RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00080
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070410

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Military Police, medically separated for “chronic back pain, due to lumbar spondylosis” with a disability rating of 10%.  

CI CONTENTION:  The CI asserts that his knees were not rated by the service although they were rated by the Veterans Administration directly after his discharge.  He also contends his back condition should have been rated higher by the service.  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 - 20070126	VARD - 20070822  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5237	10%	Degenerative Joint Disease, Lumbar Spine	5010	10%	20070514	
Arthritis Knees, Chondromalacia	Not Unfitting	Degenerative Joint Disease, Left Knee	5010	10%	20070514	
		Degenerative Joint Disease, Right Knee…	5010	10%	20070514	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chronic Back Pain, due to Lumbar Spondylosis Condition.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began after undergoing spinal anesthesia for a knee arthroscopy in January 2006.  Radiographic evaluation (MRI) in April 2006 documented facet arthritis and minimal disc bulge at L4-L5 and L5-S1 vertebral levels with no evidence of impingement on the spinal cord.  At three separate visits to physical therapy and physical medicine in June and August 2006 (10 and 8 months prior to separation), the CI’s gait was described as “cautious,” and “slow and guarded.”  At 2 separate visits with the pain management clinic in August and September 2006 (8 and 7 months prior to separation), the physical examination showed normal forward flexion without evidence of painful motion.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “lumbar spondylosis with lumbago, L5-S1 disc bulge and facet arthropathy, L3-L4 annular tears, myelopathy intermittent” for PEB adjudication.  

The MEB NARSUM examination was performed on 27 December 2006 (3 months prior to separation).  The CI reported chronic pain, spasm, tightness, and intermittent radiation down the bilateral legs, exacerbated by running, standing for 45 minutes, biking, or exercising on the elliptical machine.  The physical examination showed paravertebral spasm from L2-S1, flexion to 60 degrees, extension to 20 degrees and normal bilateral flexion and rotation, with no evidence of radiation.  At a physical therapy visit in January 2007 (3 months prior to separation), thoracolumbar flexion was to 60 degrees.  Painful motion, gait, and spinal contour were not addressed.  Electrophysiologic studies in January 2007 showed no evidence of radiculopathy or peripheral neuropathy.  In March 2007, the pain management service performed nerve blocks of the facet joints with some relief.  

At the VA Compensation and Pension (C&P) examination dated 14 May 2007 (1 month after separation), the CI reported that the back pain was severe and constant and “progressively worse,” with radiation down the bilateral legs.  The physical examination showed a normal posture, normal gait and spinal contour, with lumbar tenderness, spasm, and nonspecific weakness.  There was painful motion with extension to 25 degrees, and evidence of radiculopathy on the right; however, no pain with flexion to 90 degrees and no evidence of guarding.  Strength, sensation, and reflex testing was normal.  

The Board directed attention to the rating recommendation based on the above evidence.  The PEB rated 10% for the “chronic back pain, due to lumbar spondylosis,” analogously coded 5299-5237 (lumbosacral strain), and citing limitations from pain and spasm with no evidence of radiculopathy.  The VA also rated 10% for the “degenerative joint disease, lumbar spine,” coded 5010 (arthritis, degenerative), and citing painful motion, and no evidence of spasm, tenderness or guarding severe enough to result in abnormal gait or spinal contour.  

The Board considered the descriptions and measurements listed at the three separate examinations in December 2006 (NARSUM), and January (physical therapy) 2007 in comparison to the May 2007 VA C&P examination.  There was pre-separation documentation of flexion to 60 degrees at the December 2006 NARSUM and the January 2007 physical therapy visits that would support a rating of 20% under analogous code 5299/5010-5237 (arthritis, degenerative; lumbosacral strain).  The examinations included measurements made during and after repetition and corroborated each other’s findings of flexion to 60 degrees.  Therefore, these examinations were adjudged to be more accurate in describing the CI’s disability at the time of separation.  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).  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 condition.  

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The CI had a bulging discs and symptoms of radiating pain documented in the treatment records.  An electro-diagnostic study showed no evidence of neuropathy or 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.  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.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the “arthritis knees, chondromalacia” was not unfitting.  The bilateral knee condition was profiled and implicated in the commander’s statement.  It was forwarded by the MEB as medically acceptable.  The NARSUM examiner stated that the “knees do bother some, but he has not been able to run so as to test the knee post-surgery, and does not know how much it might bother if full activity resumed.”  He further stated that the CI had some limitation with this knees, which included inability to run and jump, “however he has not been able to fully rehabilitate the knee post op die to the back pain.”  He noted the bilateral knee condition as medically acceptable.  The condition was not judged to fail retention standards by the PEB.  

The profile dated 27 December 2006 listed the “chondromalacia, arthritic knees, right worse than left” as an L2 profile, limiting the 2 mile run and all alternate aerobic events, and prohibited prolonged standing greater than 20 min.  The profile did allow walking, biking, or swimming at own pace and distance.  The commander’s statement, dated 16 January 2007, included the bilateral knee condition as preventing the CI from performing his 31B (basic military police) duties, meeting the Service’s basic fitness standards, and the ability to stand or sit for prolonged periods of time.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that the bilateral knee condition 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 bilateral knee conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS: In the matter of the low back condition, the Board unanimously recommends a disability rating of 20%, coded 5010-5237 IAW VASRD §4.71a.  In the matter of the contended bilateral knee 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease 	5010-5237	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150121, 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 XXXXXXXXXXXXXXXXXXXXX, AR20160018844 (PD201500080)

1.  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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization of the individual’s separation.  This decision is final.  

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.   

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:

CF: 
(  ) DoD PDBR
(  ) DVA