RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04273
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Military Police, medically separated for “compression fracture L1 vertebrae” and “chronic bilateral knee pain,” rated 20% and 0%, respectively, with a combined disability rating of 20%.

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 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 – 20070926	VARD - 20111130	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Compression Fracture L1 Vertebrae	5243	20%	Back Condition	5299-5235	NSC	STR	
Chronic Bilateral Knee Pain	5003	0%	Right Knee Condition	5299-5257	NSC	STR	
			Left Knee Condition	5299-5257	NSC	STR	
Mood Disorder NOS	Not Unfitting	PTSD	9499-9411	NSC	STR	
PTSD	Not Unfitting					
ADHD	Not Unfitting					
RATING:  20%	RATING:  NSC%	

ANALYSIS SUMMARY:  

Low Back.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in January 2005 when the CI was involved in a motor vehicle accident on his way to work in his own car.  He sustained a compression fracture at L1 with loss of one third of the height of the vertebra.  He was given an L2 permanent profile in April 2005.  He had persistent low back pain (LBP) with numbness and tingling of both lower extremities and electrodiagnostic studies showed no evidence of lumbar radiculopathy, but he eventually underwent a laminectomy in January 2006.  The CI initially did well, but fell and re-injured his back and repeat EMG/NCV was negative in July 2006.  An EMG was repeated again in January 2007 for the MEB and was normal.  At an orthopedic visit in February 2007 the CI was noted to be doing better without tenderness, spasm, or radiating pain, with a normal gait.  The MEB forwarded “contusion and sprain lumbosacral back, L1 compression fracture, HNP, low back pain s/p MVA, mild degenerative joint disease” for PEB adjudication.  

During the MEB examination on 12 January 2007, 10 months prior to separation, the CI reported recurrent back pain since his surgery with pain in the right lower extremity (RLE) and numbness in the left lower extremity (LLE) and arthritis.  The examination only noted tight hamstring muscles in the back of the thigh.  The MEB narrative summary (NARSUM) examination, dated 24 May 2007, approximately 6 months before separation, cited the CI’s treatment records for the back.  No additional physical examination was documented.

A civilian PT range of motion (ROM) evaluation dated 2 July 2007 recorded isolated lumbar ROM of 30.7 degrees out of the normal lumbar ROM of 60 degrees.  A case management note dated 20 July 2007 indicated the CI reported LBP with radiating pain to the lower extremities (LE).  He reported he was obtaining pain relief with his medications and did not require a cane.  He was referred to pain management.  Physical therapy measured thoracolumbar (TL) ROM with a goniometer on 31 July 2007.  Forward flexion was 15 degrees, 13 degrees, and 20 degrees.  The CI was evaluated by pain management and epidural steroid injections were recommended.  At an evaluation by an orthopedic surgeon on 14 September 2007, the CI reported LBP which sometimes radiated to both LEs, with occasional N/T, worse on the right, with good pain control with his medications.  He denied bowel or bladder problems.  No additional surgery had been recommended by a neurosurgical consult.  The examiner noted the recent normal EMG and also reviewed recent MRI results which showed DDD of the thoracolumbar spine, with encroachment on the L4-5 and L5-S1 nerve roots, without direct impingement.  The physical examination showed a stiff gait with use of a cane.  Back ROM was reported as flexion of “lumbar spine “of 30 degrees and extension of 5 degrees with pain.  There was diffuse tenderness over the thoracic and lumbar spine and bilateral sacroiliac joints (SIJ), without tenderness to palpation (TTP) of the hips.  The CI could heel and toe walk without difficulty.  Strength was normal, sensation of the LLE was “diffusely” decreased compared with the right, and straight leg raise testing for radicular symptoms was negative.  No additional surgery was recommended, but the examiner recommended that the ESI might be helpful.  

Clinic notes in October 2007, 1 to 2 months before separation, indicated the CI had trigger point injections over the sacroiliac joint and he reported they “had greatly improved his condition,” he was able to walk up to 2 miles per day, was doing yoga for his back, and was not using a cane, but reported “some” numbness and tingling of both legs.  

There was no VA Compensation and Pension (C&P) examination within 12 months of separation.  The Initial VA C&P examination 12 August 2009, 21 months after separation, the CI reported his back was worse after surgery and he wished he never had surgery.  He reported left leg pain and weakness causing falls, with paresthesias.  He used a cane for ambulation.  He reported constant back pain with radiation to the LLE, decreased ROM, stiffness, spasm, and pain.  He reported flare-ups every two to three weeks lasting one to two days.  He reported incapacitating episodes during the flare-ups.  The examination noted a normal gait.  There was flattening of the lumbar spine, without tenderness, muscle spasm or guarding noted.  TL ROM was flexion of 20 degrees, reduced to 10 degrees with repetition.  There was painful motion noted.  Left LE muscle strength was diffusely decreased compared with the right and graded 2-3/5.  Sensation was decreased on the lateral aspect of the lower leg.  The knee was hyper-reflexic graded 4+ compared with 3+ on the right, the ankle reflex was normal and there was no pathological reflex noted, without radicular signs.  
The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 20%, coded 5243 (intervertebral disc syndrome), citing painful, limited motion, with muscle spasm and abnormal gait, with normal lower extremity electrodiagnostic studies.  The original VA Rating Decision did not service connect the back condition because the CI failed to attend a schedule C&P examination.  The next VARD in record dated 30 November 2011 indicated the VA rated the low back condition 40% coded analogously to 5235 (vertebral fracture or dislocation) with an effective date the day after the date of separation.  

There was evidence in the record of thoracolumbar ROM that was at times consistent with a 40% rating based on limitation of motion according to VASRD rating rules for the spine, but at other times consistent with 20% rating criteria.  The civilian PT evaluation in July 2007 clearly documented isolated lumbar ROM, but the isolated lumbar ROM was itself greater than 30 degrees.  Therefore, assuming any thoracic contribution to TL ROM, placed the CI’s combined TL flexion in the 20% rating criteria range.  At the Orthopedic evaluation in September 2007, flexion was 30 degrees, but it was not clearly documented whether this was thoracolumbar or ROM of the lumbar spine.  However, the CI then reported in October 2007 that SIJ injections and electrical stimulation treatments had “greatly improved his condition”.  He reported he did not need to use a cane, was walking up to two miles daily, and exercising.  The C&P examination was 21 months after separation, and therefore did not provide significant probative value for the Board’s rating recommendation of the disability due to the back condition at separation.  Based on the totality of evidence in record, the Board consensus was that the disability picture due to the low back condition was more closely approximated by the 20% rating criteria than the 40%.  There was no evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest prior to separation to warrant consideration of rating under the alternate VASRD formula (for IVDS).  At the C&P examination the CI did report incapacitating episodes, however, there was no evidence that bed rest was prescribed by a physician and the C&P was beyond the 12 month period specified by DoDI 6040.44 for special consideration of post-separation VA evidence in the Board’s rating recommendation.  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 compression fracture of L1 vertebra condition, coded 5235-5243.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI was treated for radiating pain with numbness and tingling of the bilateral lower extremities, however, the orthopedic examination 2 months before separation noted normal lower extremity strength, normal heel and toe walk, and clinical testing for signs of radiculopathy was negative.  Diffuse decreased sensation of the LLE was noted compared with the right but multiple EMG/NCV studies showed no evidence of a lumbar radiculopathy.  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.  Radiating is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates)” and there was no evidence in this case that motor weakness or sensory deficit 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.  

Bilateral Knees.  According to the STR and the MEB NARSUM, the CI was treated for bilateral knee pain and diagnosed with bilateral patellofemoral syndrome which did not resolve despite physical therapy.  At an orthopedic evaluation in February 2007, the CI reported increased swelling and pain of the knees.  Left knee X-rays showed degenerative joint disease, and right knee X-rays were normal.  The examination noted full ROM of the knees with tenderness and crepitus, greater on the left than the right.  There was a mildly positive test for meniscal pathology on the left knee but not the right.  The MEB forwarded “bilateral knee pain, patellofemoral syndrome, left knee degenerative joint disease, bilateral arthrosis” for PEB adjudication.  

Temporary profiles in record beginning in June 2004 noted knee pain.  A permanent L2 profile for bilateral patellofemoral syndrome was issued in April 2005.  The final permanent profile dated 30 April 2007 listed “knee pain”, with limitations of no running, no alternate APFT, and no high impact activities.  The commander’s statement dated 24 April 2007 noted only the low back condition and indicated the CI was unable to perform his duties due to the physical limitations of his permanent profile dated 20 March 2007, which was not in record.  

The MEB NARSUM examination on 24 May 2007, 6 months prior to separation, cited the orthopedic notes summarized above.  There was no additional physical examination performed.

Physical therapy measured ROM of the knees on 11 July 2007, 4 months before separation.  Right knee flexion was 132, 134, 137 (normal 140 degrees) and extension was 2, 0, 2 (normal 0 degrees) and left knee flexion was 132, 135, 137 degrees and extension was 2, 0, 3 degrees.  

There was no VA C&P examination within 12 months of separation as noted above.  There was no C&P examination in record which addressed the knee pain.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the chronic bilateral knee pain condition 0%, coded 5003 (degenerative arthritis.  The VA did not service connect either the right knee or the left knee conditions, citing “no diagnosis” for either knee and had not service connected either knee as of 31 October 2014, the most recent VARD in record.  The Board first considered if the both the left and right knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The bilateral knees were temporarily and permanently profiled and were addressed in the orthopedic treatment notes.  There was imaging evidence of arthritis of the left knee, but not the right and clinical findings were noted to be greater for the left knee than the right.  The Board could not find evidence in the commander’s statement or elsewhere in the STR that indicated any significant interference with the performance of duties due specifically to the left or right knee pain alone.  Therefore, the Board concluded that the preponderance of evidence showed neither the left knee nor the right knee condition would reasonably have caused the CI to be referred into the DES or be found unfit when considered individually.

The Board does not recommend that each knee condition was separately unfitting at separation and therefore a rating for the unfitting bilateral knee condition was considered under 5099-5003 as adjudicated by the PEB.  There was evidence of pathology of two major joints, without occasional incapacitating episodes.  Therefore the bilateral knee condition meets a 10% rating coded as 5099-5003 and no higher.  

After due deliberation, and considering all of the evidence, the Board recommends a single 10% rating for the bilateral knee condition, coded 5099-5003.  

Contended PEB Conditions:  MH Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended MH conditions of “Mood Disorder, NOS,” “Post-Traumatic Stress Disorder,” and “Attention Deficit Disorder, Hyperactivity Disorder” were not unfitting.  The PEB adjudicated the three MH conditions separately, however, only one rating for MH disability can be provided IAW VASRD §4.130 based on total social and occupational functioning, therefore all three MH conditions noted above are discussed together below, with the combined MH disability being referred to where appropriate as the “MH condition.” 

The PTSD condition was listed on the permanent profile.  The MH MEB NARSUM had noted that the CI had been prescribed a mood stabilizing medication in December 2006 and that although his impairment due to his MH conditions was mild, due to his medications his impairment for military duty was marked.  The commander’s statement noted the CI’s back condition impaired the performance of soldier activities and mentioned no MH conditions.  The commander further stated that at the CI’s current temporary duty assignment he had integrated himself well, was a team oriented member of the worksite, and showed a willingness to take on new tasks.  In accordance with DoDI 1332.38, adequate performance to the point of referral into the physical evaluation process supports a finding of fitness for duty, even if the condition may preclude continued military service.  There was no performance-based evidence from the record that the CI’s MH condition significantly interfered with satisfactory duty performance prior to the initiation of a MEB for his back and knee conditions.  Based on the evidence in record there was no other basis for a determination of unfitness due to the CI’s MH condition other than consideration of the Bipolar II diagnosis and attendant medication, which occurred on or after December 2006, when the MEB process was already underway.  Additionally, “Attention Deficit Disorder, Hyperactivity Disorder” is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the Board has no basis for recommending it as unfitting.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any MH condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the compression fracture of L1 vertebra condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral knee pain condition, the Board unanimously recommends a 10% rating, coded 5099-5003 IAW VASRD §4.71a.  In the matters of the contended mood disorder, NOS, Post-Traumatic Stress Disorder, and “Attention Deficit Disorder, Hyperactivity Disorder” conditions, the Board unanimously or majority 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 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 his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Compression Fracture L1 Vertebrae 	5235-5243	20%	
Chronic Bilateral Knee Pain	5099-5003	10%	
COMBINED RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140707, w/atchs
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 XXXXXXXXXXXXXXXXXX, AR20160013333 (PD201404273)

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