RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00178
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050506

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Military Police, medically separated for “chronic non radiating low back pain” and “chronic lower extremity pain affecting both knees and both ankles,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  The CI contends that he was giving a higher rating from the VA for his 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 on 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 - 20050405	VARD - 20051129	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Non Radiating Low Back Pain	5242	10%	Degenerative Joint Disease (DJD) of the Lumbar Spine	5242	20%	20051003	
Chronic Lower Extremity Pain Affecting Both Knees and Both Ankles	5003	10%	DJD of the Left Ankle	5010-5271	20%	20051003	
			DJD of the Right Ankle	5010-5271	20%	20051003	
			DJD of the Left Knee	5003-5261	10%	20051003	
			DJD of the Right Knee	5003-5261	10%	20051003	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Non Radiating 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 July 2003 after falling into a well while deployed to Iraq.  Radiographic (X-ray) studies on 27 April 2004 showed degenerative joint disease (DJD) with osteophyte formation at L3.  Magnetic resonance imaging (MRI) studies on 8 December 2004 showed spondylitis changes and a broad-base disk bulge at L4-5 without encroachment.  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 “degenerative joint disease lumbar spine” for PEB adjudication.  

At the time of the physical therapy (PT) clinic appointment on 11 May 2004 (12 months prior to separation), the CI reported a 2-week history of pain after long periods of sitting, and the pain radiated to both thighs.  On examination, range of motion (ROM) recorded a forward flexion of 60%; all other measurement were otherwise normal.  

The MEB NARSUM examination on 24 November 2004 (5 months prior to separation) noted complaints of low back pain.  Physical examination showed tenderness in the L3 region on palpation with some straightening of lordosis.  There was decreased pinprick sensation L5 dermatome between the great toe and the 2nd toe right foot.  The CI was able to toe-to-heel walk.  Straight leg raise test was positive on the right side for radicular symptoms.  ROM measurements showed a forward flexion of 75 degrees (90 degrees normal) and a combined ROM of 200 degrees (240 degrees normal).  

At the 3 October 2005 VA Compensation and Pension (C&P) evaluation, performed 5 months after separation, the CI reported back pain that prevented him from doing usual activities.  Physical examination showed an antalgic gait and normal posture.  There was with moderate lumbar flattening and muscle spasm which the examiner indicated was not severe enough to be responsible for abnormal gait or abnormal spinal contour.  There was no muscle weakness, and straight leg raise testing was negative.  ROM measurements showed a forward flexion of 50 degrees and a combined ROM of 155 degrees.  After repetitive motion testing, forward flexion was decreased to 40 degrees.  Strength, reflex and sensory examinations of the lower extremities were normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain condition 10%, coded 5242 (degenerative arthritis of the spine), citing forward flexion of 80 degrees and tenderness.  The VA rated the chronic low back pain condition 20% coded 5242, based on the VA C&P examination 5 months after separation, citing limitation of forward flexion.  

The Board placed the highest probative value for rating on the NARSUM and MEB PT examinations prior to separation, as well as the Formal PEB disability description.  The post-separation VA examination was adjudged as post-separation worsening.  The Board 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/or combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the MEB PT and NARSUM examinations proximate to separation.  Although there was “some straightening of lordosis,” this was not adjudged as sufficient to indicate an abnormal spinal contour, and no antalgic gait was attributed to the back condition, 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.  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 chronic low back pain condition.  

Chronic Lower Extremity Pain Affecting Both Knees and Both Ankles.  The PEB combined the bilateral knees and bilateral ankles conditions as a single unfitting condition coded 5003 and rated 10%, citing “rated for 2 or more joints with radiographic evidence of degenerative joint disease.”  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 disability evaluation system 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 bilateral knee and bilateral ankle conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

     Chronic Bilateral Knee Pain.  According to STRs and the MEB NARSUM, the CI’s bilateral knee pain appeared to begin in 1998 with right knee hyperextension, bilateral knee hyperextension injury in 2000 and worsening of bilateral knee pain following his right ankle surgery in 2003.  Radiographs documented bilateral degenerative changes and with left medial epicondyle spurring likely secondary to remote injury.  At the physical therapy examination on 7 September 2004 (8 months prior to separation), the CI complained of bilateral knee pain along with pain and swelling when walking, using stairs, doing knee bends, and almost all activities.  On examination, gait was non-antalgic, but slightly altered.  The CI had difficulty arising from a squat and pain with resisted quadriceps movement.  There was bilateral tenderness and positive patellar grind.  There was mild left medial collateral ligament laxity, with “full active ROM.”  The diagnosis was bilateral retropatellar pain syndrome with DJD.  

There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “bilateral knee degenerative joint disease” for PEB adjudication.  

At the NARSUM examination on 24 November 2004 (5 months prior to separation), the CI reported bilateral knee pain.  The physical examination showed crepitus, joint grinding, and inability to fully extend.  On the left knee there was noted some laxity of the lateral collateral.  There was apprehension sign and joint effusion, no erythema or induration, positive McMurray’s test (grinding with pain), and Lachman’s test was negative bilaterally.  Right knee flexion was 125 degrees (normal 140 degrees) and extension was 0 degrees (normal 0 degrees) and the left knee flexion was 135 degrees and extension was 0 degrees. (Note:  There was no specific mention of painful, or painless ROM or rationale for limitation of flexion, however, passive flexion measurements were noted to be approximately 10 degrees greater than active flexion measurements for each knee.)  A NARSUM addendum dated 29 March 2005 indicated that new ankle and knee PT ROMs were accomplished on 17 March 2005 “and were quite similar to the findings of 18 November 2004;” however, those ROMs were not in evidence.  

At the 3 October 2005 VA C&P evaluation, performed 5 months after separation, the CI reported both knees as unstable, locking, painful, left more than right, and intermittent wear of a soft brace.  The CI reported a fall in July 2003 with the left knee “dislocating” and treatment with crutches and a splint which exacerbated both knees hurting.  Physical examination showed a wide based antalgic gait with right step shorter than left.  ROM measurements were right knee, flexion of 125 degrees and extension of 2 degrees and left knee flexion of 120 degrees and extension of 2 degrees with increased pain on ROM testing bilaterally and crepitus on the right knee ROM.  There was no instability or weakness of either knee.  

The Board directed attention to its fitness and rating recommendation based on the above evidence.  The PEB rated the left and right knee conditions along with the bilateral ankle condition at 10%, coded 5003 (arthritis, degenerative) as discussed above.  The VA rated each knee at 10% under the 5003-5261 code (arthritis, degenerative-leg, limitation of extension) citing painful motion of a major joint and arthritis for each knee (plus crepitus for the right knee).  

Bilateral knee pain was profiled, implicated in the commander’s statement and adjudged to fail retention standards.  The commander’s statement, profile, MEB, and other STR evidence did not provide any information which would permit the Board to discriminate the performance limitations attributable to either knee joint over the other.  Since undue speculation would be required to conclude that impairment from either knee joint would not have unacceptably interfered with MOS performance, members agreed that each knee was reasonably justified as separately unfitting.  

Board members considered that the objective findings and associated disability for each knee were essentially identical, and agreed that the respective ratings should therefore be the same.  A bilateral 10% rating under the provisions of 5003 was considered; however, the Board concluded that there was sufficient evidence of painful motion or limited motion and functional loss to support a 10% rating for each knee (based on §4.59, §4.40 and §4.45).  In considering routes to a higher rating however, there was no limitation of motion which attains a minimum rating under the diagnostic codes for limitation of flexion (5260) or extension (5261).  The examinations proximate to separation did not demonstrate the presence of consistent 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).  

In the matter of the bilateral knee condition, the Board unanimously recommends that each knee joint be separately adjudicated as follows:  an unfitting right knee condition coded 5003-5261 and rated 10%, and an unfitting left knee condition, coded 5003-5261 and rated 10%, both IAW VASRD §4.71a.  

Chronic Bilateral Ankle Pain.  According to STRs and the MEB NARSUM, the CI had a right ankle fracture in 1998 and right ankle surgery in November 2003 for instability.  X-rays of the right ankle showed degenerative changes without acute changes.  

At the NARSUM examination on 24 November 2004 (5 months prior to separation), the CI reported bilateral ankle pain.  The physical examination of the right ankle showed edema and varicosities, with no erythema or induration.  There was a positive drawer sign and lateral laxity with grinding sensation felt in excess to the left ankle on examination.  Bilateral ankle dorsiflexion was 5 degrees (normal 20 degrees) and planter flexion was 50 degrees (normal 45 degrees).  As noted above, new ankle PT ROMs were reported as accomplished on 17 March 2005 “and were quite similar to the findings of 18 November 2004;” however, those ROMs were not in evidence.  The NARSUM addendum dated 29 March 2005 also recommended changing the original MEB diagnosis of “degenerative joint disease, instability right ankle” to “bilateral ankle pain with degenerative joint disease.”  

At the 3 October 2005 VA Compensation and Pension (C&P) evaluation, performed 5 months after separation, the CI reported bilateral ankle injury in 2003 with right ankle instability on rough terrain, popping and pain; and, left ankle pain during cold weather; however with no instability.  Radiographs were reported as showing bilateral ankle degenerative changes.  Physical examination showed an antalgic gate with ROM measurements right ankle, dorsiflexion of 5 degrees and plantar flexion of 40 degrees and left ankle dorsiflexion of 10 degrees and plantar flexion of 60 degrees.  The right ankle had decreased motor strength of 3+/5 and a well healed and non-tender surgical scar.  

The Board directed attention to its fitness and rating recommendation based on the above evidence.  The PEB rated the left and right ankle conditions (along with the bilateral knee condition) at 10%, coded 5003 (arthritis, degenerative) as discussed above.  The VA rated each ankle at 20% under the 5010-5271 code (arthritis due to trauma-ankle, limited motion) citing marked limited motion of the ankle, arthritis, pain and instability.  

The right ankle instability was clearly unfitting.  The left ankle pain was added to the MEB evidence, considered not to meet retentions standards, and there was not a preponderance of evidence in the record to conclude that it was not separately unfitting and ratable.  

Board members considered that the objective findings and associated disability for each ankle were similar, and agreed with the PEB and the VA that the respective ratings should therefore be the same.  A bilateral 10% rating under the provisions of 5003 was considered; however, the Board concluded that there was sufficient evidence of painful motion or limited motion and functional loss to support a 10% rating for each ankle (based on §4.59, §4.40 and §4.45).  In considering routes to a higher rating however, the Board deliberated if the consistent 5 degrees of ankle dorsiflexion with plantar flexion either above normal or near normal VASRD limits was considered either a “moderate” (10%) or “marked” (20%) limitation under code 5271 (limitation of motion).  The Board adjudged that the CI’s ankle limitations were closer to the “moderate” limitation (10%).  The Board considered alternative VASRD ankle and analogous codes, but all were less applicable and not advantageous to rating.  

In the matter of the bilateral ankle condition, the Board unanimously recommends that each ankle joint be separately adjudicated as follows:  an unfitting right ankle condition coded 5010-5271 and rated 10%, and an unfitting left ankle condition, coded 5003-5271 and rated 10%, both IAW VASRD §4.71a.  

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 chronic lower extremity pain affecting both knees and both ankles condition, the Board unanimously recommends that each knee and each ankle joint be separately adjudicated as follows:  an unfitting right knee condition coded 5003-5261 and rated 10%; an unfitting left knee condition, coded 5003-5261 and rated 10%; an unfitting right ankle condition coded 5010-5271 and rated 10%; and an unfitting left ankle condition, coded 5003-5271 and rated 10%, all 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 Non Radiating Low Back Pain	5242	10%	
Chronic Lower Extremity Pain Affecting Both Knees and Both Ankles	Left Knee	5003-5261	10%	
	Right Knee	5003-5261	10%	
	Left Ankle	5003-5271	10%	
	Right Ankle	5010-5271	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150223, 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 XXXXXXXXXXXXXXXXXX, AR20160013338 (PD201500178)

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 40% 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 40% 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