RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-03210
BRANCH OF SERVICE:  Army	BOARD DATE:  20141209
SEPARATION DATE:  20040723

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (92F10, Petroleum Supply Specialist) medically separated for a cervical and lower extremities 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 “chronic cervical pain,” “bilateral knee pain,” and “bilateral shin splints” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, as not meeting retention standards.  The MEB also identified and forwarded “adjustment disorder w/depressed mood and partner relational problem,” as meeting retention standards.  The Informal PEB adjudicated “chronic cervical strain” and “bilateral lower extremity pain” as unfitting, rated at 10% and 0%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining condition was determined to be not unfitting.  The CI non-concurred to the IPEB findings thus requested and granted a Formal PEB (FPEB).  The FPEB reviewed and reaffirmed the IPEB proceedings.  The CI non-concurred with the FPEB findings, but did not submit a rebuttal 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 Service ratings for the unfitting cervical and bilateral lower extremity conditions are addressed below.  The requested adjustment disorder, which was determined to be not unfitting by the PEB, is likewise addressed below.  Any condition or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service FPEB – Dated 20040420	VA* - (6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Cervical Strain 	5237	10%	Cervical Strain	5010-5237	10%	20050124	
Bilateral Lower Extremity Pain (Knee and Shins)	5099-5003	0%	Shin Splint, Right Leg	5010-5262	10%	20050124	
			Shin Splint, Left Leg	5010-5262	10%	20050124	
Adjustment Disorder…	Not Unfitting	No VA Entry	
Other x 0 (Not in Scope)	Other x 0	
Combined/Rating:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20050226 (most proximate to date of separation)

ANALYSIS SUMMARY:

Chronic Cervical Strain Condition.  Treatment records document that the CI presented on 11 April 2002 with a 17-day history of neck pain after sustaining a fall.  The examination was significant for trapezius and rhombus muscle tightness.  The CI was diagnosed with cervical strain and treated with pain/muscle relaxant medication and activity modification.  X-ray images obtained on 10 June 2002 and an magnetic resonance imaging study on 2 January 2003 were both normal.  The CI underwent a course of physical therapy sessions for neck pain, which provided no relief.  A surgical evaluation on 11 February 2004 documented a motor vehicle accident in May 2002, which subsequently result chronic neck pain and decreased range-of-motion (ROM).  The examination was significant for tenderness to palpation over the cervical spinous process and paravertebral muscles (left greater than right) and pain limited motion.  The examiner stated that surgical intervention was not necessary.

During the narrative summary (NARSUM) examination the CI reported dull constant neck pain, rated 4/10 at rest that worsen with activity; he denied neurologic symptoms.  The NARSUM examination was significant for tenderness over the cervical through thoracic spine, upper back, and shoulders.  There was noticeable tissue swelling at the right cervical spine area.

At the VA Compensation and Pension (C&P) examination (performed 6 months after separation); the CI reported constant, aching neck pain rated 3/10.  The pain was worse with physical activity and relieved by pain medication.  He reported no time lost from work.  The physical examination was significant for cervical tenderness without evidence of radiating pain or muscle spasms.  Additional limitation of ROM was noted to be primarily due to pain, but also as a result of fatigue, weakness, lack of endurance, and incoordination.

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.

Cervical ROM
(Degrees)	MEB ~ 7 Mo. Pre-Sep	VA C&P ~ 6 Mo. Post-Sep	
Flex (45 Normal)	10	30	
Extension (45)	15	30	
R Lat Flexion (45)	10	30	
L Lat Flexion (45)	10	30	
R Rotation (80)	5	60	
L Rotation (80)	5	60	
Combined (340)	55	240	
Comment	Tenderness to palpation, right paravertebral soft tissue swelling	Tenderness without evidence of muscle spasms	
§4.71a Rating	30% (PEB 10%)	20% (VA 10%)	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic cervical strain condition as unfitting with a disability rating of 10%, code 5237 (cervical strain).  The VA rated the cervical strain condition at 10% for forward flexion greater than 30 degrees and a combined ROM greater than 170 degrees, but not greater than 335 degrees, analogous code 5010-5237 (arthritis), due to trauma-cervical strain.  The Board deliberated whether there was evidence for a higher than 10% rating IAW Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a.  The Board noted that NARSUM examination documented cervical forward flexion restricted to 10 degrees, a combined ROM of 55 degrees, and paravertebral tissue swelling on the right.  The VA examination documented increased cervical forward flexion to 30 degrees without evidence of muscle spasms.  Radiographic evaluations did not evidence cervical spine pathology.  The Board determined that cervical flexion not greater than 30 degrees documented at the VA examination mostly closely approximated the CI’s functional limitations at the time of separation and met the criteria for a 20% disability 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 chronic cervical strain condition.

Bilateral Lower Extremity (Knee and Shins) Pain Condition.  The CI presented in March 2002 with left knee pain after running.  On 13 November 2002 the CI presented with a week history of bilateral knee pain.  The physical evaluation demonstrated crepitus (grinding sensation) in each knee without tenderness.  X-rays performed at that time were normal.  A bone scan performed on 17 December 2003 revealed evidence of bilateral shin splints, patella stress reaction, and a right with diffuse stress reactions.  At an orthopedic evaluation dated 24 February 2003 the CI reported his right knee was greater than left knee pain, rated 5/10 at rest 6-7/10 with activity.  He reported that the pain was worse in the morning.  The physical examination demonstrated mild gait abnormality, pain at the end ranges of active motion, and no evidence of instability.  The examiner rendered a diagnosis of bilateral patellofemoral pain syndrome and was referred to physical therapy.  The NARSUM notes no improvement in knee pain with physical therapy, a mild limp and stiff gait, pain at the end range of motion, and a palpable soft tissue mass that dip at the lower end of the tibia bilaterally.  A prior diagnosis of fascial defect was noted.

At the VA C&P exam (performed 6 months after separation), the CI reported constant pain with incapacitating episodes as often as 4 times per month.  The physical examination demonstrated a normal gait, full painful motion, and no evidence of instability.  Diagnoses of bilateral shin splints, fascial herniation, and bilateral patella stress reaction were rendered.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the bilateral lower extremity pain (knees and shins) due to stress reactions as a single unfitting condition with a disability rating of 10%, analogous to degenerative joint disease with application of the USAPDA pain policy.  The PEB and VA adjudicated the lower extremity conditions (shin splints, patellofemoral pain, and fascial herniation pain) as one pain dominant functional impairment, IAW §4.14, avoidance of pyramiding.  The VA assigned a 10% disability rating for each lower extremity, analogous code 5010-5262 (arthritis, due to trauma) tibia and fibula, impairment.  Although VARSD §4.71a permits combined ratings of two or more joints under 5003, as adjudicated by the PEB, it also allows individual ratings for separately compensable joints.  The Board may recommend separate ratings for joints adjudicated by the PEB as a single unfitting condition, if it is determined that each joint can be reasonably justified as separately unfitting and is compensable IAW VASRD §4.71a.

The Board then considered if the each lower extremity could be reasonably justified as separately unfitting.  Both extremities were profiled; diagnosed with patellofemoral pain, shin splints, and fascial defects; treated with activity modification, physical therapy, and required pain medications.  The Board determined that each lower extremity could be reasonably justified as separately unfitting.  The Board then considered if there was evidence for a higher than 0% rating for the each knee.  The evidence supported that both legs demonstrated painful motion and pain with use for a 10% rating.  There was no evidence of incapacitating exacerbations, flexion limited to 30 degrees, or extension limited to 15 degrees for a 20% evaluation under VASRD codes 5003, 5260, or 5261.  There was no evidence of instability for a separate rating under VASRD code 5257.  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 each lower extremity; a combined 20% rating for the bilateral lower extremity pain (knees and shins) due to stress reactions condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that adjustment disorder with depressed mood and partner relational problem were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The adjustment disorder with depressed mood and partner relational problem profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any of these 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 the any of the 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating bilateral lower extremity pain (knees and shins) due to stress reactions was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic cervical strain condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the right lower extremity pain (knees and shins) due to stress reactions, the Board unanimously determined that it was separately unfitting and recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left lower extremity pain (knees and shins) due to stress reactions, the Board unanimously determined that it was separately unfitting and recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended adjustment disorder w/depressed mood and partner relational problem conditions, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  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:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Cervical Strain	5237	20%	
Right Lower Extremity Pain (Knees and Shins) Due to Stress Reactions	5099-5003	10%	
Left Lower Extremity Pain (Knees and Shins) Due to Stress Reactions	5099-5003	10%	
COMBINED (w/ BLF)	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140502, 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, AR20150011223 (PD201403210)

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:

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