RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX		CASE:  PD-2014-03419
BRANCH OF SERVICE:  Army		SEPARATION DATE:  20050901

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3, Motor Transport Operator, medically separated for “chronic low back pain…” and “chronic pain left [sic] right knee pain” rated 10% and 0%, respectfully, with a combined rating of 10%.

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 - 20050621	VARD - 20060301	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5299-5237	10%	Degenerative Disk Disease, Thoracolumbar Spine	5010-5242	20%	20051209	
Chronic Pain, Right Knee…	5099-5003	0%	Degenerative Joint Disease, Right Knee	5299-5260	10%	20051209	
COMBINED RATING:  10%	COMBINED RATING FOR ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Chronic Low Back Pain.  The service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM) documented care for non-traumatic low back pain that began in 2002.  Diagnostic imaging (MRI) in June 2004 was normal without evidence of disc bulge or herniation, nor bony vertebral abnormalities.  Two separate family medicine visits in June and July 2004 documented antalgic gait and nonspecific tenderness at both visits, and “abnormal” range of motion (ROM) at one visit.  At a chiropractic visit in September 2004 (12 months pre-separation), the physical examination showed ROM of forward flexion at 40 degrees (normal 90) with pain, paraspinal muscle tenderness, and normal heel-to-toe walk.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “chronic low back pain” for PEB adjudication.

During the MEB examination (documented on the Standard Form 2808) dated 11 April 2005 (5 months pre-separation), the physical examination showed spinal and paraspinal tenderness, normal gait, and nonspecific “limitation of movement” of flexion, extension, and left lateral bending.  During the MEB NARSUM examination performed by physical therapy on 06 April 2005 (5 months pre-separation) showed a forward flexion of 40 degrees and combined ROM of 150 degrees (normal 240); limited by pain.

At the VA Compensation and Pension (C&P) examination dated 9 December 2005 (3 months after separation), the CI reported constant back pain that did not cause incapacitation, nor functional impairment and did not result in time lost from work.  The physical examination showed a flexion to 50 degrees with pain, muscle spasm, spinal tenderness, with radiating pain (nonspecific) on bending.  Nerve tension testing was negative (straight leg raise bilaterally).

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the low back condition 10% analogously coded 5299-5237 (lumbosacral strain), citing tenderness and pain limited ROM.  The VA rated the low back condition 20% analogously coded 5010-5242 (arthritis due to trauma - degenerative arthritis of the spine), based on the VA C&P examination 3 months after separation, citing flexion greater than 30 degrees but not greater than 60 degrees.

The Board considered the evidence for a rating higher than 10%.  The Board agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) reported by the MEB NARSUM and VA C&P examination proximate to separation.  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 low back condition coded 5237 (lumbosacral strain).

Chronic Pain, Right Knee.  The STR and MEB NARSUM documented worsening knee pain since basic training with no specific history of trauma.  At separate visits to orthopedics in February 2004 (19 months before separation) and primary care in August 2004 (13 months pre-separation), the physical examiners documented no evidence of effusion, laxity, or instability, with a ROM of 0-135 degrees (normal 0-140) or described as “good.”  An MRI in May 2005 (4 months pre-separation) documented chondromalacia of the right knee.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  The MEB forwarded “chronic left knee pain” for PEB adjudication; however, the Board agreed the STR, MEB NARSUM and VA diagnosed a “right” knee condition which was adjudicated by this Board.

During the MEB examination dated 11 April 2005, and MEB NARSUM examination dated 30 May 2005, physical examination findings included right knee “clicking” with flexion; ROM of full extension and flexion; no evidence of edema and normal strength and sensation.

At the VA Compensation and Pension (C&P) examination dated 9 December 2005 (3 months after separation), the CI reported pain limited ROM that did not cause incapacitation, and did not result in time lost from work.  The physical examination showed a right leg limp, wear of a right knee brace, locking pain, crepitus, and a flexion of 120 degrees with painful motion.  There was no evidence of laxity or meniscal injury.  Radiographic evaluations documented degenerative arthritic changes.

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated the right knee condition 0% analogously coded 5099-5003 (degenerative arthritis), citing the US Army Physical Disability Agency pain policy.  The VA rated the right knee condition 10% analogously coded 5299-5260 (leg, limitation of flexion), citing due to pain, fatigue, weakness, and lack of endurance following repetitive use.  There was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) as both the MEB and VA examinations documented evidence of chondromalacia and degenerative arthritis.  There was no 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 ligamentous instability or laxity (5257), or dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) in support of a higher rating.  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 condition, analogously coded 5299-5260.

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the Board unanimously recommends a disability rating of 20% coded 5237 IAW VASRD §4.71a.  In the matter of the right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5260 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 of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Chronic Low Back Pain	5237	20%	
Chronic Pain, Right Knee	5299-5260	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20143419, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 
XXXXXXXXXXXXXXXXXX, AR20160017184 (PD201403419)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA