greater than 20 minutes.  Physical examination showed the ROM as “abnormal and reduced” flexion and extension due to pain with no evidence of tenderness, muscle spasms, or abnormal contour.  Decreased sensation was noted in the S1 nerve distribution.  The examiner documented an antalgic gait with no limp observed.  At a physical therapy visit in September 2006 (2 months pre-separation), revealed the ROM of flexion to 40 degrees (normal 90) with painful motion.  There was no documentation of incapacitating episodes requiring physician prescribed bed rest.  

There was no VA Compensation and Pension (C&P) examination within 12 months after separation (“failed to report”).

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the chronic back pain condition 10% coded 5243 (intervertebral disc syndrome), citing pain limited ROM with localized tenderness.  The VA also rated the back condition 10% analogously coded 8521-5243 (external popliteal nerve, paralysis of -intervertebral disc syndrome) based on VA treatment records, citing spinal tenderness.

The Board agreed there was pre-separation evidence of forward flexion to 40 degrees in support of a 20% rating coded 5237 (lumbosacral strain).  There was no documentation of intervertebral disc syndrome with incapacitating episodes which would provide for a higher rating under that formula or evidence of ratable peripheral nerve impairment which would provide for additional rating.  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.

Left Knee.  According to the STR and MEB NARSUM the CI received left anterior cruciate ligament (ACL) reconstruction and revision surgery in January 2004 after a February 2003 football injury.  Due to persistent pain and swelling after reinjury, another surgery (lateral condyle allograft replacement) was performed in November 2005.  Further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic left knee pain, secondary to degenerative changes” for PEB adjudication.  

On the MEB DD Form 2807-1 dated 2 March 2006 (9 months pre-separation), the CI reported use of a knee brace.  Radiographic imaging (MRI) from March 2006 reportedly documented diffusely thinning cartilage and irregular bony surfaces.

At the MEB NARSUM examination the physical examination showed “normal” knee flexion and extension with no limping observed.  At an orthopedic visit in August 2006 (3 months pre-separation), the CI reported pain with walking and the orthopedic examiner documented “occasional mechanical symptoms but inconsistent,” and ROM of 0-125 degrees (normal 0-140 degrees).  An MEB NARSUM Addendum, also performed by orthopedics, in September 2006 documented the CI with a limp and pain with simple weight bearing.  The physical examination showed lateral tenderness and effusion, with a ROM of 0-130 degrees.  The knee was stable to lateral stress and had evidence of grade 1 ACL laxity (less than 5 mm of movement) with a firm endpoint.  
The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the left knee condition 10% analogously coded 5099-5003 (degenerative arthritis), citing US Army Physical Disability Agency’s pain policy.  The VA rated the left knee condition 10% analogously coded 5003-5261 (degenerative arthritis; leg - limitation of extension), based on VA treatment records, citing painful motion and lack of full extension.  The VA also rated the left knee condition 10% coded 5257 (knee, other impairment…lateral instability, slight), citing instability and use of a brace.

The Board considered the evidence for a higher than 10% rating.  There was evidence of painful motion with functional loss and limitation of motion supporting a 10% rating (based on §4.59, §4.40 and §4.45) as adjudicated by the PEB.  There was no evidence of more significant limitation of motion which supported a higher rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  There was no evidence of frequent episodes of locking, pain and effusion into the joint for a higher rating 5258.  The Board additionally considered if there were sufficient evidence of knee instability for dual coding of the knee, or a higher rating under code 5257 (Knee, other impairment).  During the August and September examinations (2 months before separation) performed by orthopedics, the examiner noted “inconsistent mechanical symptoms” and documented a stable knee, respectfully.  The Board therefore determined that there was insufficient evidence for an additional rating for instability.  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 left knee condition. 

BOARD FINDINGS:  In the matter of the chronic back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the chronic pain 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.  

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic Back Pain with L5-S1 Herniated Nucleus Pulposus 	5237	20%	
Chronic Pain Left Knee 	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140628, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160017159 (PD201403113)

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 re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% 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 30% 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: