RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04074
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Infantryman, medically separated for “chronic back pain” and “chronic bilateral knee pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI requests 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 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 - 20051110	VARD - 20071109	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain	5299-5237	10%	Multi-Level Degenerative Disc Disease of the T-Spine with Multiple Hernia ION of Nucleus Pulposus and Old Compression Fracture of the T12 Vertical Body, Lumbosacral Strain	5237	20%	20070530	
Chronic Bilateral Knee Pain	5099-5003	10%	Patello-Femoral Syndrome, Left Knee	5260-5024	10%	20070530	
			Patello-Femoral Syndrome, Right Knee	5260-5024	10%	20070530	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began while deployed to Iraq in 2005, after lifting heavy equipment.  The CI reported low back pain (LBP) and magnetic resonance imaging (MRI) studies showed “minor” degenerative disc changes at T12-L1.  There was no surgical indication and the CI was treated with anti-inflammatory medications and therapy.  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 “lower back pain” for PEB adjudication.

The MEB NARSUM examination on 15 September 2005, 3 months prior to separation, noted complaints of LBP.  Physical examination showed a limping gait due to right lower knee pain.  There was tenderness to palpation in the lumbar region and painful heel and toe walk.  Back range of motion (ROM) measurements, conducted by physical therapy (PT) on 22 August 2005, showed flexion of 75 degrees (90 is normal) and combined ROM of 215.  Lower extremity strength, sensation, and reflexes were normal and straight leg raise testing elicited pain bilaterally.  

At the 30 May 2007 VA Compensation and Pension (C&P) evaluation, performed 18 months after separation, the CI reported LBP with radiation to bilateral lower extremities, aggravated by prolonged sitting or walking.  The CI was noted to be employed as a police officer and “on his feet a lot,” which aggravated his pain.  The physical examination showed no muscle spasms or abnormal gait, sensory and motor exams were normal, and testing (Lasegue’s sign) for radiculopathy was negative.  Thoracolumbar spine ROM measurements showed a forward flexion of 50 degrees and a combined ROM of 200 degrees, with painful motion and no additional loss of ROM with repetition.  Lower extremity strength, sensation, and reflexes were normal.  The examiner noted that there were no incapacitating episodes in the past 12 months. 

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing ROM limited by pain with localized tenderness.  The VA rated the back condition 20% coded 5237 (lumbosacral strain), based on the VA C&P examination 18 months after separation, citing loss of function to include pain on movement, weakness, and lack of endurance on repetitive use.  The ROM values reported by the VA examiner 18 months after separation are significantly worse than those reported by the MEB examiner 3 months before separation.  While ROM limitations may have progressed over time, there was no evidence in the record from which to conclude that the severity of the low back condition at separation approached that portrayed by the VA measurements.  Members agreed that the MEB examination was more consistent with the STR and more reflective of the anticipated severity based on the clinical pathology.  The Board therefore relied more heavily on the MEB examination measurements and agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the MEB NARSUM examination.  There was no muscle spasm or guarding severe enough to result in an 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 (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  Therefore the Board concluded there was no support for a higher rating than the rating adjudicated by the PEB.  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 back condition.   

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single service disability rating, coded analogously to 5003 and rated 10%, citing application of the USAPDA pain policy.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  The Board also noted that “bundling,” the combining of two or more major joints, may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

According to STR and the MEB NARSUM the chronic bilateral knee pain began in January 2005 during deployment when a Humvee door weighing approximately 100 pounds fell and hit the back of his right knee and caused severe swelling.  The CI was treated with rest and medications, but was eventually medically evacuated to the continental United States in June 2005 due to back and bilateral knee pain.  Bilateral knee MRI were performed for traumatic bilateral knee pain secondary to hyperextension injury.  The left knee MRI noted a full thickness cartilage defect of the patella with degenerative patellar changes (chondromalacia patella) and a ganglion cyst, without meniscal tear or ligament injury.  MRI of the right knee also showed chondromalacia patella.  Despite treatment, the chronic bilateral knee pain 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 “bilateral knee chondromalacia patella” for PEB adjudication.

The MEB NARSUM dated 15 September 2005, noted complaint of bilateral knee pain.  Physical examination noted the CI had a limp favoring the right lower extremity due to pain, exquisitely painful heel toe walk, and positive grinding test of bilateral knees (left greater than right).  The effusions examination also noted mild atrophy of distal quadricep muscles bilaterally, without knee.  Knee ROM measurements from PT were recorded as right knee flexion of 130 degrees (140 normal), left knee flexion of 135 degrees, and extension was normal bilaterally, with painful motion bilaterally.  

At the 30 May 2007 VA Compensation and Pension (C&P) evaluation, performed 18 months after separation, the CI reported intermittent pain, stiffness, and swelling, and at times giving way and locking of the left knee.  Pain was precipitated by excessive activity and walking.  On physical examination the CI’s gait was noted as normal ambulation without assistive devices.  Knee ROM measurements recorded flexion of 120 degrees bilaterally and normal extension bilaterally, with “mild” bilateral crepitus.”  There was painful motion, weakness, and lack of endurance of the left knee noted, but there was no additional loss of ROM of either knee with repetition.  There was no evidence of instability or meniscal pathology of either knee.  Bilateral knee X-rays were reported as normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee chondromalacia patella 10%, coded 5099-5003, and cited the USAPDA pain policy.  The VA rated both the left and right knees 10%, coded 5260-5024 (limitation of leg flexion-tenosynovitis) and cited limited motion with crepitus bilaterally and painful motion of the left knee.  The Board first considered if both knees remained unfitting when separated from the PEB’s combined adjudication as elaborated above.  The bilateral knee chondromalacia patella was permanently profiled and implicated in the commander’s statement as contributing to the CI’s duty limitations.  The NARSUM indicated that bilateral knee pain impaired the CI’s ability to perform his duties and the CI did not meet retention criteria due to bilateral knee pain.  The Board concluded that the NARSUM provided satisfactory evidence for painful motion of both knees; thus, separate ratings are indicated IAW §4.71a.  There was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261) for either the left or right knee.  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) or history of surgery to remove a meniscus (5259) to support a rating under the respective codes for either knee, and there was no fracture, non-union, or malunion of the femur or tibia of either knee to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for the left knee and the right 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% each for the left and right knee conditions, both coded 5099-5014 (analogous to osteomalacia and additionally used for chondromalacia patella).  

BOARD FINDINGS:  In the matter of the chronic back pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral knee condition, the Board unanimously recommends that each joint be separately adjudicated as follows: an unfitting right knee condition coded 5099-5014 and rated 10%, and an unfitting left knee condition coded 5099-5014 and rated 10%, both 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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Back Pain	5299-5237	10%	
Right Knee Pain	5099-5014	10%	
Left Knee Pain	5099-5014	10%	
COMBINED	30%	

The following documentary evidence was considered:

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

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 AR20160013327 (PD201404074)

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