RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03945
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E6, Nuclear Biological Specialist, medically separated for “low back pain” and “right partial anterior cruciate ligament (ACL) tear,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI’s conditions continue to worsen and negatively impact her employability.  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 confined to 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 – 20050622	VARD - 20060619	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5242	10%	Degenerative Disc Disease, Lumbar Spine	5243	20%	20060814	
Right Partial ACL Tear with Some Clinical Laxity	5257	10%	Internal Derangement, Right Knee	5257	20%	20060814	
Migraine Headaches	Not Unfitting	Migraines	8100	30%	20060814	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain condition began in January 2003 after being thrown about the compartment of a vehicle while on a patrol in Iraq.  According to the NARSUM, magnetic resonance imaging (MRI) studies from August 2004 showed minimal disk protrusion at L4/5 and L5/S1.  At the time of the orthopedic clinic appointment on 20 December 2004, the examiner recorded the lumbosacral spine exhibited a normal appearance, exhibited no tenderness on palpation and exhibited no muscle spasms.  At the time of the physical therapy (PT) clinic appointment on 18 January 2005, the examiner recorded the lumbosacral spine exhibited tenderness with pain radiating down the right leg.  Electrodiagnostic studies (EMG/NCV), 10 March 2005, were negative for radiculopathy.  There was no surgical indication.  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 an MEB.  The MEB forwarded “multilevel degenerative disk disease at L4/5 and L5/S1” for PEB adjudication.  

The range of motion (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.  

Thoracolumbar ROM
(Degrees)	MEB ~3 Mos. Pre-Sep	VA ~12 Mos. Post-Sep	
Flexion (90 Normal)	90	70 ; Flares 40	
Combined (240)	225	220	
Comments	Painful motion	Mild muscle spasm; abnormal gait  spasm not responsible for abnormal gait); flares limit flexion to 40 degrees	
§4.71a Rating	10%	10%-20% (VA 20%)	

The MEB NARSUM examination on 9 May 2005 (3 months prior to separation), noted complaints of not being able to sit or stand for long periods of time.  Physical exam showed painful motion (summarized above) and gait was normal.  Provocative testing for radicular symptoms was positive.  There were mild deficits to light touch and pinprick on the right of lower extremity.  

At the VA Compensation and Pension (C&P) examination on 14 August 2006, 12 months after separation, the CI reported continued back pain with monthly numbness and daily paresthesia (abnormal sensation).  She described symptoms of decreased motion, mild stiffness, mild spasm, and moderate weakness.  She also reported pain radiating to the posterior thigh and to the posterior calf of the right lower extremity, and occasionally to left lower extremity.  Physical exam showed that ROM was painful and limited as summarized above, with examiner stating that flexion would be decreased to 40 degrees during flare-ups.  There was an antalgic gait and mild muscle spasm; however, the examiner indicated that muscle spasm, localized tenderness or guarding was not severe enough to be responsible for abnormal gait or abnormal spinal contour.  Motor, sensory and reflex testing of the lower extremities was normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back pain condition 10% coded 5299-5242 (degenerative arthritis of the spine), citing no neurologic deficit and ROM limited by pain.  The VA rated the low back pain condition 20% coded 5243 (intervertebral disc syndrome), based on the VA C&P examination 12 months after separation, citing limitation of forward flexion at 40 degrees.  The Board noted the disparity between the MEB and VA examinations and carefully reviewed the evidence proximate to separation to determine the probative value of each examination.  The MEB examination supported a 10% rating based on limitation of ROM while the post-separation VA C&P examination supported a 20% rating based on ROM during flare-ups.  The service treatment record did not indicate severe flare-ups with additional functional loss or ROM limitations or any episodes of back spasm or guarding severe enough to cause either an abnormal gait or abnormal spinal contour.  

The Board’s rating recommendations are based on ratable criteria at the time of separation; therefore, higher probative value is placed on evidence most proximate to that time.  The MEB exam was most proximate to separation; best represented the disability picture portrayed in the preponderance of the record; and was therefore adjudged to have the highest probative value for rating at separation.  The Board agreed that a 10% rating, but no higher, was justified for combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the NARSUM examination proximate to separation (or for tenderness or painful motion).  There was no muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  

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.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported numbness and paresthesias and the NARSUM exam supported some level of radicular nerve irritation or involvement, but electrodiagnostic studies and the slight right leg sensory findings proximate to separation revealed no objective findings of radiculopathy that would impact duty performance.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have suffered additional pain from the nerve involvement, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  Therefore the critical decision is whether or not there was a significant motor weakness which would impact military occupation specific activities.  There is no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that additional disability rating was not justified on this basis.  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 pain condition.  

Right Partial ACL Tear.  According to service treatment records and the MEB NARSUM, the CI’s right knee condition began in January 2003 after being thrown about the compartment of a vehicle while on a patrol in Iraq.  According to the NARSUM, a right knee X-ray during April 2004 showed a normal knee and MRI studies from October 2004 showed suggestion of a partial ACL tear.  There was no surgical indication.  Despite treatment, the right knee condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “right knee ACL tear” for PEB adjudication.  

The 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.  

Right Knee ROM
(Degrees)	MEB ~3 Mos. Pre-Sep	MEB ADDENDUM ~2 Mos. Pre-Sep	VA C&P ~12 Mos. Post-Sep	
Flexion (140 Normal)	140		0-120	
Extension (0 Normal)	2 (hyperextension)		140-0	
Comment	Normal gait	Full range-of-motion; mild effusion, crepitus	Antalgic gait, crepitus, positive McMurray, moderate instability	
§4.71a Rating	10%	10%	20%	

At the time of the orthopedic clinic appointment on 20 December 2004, the examiner recorded laxity of the anterior cruciate ligament and “anterior drawer sign was present.”  Knee showed no deformity but did not show full ROM.  At the MEB NARSUM examination on 9 May 2005 (3 months prior to separation) the CI reported receiving a knee brace for her right knee, which she used every day.  She also complained of not being able to sit or stand for long periods of time and experienced swelling of her right leg if she stood too long.  She experienced some tingling in both of her legs, and was unable to run, jump, and play with her son.  Her pain was never under a 4 on a pain scale and she was taking Naproxen (nonsteroidal anti-inflammatory), Neurontin (neuroactive medication), and Tylenol 3 (narcotic) to help with her pain.  She declined surgery as a therapeutic option.  Physical exam showed normal gait and “mild deficits and light touch and pinprick on right of lower extremity.”  

The MEB NARSUM addendum dated 9 June 2005 (2 months prior to separation), noted mild effusion.  The patella demonstrated crepitus and was shifted laterally.  The tibial tubercle was tender on palpation.  There was full ROM, no swelling, no erythema, and no deformity.  Patella showed no increased medial mobility and no increased lateral mobility.  There was no tenderness on palpation at the joint.  No hyperextension.  No laxity of the medial collateral ligament, lateral collateral ligament or anterior cruciate ligament.  KT2000 (a knee ligament arthrometer used for laxity measurements) right knee was 3mm (left knee was 5mm) and there was no laxity of the posterior cruciate ligament.  No anterior drawer sign was present and McMurray test was negative.  

At the VA Compensation and Pension (C&P) examination on 14 August 2006 (12 months after separation), the CI reported pain with walking stairs, walking a block and instability.  She also reported symptoms of giving way, pain, stiffness, weakness, and effusion.  No episodes of dislocation, subluxation, or locking.  Physical exam showed crepitus, excessive motion, and moderate instability (measured at 7mm; cruciate).  There was no patellar abnormality, but there was meniscus abnormality with a positive McMurray's test.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10% (coded 5257, knee, other impairment of), citing “some clinical laxity.”  The VA rated the right knee condition 20% coded 5257 (knee, other impairment of), citing moderate instability.  The Board noted the disparity between the MEB and VA examinations and carefully reviewed the evidence proximate to separation to determine the probative value of each examination.  The MEB Addendum examination supported a 10% rating based on slight instability while the post-separation VA C&P examination supported a 20% rating based on moderate instability.  The Board adjudged that the MEB exam was most proximate to separation, and best represented the CI’s disability picture at the time of separation.  

There was no evidence of moderate subluxation or lateral instability to support a 20% rating under the 5257 code (knee, other impairment of).  There was no limitation of motion (5260, 5261), no history of surgery to remove a meniscus (5259), and no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) to support a rating under the respective codes.  Finally, there was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  No additional functional limitation was evidenced by the Service examinations.  There was insufficient evidence for dual rating of the knee.  

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 right knee condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that migraine headaches was 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 migraine headaches were profiled and judged to fail retention standards by the MEB; however, they were not implicated in the commander’s statement.  Migraine headaches was reviewed and considered by the Board.  The CI had a normal head CT scan in July 2003, for a history of recurrent headache.  The NARSUM indicated the CI continued to have headaches with nose bleeds, visual symptoms, vomiting, and dizziness with her headaches and was taking medication (Imitrex) for her headaches.  The NARSUM also indicated that the CI was “still seen frequently at the Aid Station for migraine headaches, which are triggered by various smells and only relieved with sleep.”  However, review of the record did not indicate frequent medical visits for headaches.  There was no performance-based evidence from the record that the migraine headaches condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the low back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the 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 migraine headaches 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.  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 20140908, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

28 JUL 2016

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, AR20160009417 (PD201403945)

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.

BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF:
( ) DoD PDBR
( ) DVA