RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04198
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050701

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “low back pain, with spondylosis L3-4, L4-5 degenerative disc disease [DDD], without neurologic abnormality” and “bilateral patellofemoral pain syndrome, without neurologic abnormality” rated 10% and 0%, respectively, with a combined disability 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 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 - 20050428	VARD - 20050817	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain…	5299-5242	10%	Spondylosis with L3-4, L4-5 DDD	5242-5243	20%	20050407	
Bilateral Patellofemoral Pain Syndrome…	5099-5003	0%	Patellofemoral Syndrome (PFS), Left Knee	5099-5024	0%	20050407	
			PFS, Right Knee	5099-5024	0%	20050407	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back pain condition began in August 2002 during military training when he felt his back “pop” and his legs gave out; no specific injury or trauma was noted.  He continued experiencing pain exacerbations over a 2-year period.  Diagnostic imaging in February 2004 revealed spondylosis at L3-4 L4-5 with early DDD and no evidence of thecal sac or nerve root impingement.  An orthopedic examination in October 2004 recorded that the CI could heel and toe walk, tight rope walk and squat with back flexion to “within 8 inches of the floor.”  The examiner further noted that a November 2003 X-ray revealed a loss of lumbar lordosis with mild lumbar scoliosis.  No surgical recommendations were noted.  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 “spondylosis w/L3-4, L4-5 degenerative disc disease” 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)	NARSUM~4 Mo. Pre-Sep	VA ~3 Mo. Pre-Sep	
Flexion (90 Normal)	35	80	
Combined (240)	170	150	
Comments	Painful motion; spasm; normal gait	Painful motion; TTP; spasm; abnormal gait	
§4.71a Rating	20%	20%	

The MEB NARSUM examination on 8 March 2005 (4 months before separation) noted complaints of continued back pain with pain radiating to both legs accompanied by numbness.  Diagnostic imaging from February 2004 showed spondylosis at L3-4 and L4-5 with degenerative changes; a bone scan in March 2005 was consistent with sacroiliac joint arthritis.  Physical examination documented pain limited ROMs as charted above.  Provocative straight leg raise (SLR) testing for radicular symptoms was positive bilaterally and reflexes were normal.  

At the 7 April 2005 VA Compensation and Pension (C&P) evaluation (3 months before separation), the CI complained of constant pain (rated at 7/10) with standing, walking, bending, twisting and lifting and had incapacitating episodes which reportedly occurred as often as 8 times per year and lasted 3 days.  In addition, the CI stated that in the past year, he had experienced 8 incidents of incapacitation totaling 24 days.  Physical examination showed muscle spasms, abnormal gait, and radiating pain on flexion.  ROM was limited by pain, fatigue, weakness and lack of endurance and is charted above.  The examiner noted positive SLR testing bilaterally and abnormal lower extremity motor function bilaterally with slight weakness (4/5 with 5/5 being normal).  Sensory testing was normal and reflexes were symmetric at 3+ (slightly brisk) with “no signs of intervertebral disc syndrome (IVDS) with chronic and permanent root involvement.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5299-5242 code (degenerative arthritis of the spine), citing thoracolumbar ROM limited by pain, tenderness to palpation and muscle spasms.  The VA assigned a 20% rating using the analogous 5242-5243 code (intervertebral disc syndrome) based on the VA C&P examination 3 months before separation, citing the 20% general spine formula rating criteria.  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) as documented in the MEB NARSUM or muscle spasm or guarding severe enough to result in an abnormal gait as reported in the VA C&P evaluation.  Although it was noted that the CI reported incapacitating episodes totaling 24 days (less than 4 weeks is the 20% criteria), there was no evidence of physician-prescribed bed rest and treatment to warrant consideration of rating under the alternate VASRD formula for IVDS.  The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI reported intermittent paresthesia/numbness to both legs.  There was no fixed neurologic deficit on service examinations; however, the pre-separation VA examination documented slight bilateral leg weakness without specifying any nerve distribution.  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 was no evidence in this case that motor weakness existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an 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 recommends a disability rating of 20% for the low back pain condition, coded 5299-5242.  

Bilateral Patellofemoral Pain Syndrome (PFPS).  According to the STR and MEB NARSUM, the CI’s bilateral knee pain condition began in December 2002 without trauma or injury.  There was occasional knee swelling with popping and grinding, and pain was intensified by walking, marching, running, and climbing stairs or hills.  Physical therapy and medication did not provide relief.  Despite treatment, the right and left knee conditions could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for a MEB.  The MEB forwarded “patellofemoral pain syndrome both knees” for PEB adjudication.  

The MEB NARSUM examination on 8 March 2005, 4 months before separation, noted complaints of bilateral knee pain which had increased in the last year.  Diagnostic imaging was normal and the examiner documented anterior prepatellar and bilateral patellar medial/lateral pain.  There was no quadriceps or lateral/posterior joint line pain and no ligamentous instability.  Bilateral ROM was 0-115 degrees (normal 140).  The examiner stated that the CI was unable to perform his duties, military training and the Army fitness test due to his knee conditions.  

At the VA C&P examination in April 2005, performed 3 months before separation, the CI reported constant knee pain without incapacitation and no functional impairment resulting in time lost from work.  Physical examination showed normal knee joint appearance and negative meniscal and laxity tests bilaterally.  The ROM for each knee was 0-140 degrees and not limited by pain, fatigue, weakness, lack of endurance or incoordination with repetitive use.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the right and left knee conditions under a single service disability rating, assigning a 0% rating, coded 5099-5003.  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.  The evidence for the right and left knee conditions are presented together, with attendant recommendations regarding unfitness.  

The PEB assigned a 0% rating under an analogous 5099-5003 code (arthritis degenerative), citing no ligamentous instability and pain rated as slight and occasional with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The VA assigned a 0% rating for the left knee and a 0% rating for the right knee using an analogous 5099-5024 code (tenosynovitis) for each, based on the VA C&P examination 3 months before separation, citing ROM not limited by pain, fatigue, weakness, lack of endurance or incoordination with repetitive use.  The Board deliberated on the probative value of the examinations in evidence.  The NARSUM indicated decreased ROM bilaterally and was open to interpretation on whether ROM limitations were due to pain or painful motion.  The VA knee examination was essentially normal, but did not appear to align with the preponderance of the evidence of the record regarding functional loss.  The Board majority placed the highest probative value for rating on the NARSUM.  There was insufficient evidence of painful motion (based on VASRD §4.59) to support a 10% rating for either knee alone.  However, the Board majority adjudged that the limitation of motion and clinical diagnosis of bilateral PFPS reasonably warranted a 10% rating for evidence of involvement of 2 or more major joints without incapacitating exacerbations.  There was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  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.  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).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a disability rating of 10% for the bilateral knee pain condition, coded 5099-5003.  

BOARD FINDINGS:  In the matter of the low back pain condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a.  In the matter of the bilateral knee pain condition, the Board majority recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  The single voter for dissent recommended no change and did not elect to submit a minority opinion.  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	
Low Back Pain…	5299-5242	20%	
Bilateral Patellofemoral Pain Syndrome	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20141028, 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, AR20160011608 (PD201404198)

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