RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03573
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050729

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E5, Light Wheel Vehicle Mechanic, medically separated for “chronic pain bilateral knees status post surgery for meniscal tears,” and “chronic subjective low back pain without neurologic abnormality,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI contended damages to his knees and lower back, as well as additional conditions of gastroesophageal reflux disease (GERD) and tinnitus.  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 - 20050613	VARD - 20070213	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knees Status Post Surgery for Meniscal Tears	5099-5003	10%	Right Knee Osteoarthritis, S/P Repair	5010-5259	10%	20060112	
			Left Knee Osteoarthritis, S/P Partial Meniscectomy	5010-5259	10%		
Chronic Subjective Low Back Pain without Neurologic Abnormality	5299-5237	10%	Lumbar Spine Intervertebral Disk Protrusion at L5-S1 with Degenerative Changes	5242	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knees.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s knee condition began in March 2003 without specific injury or trauma.  The record shows that the CI had longstanding knee pain and was found to have a medial meniscal tear (MMT-a tear of an internal cartilage cushion in the knee) and a lateral meniscal tear (LMT) of the left knee.  The surgery on the right knee was on 18 July 2003 and on the left 9 February 2004.  Despite rehabilitation in physical therapy (PT), he had continued pain and was unable to return to full duty.  He was noted to have normal or near normal range of motion (ROM) in rehabilitation.  The MEB forwarded “bilateral knee pain;” “low back pain” and “neck pain” for PEB adjudication. 

The MEB NARSUM examination on 10 February 2005, 5 months prior to separation, stated the CI was noted to move slowly getting on and off the examination table and getting up from a chair.  The ROM was painful and limited as charted below.  No comment was made on stability or signs of meniscal irritation.  At the 22 December 2005 VA Compensation and Pension (C&P) performed 4 months after separation, the knees were stable without signs of meniscal irritation.  The ROM was limited and painful as charted below.  Repetition did not increase the limitation in motion.  Locking was not recorded and swelling was noted to not be present.  At a spine examination 3 weeks later, the CI was noted to have a normal gait.  He was working as a corrections officer, the same job he held prior to activation.  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)	MEB ~7 Mo. Pre-Sep	VA C&P ~4 Mo. Post-Sep	
	Left	Right	Left	Right	
Flexion (140 Normal)	100	110	125	125	
Extension (0 Normal)	0	0	0	0	
Comment	Painful motion	Painful motion	
§4.71a Rating	10%	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB bundled the knee conditions together and rated them 10%, coded 5099-5003 (analogous to degenerative arthritis).  The Board noted that this rating is consistent with a bilateral condition for degenerative arthritis using this code.  The VA rated each knee separately at 10%, using the dual code 5010-5259 (traumatic arthritis and symptomatic removal of a meniscal cartilage).  The Board first considered if each knee was separately unfitting.  Both knees were profiled, had surgery, were symptomatic, and showed (non-compensable) limitations in motion.  The evidence supports a finding that each was separately unfitting.  The Board then considered the rating.  Both knees had partial removal of meniscal cartilage supporting the use of the code 5259.  Absent locking and an effusion, a 10% rating is supported for each knee.  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 knee, coded 5259.  

Chronic Subjective Low Back Pain (LBP).  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI reported a 20 year history of LBP dating to an injury on duty.  An MRI on 20 May 2004 showed degenerative disc disease (DDD) at L4-5 and L5-S1.  A discogram (injection of dye into a suspected disc) was positive for L4-5 and L5-S1 on 31 August 2004.  He then underwent thermal disc decompression at both discs on 6 October 2004.  This improved his symptoms and the radicular symptoms previously present were resolved.  However, he was still limited in his duties and required ongoing medications for pain control.  The physical examination showed the CI changed positions slowly and with discomfort.  Tenderness was present over the spine, but the neurological examination was normal.  The ROM was nearly normal in flexion, but painful, and the combined ROM limited to 210 degrees (240 is normal).  At the 22 December 2005 VA C&P examination, performed 4 months after separation, a normal gait and neurological examination was recorded.  Tenderness was present without spasm.  Motion was normal but painful.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the LBP condition at 10%, coded 5299-5237 (analogous to lumbosacral strain) and 5242 (degenerative arthritis of the spine), citing ROM limited by pain and painful or limited motion of a major joint, respectively.  There was no criteria in evidence to support a higher rating.  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 LBP condition.  

BOARD FINDINGS:  In the matter of the bilateral knee condition, the Board unanimously recommends a disability rating of 10% each, coded 5259 IAW VASRD §4.71a.  In the matter of the back pain 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 re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Right Knee Pain S/P Surgery for Meniscal Tear	5259	10%	
Chronic Left Knee Pain S/P Surgery for Meniscal Tear	5259	10%	
Chronic Subjective Low Back Pain	5299-5237	10%	
COMBINED (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140516, 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 XXXXXXXXXX, AR20160011578 (PD201403573)

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 30% effective the date of the individual’s original medical separation for disability with Reserve retirement.  

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 Reserve retirement.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will payment of permanent retired pay at 30% effective the date of the original medical separation for disability with Reserve retirement.

	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.

Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA