RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03608
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20051115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E6, Military Police, medically separated for “chronic low back pain…” and “chronic right knee pain…,” rated 10% and 10%, respectively, with a combined disability rating of 20% .  

CI CONTENTION:  The CI requested consideration of 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 on 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 –20050919	VARD - 20060615	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, Status Post L4-5 Fusion, without Neurologic Abnormality	5241	10%	Post Posterior Fusion L4-L5 with Foraminotomy; Lumbar Strain; S1 Transitional Vertebra	5243-5237	20%	20060324	
			Scar, Status Post Back Surgery	7804	0%		
Chronic Right Knee Pain	5099-5003	10%	Right Knee Patellar Tendonitis and Chondromalacia Patella	5019	10%		
Right Wrist Pain	Not Unfitting	Degenerative Joint Disease, Right Wrist	5003-5215	10%		
Right Lateral Epicondylitis		Right Elbow Osteophytosis 	5299-5206	10%		
Right Shoulder Pain		Degenerative Joint Disease, Right Shoulder 	5003-5201	10%		
Left Foot 1st Metatarsal Pain		Left Foot 1st Metatarsal Pain	5299-5283	NSC		
Gastroesophageal Reflux		Gastroesophageal, Reflux Disease	7399-7346	10%	20060228	
Hypertension		Hypertension	7101	0%		
Depression		Pain Disorder (Claimed as Depression)	9422	50%	20060310	
Obstructive Sleep Apnea		Obstructive Sleep Apnea	6847	50%	20060228	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  90%	
ANALYSIS SUMMARY:    

Chronic Low Back Pain.  In May 2003 the CI presented with chronic low back pain and a history of an L4-L5 herniated nucleus pulposus (HNP) that worsened after the CI stepped in a hole.  Treatment consisted of Vicodin (hydrocodone, a narcotic and APAP (acetaminophen, a pain reliever), Motrin (ibuprofen, a nonsteroidal anti-inflammatory drug [NSAID]), Flexeril (cyclobenzaprine, a muscle relaxer) and physical therapy.  The CI again reported back pain after stepping off an uneven surface in January 2004 with occasional numbness in his legs and Mobic (meloxicam, an NSAID) replaced the Motrin.  Magnetic resonance imaging (MRI) in June 2004 ordered for low back pain with radiation to the left lower extremity demonstrated moderate degenerative disk disease with disk space narrowing and desiccation at the L4-5 level.  A huge disk herniation with a possible extruded fragment caused severe compression of the thecal sac and probably the left L5 nerve.  A physical therapist noted bilateral radiculopathy, left greater than right; and lumbar traction was used to ameliorate the pain.  The CI underwent surgery consisting of a left L4-L5 hemilaminotomy with a medial facetectomy and microdiscectomy in September 2004.  Post-operatively, the left leg pain resolved, but the CI had 3/10 low back pain.  An X-ray series in March 2005 demonstrated a normal lumbosacral spine.  

At the Medical Evaluation Board (MEB) examination, the CI reported on DD Form 2807-1, dated 4 March 2005, the surgery eliminated most leg pain, but did little for the low back pain.  The MEB physical examiner noted on DD Form 2808, Report of Medical Examination, (22 March 2005) range of motion (ROM) measurements of flexion 80 degrees, extension 5 degrees, rotation 40 degrees each side, and lateral flexion 25 degrees each side.  There was tenderness in the lumbar area with motor, sensory, deep tendon reflexes, straight leg raise (to determine nerve root irritation), and heel and toe walk intact.  The MEB narrative summary (NARSUM) dated 28 June 2005 indicated that subsequent to surgery, the CI’s radicular symptoms had improved, but he continued to have constant pain, which was treated with regular ant-inflammatory medication and intermittent narcotics.  A neurosurgeon did not recommend an additional procedure.  A permanent U2L3 profile was issued on 29 June 2005 with limitations of all physical fitness testing and all military functional activities with additional restrictions of no load bearing equipment, no Kevlar and no riding tactical vehicles.  The commander’s statement dated 8 August 2005 indicated the CI was physically incapable of reasonably performing his duties as a military police officer because he could not lift, carry, or stand for extended periods of time or deploy.

At the VA Compensation and Pension (C&P) examination dated 24 March 2006, 4 months after separation, the CI reported dull and constant baseline pain with a severity of 3/10.  He denied any incapacitating episodes during the prior 12 months and used no brace for the back.  On examination, the CI’s gait was non-antalgic and there was some loss of normal lumbar lordosis.  There was tenderness of the 4.5 cm scar, which was slightly left of the midline at L5-S1, but at no other paravertebral muscular sites or on the spine.  ROM measurements of the trunk were flexion 50 degrees, extension 25 degrees, right side bending 25 degrees, left side bending 30 degrees, right rotation 30 degrees, and left rotation 25 degrees; all motions were with pain.  Motor strength of the lower extremities was 5/5 and sensation was normal.  Straight leg raising evoked lower back pain and there was pain at the sacroiliac joint area. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5241 (spinal fusion) for chronic low back pain, status post L4-5 fusion, without neurologic abnormality.  The PEB assigned a 20% rating using code 5243-5237 (intervertebral disc syndrome-lumbosacral strain) for post posterior fusion L4-L5 with foraminotomy, lumbar strain, and S1 transitional vertebra.  The VA assigned a 0% rating using code 7804 (scar(s), unstable or painful) for a scar, status post back surgery, which is not in the Board’s scope of review.  

The Board then considered whether an additional Service 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 postoperatively.  Therefore, a radiculopathy could not be recommended for additional disability 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 low back condition.  

Chronic Right Knee Pain.  A right lateral collateral sprain was noted in November 2004.  An MRI of the right knee in April 2005 demonstrated chondromalacia of the patella and of the medial and lateral knee joint compartments and the cruciate and collateral ligaments were intact.  Right lateral knee pain after stepping in a hole and twisting it did not respond to conservative treatment.  However, X-rays in November 2005 of the right lateral knee were unremarkable.  At the MEB examination, the CI reported on the DD Form 2807-1 dated 4 March 2005 he was seen in February 1998 for an injury to the right knee and again on 10 November 2004. The examiner noted on DD Form 2808 dated 22 March 2005 there was joint line pain in the right knee without effusion or instability and facet tenderness.  The MEB NARSUM dated 28 June 2005 indicated the CI was without improvement with physical therapy and pain was present 50-75% of the time, which required regular anti-inflammatory medication.  No surgical recommendation was made to ameliorate the knee pain.  A permanent L3 profile included the right knee among the medical conditions with limitations as noted above.  The commander’s statement dated 8 August 2005 indicated the CI was physically incapable of reasonable performing his duties as a military police officer because he could not lift, carry, or stand for extended periods of time or deploy.

At the VA C&P examination dated 24 March 2006, performed 4 months after separation, the CI reported knee pain and pointed to the anterior lateral joint line and described it as “dull, burning, not constant” with stiffness when driving.  On examination there was no evidence of genu valgum (knock-knee) or varum (bow legs).  Slight edema was present in the right infrapatellar area laterally and there was tenderness to palpation at the patellar tendon, lateral femoral condyle, medial femoral condyle, and medial joint line.  Right knee ROM was 5 to 125 degrees with complaints of right knee pain at the extremes of flexion and extension.  Motor strength was 5/5 and sensation was intact.  There was no laxity and a pivot shift test was negative.  A McMurray test (to determine a meniscal tear) evoked a slight popping sensation in the lateral patella facet area without increased knee pain.  A patella grind test was negative, and there was patellar crepitus.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating using code 5099-5003 for chronic right knee pain IAW the U.S. Army Physical Disability Agency pain policy (AR 635-40).   The VA assigned a 10% rating using code 5019 for right knee patellar tendonitis and chondromalacia patella.  The Board sought a route to a higher rating was unable to do so in the absence of ankylosis (5256), knee impairment with recurrent subluxation or lateral instability (5257), cartilage dislocation or removal (5258 or 5259), limited flexion to 45 degrees or less (5260), limited extension to 15 degrees or more (5261), or tibia and fibula impairment (5262).  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 chronic right knee pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that right wrist pain, right lateral epicondylitis, right shoulder pain, left foot 1st metatarsal pain, gastroesophageal reflux, hypertension, depression, and obstructive sleep apnea 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 right wrist pain, right lateral epicondylitis, and right shoulder pain were profiled, but were not explicitly implicated in the commander’s statement and were not judged to fail retention standards.  The left foot 1st metatarsal pain, gastroesophageal reflux, hypertension, and depression were not profiled or implicated in the commander’s statement and were not judged to fail retention standards; however the obstructive sleep apnea was profiled with a temporary P3, but was not implicated in the commander’s statement and was not judged to fail retention standards.  The aforementioned was reviewed 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:  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic right knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right wrist pain, right lateral epicondylitis, right shoulder pain, left foot 1st metatarsal pain, gastroesophageal reflux, hypertension, depression, and obstructive sleep apnea 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, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140730, 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, AR20160011579 (PD201403608)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review
(DoD PDBR) recommendation and record of proceedings pertaining to the subject
individual. Under the authority of Title 10, United States Code, section 1554a, I accept
the Board's recommendation and hereby deny the individual's application.
This decision is final. The individual concerned, counsel (if any), and any Members of
Congress who have shown interest in this application have been notified of this decision
by mail.

Enclosure
CF:
( ) DoD PDBR
( ) DVA