RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00702
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050324

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Ammunition Specialist, medically separated for “chronic thoracolumbar back pain,” “painful right shoulder” and “chronic bilateral knee pain,” rated 10%, 10%, and 0%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI requests the Board 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 - 20050308	VARD - 20050622	
Condition	Code	Rating	Condition	Code	Rating	Examination	
Chronic Thoracolumbar Back Pain	5243	10%	Thoracolumbar Strain with DDD with Episodic Sensory Radiculitis	5243	10%	20050622	
Painful Right Shoulder	5099-5003	10%	Right Shoulder Strain	5201	0%	20050622	
Chronic Bilateral Knee Pain	5003	0%	Right Knee Strain with Degenerative Changes Status Post MCL Injury	5260	0%	20050622	
			Disability of the Left Knee	5261	NSC	20050622	
Chronic Neck Pain	Not Unfitting	Cervical Strain	5237	10%	20050622	
Hypertension	Not Unfitting	Hypertension	7101	NSC	20050622	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Thoracolumbar Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in 1996 without any specific injury or trauma.  The 20 May 2004 lumbar spine magnetic resonance imaging (MRI) study revealed a small right L4-5 disk protrusion, and a right L5-S1 intra-foraminal disk extrusion, that compressed the right L5 nerve root.  The 5 November 2004 electrodiagnostic studies were normal and showed no evidence of active or chronic denervation.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “chronic midback pain” and “chronic lower back pain with herniated nucleus pulposus (ruptured disk) at L4-L5 and L5-S1” for PEB adjudication.  During the 30 September 2004 MEB examination (recorded on the NARSUM and DD Forms 2807 and 2808), 6 months prior to separation, the CI reported constant back pain with varying degrees of severity and intermittent loss of sensation and control that made it hard for him to walk sometimes.  The physical examination documented a normal gait.  The spine examination revealed L5 tenderness and full range of motion (ROM).  There was little to no pain with forward flexion.  The examination was silent regarding other planes of motion.  Examination tests for radicular symptoms were negative.  On 27 October 2004, physical therapy (PT) measured repetitive (X3) ROM with a goniometer for the MEB.  Pain-limited thoracolumbar ROM values in degrees were flexion of 90/90/95 (90 normal), extension of 5/5/5 (30 normal), right lateral flexion of 30/30/30 (30 normal), left lateral flexion of 20/20/25 (30 normal), right rotation of 25/25/30 (30 normal), left rotation of 50/50/50 (30 normal), and combined of 210 (240 normal).  At the 5 November 2004 physical medicine encounter, 5 months prior to separation, the CI reported intermittent numbness and tingling radiating down the right leg to the calf region.  On examination the CI could forward flex and touch his ankles, but this caused sciatic type symptoms that went down to the calf region.  The examiner also noted that the CI had near normal extension, but this plane of motion was painful.  Examination tests for radicular signs were negative and strength, sensation, and deep tendon reflexes (DTRs) were normal.  

The 22 June 2005 VA Compensation and Pension (C&P) examination, 3 months after separation, documented the CI “reports radicular symptomatology which includes an aching sensation in the right posterior leg going down to the foot.”  He denied loss of bowel or bladder control.  The examiner recorded that the CI had missed approximately 20 days of work in the past year because of aggravation of low back pain.  The physical examination documented an “essentially normal gait.”  The spine examination revealed minor tenderness, normal curvature, and no muscle spasms.  Thoracolumbar spine ROM values were flexion of 90 (90), extension of 30 (30), bilateral lateral flexion of 30 (30), bilateral rotation of 30 (30), and combined of 240 (240) degrees.  There was mild discomfort with extension and no pain, or significant change in ROM, with repetitive (X5) ROM.  The neurological examination of the upper and lower extremities was “essentially unremarkable.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), citing “rated for tenderness.”  The VA also rated the back condition 10% coded 5243, based on the VA C&P examination 3 months after separation, citing “localized tenderness.”  The Board agreed that a 10% rating, but no higher, was justified for limitation of combined ROM greater than 120 degrees but not greater than 235 degrees reported on the PT examination proximate to separation.  A 10% rating was also justified for the presence of painful motion and/or tenderness noted on all of the examinations proximate to separation.  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.  Although the C&P examination indicated that the CI missed approximately 20 days of work in the last year, there was no corroborating evidence in the  STR that showed the CI’s IVDS resulted in incapacitating episodes requiring physician-prescribed bed rest 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 had a herniated disk and there were symptoms of radiating pain documented in the treatment records; however, examinations indicated normal strength, DTRs, and gait, and the sensory changes did not affect his job.  Electrodiagnostic studies showed no evidence of neuropathy or radiculopathy.  

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 concluded that there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Painful Right Shoulder.  According to STRs and the MEB NARSUM, the CI injured his right (dominant) shoulder in 1994 while participating in physical training.  Radiographic studies were negative for degenerative disease.  Despite treatment, the right shoulder 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 “chronic right shoulder pain with limited range of motion” for PEB adjudication.  At the 20 August 2004 medical encounter, the CI complained of constant 5-9/10 right shoulder pain with intermittent right upper extremity numbness.  The right shoulder examination revealed tenderness inferior to the acromion process.  Active ROM was within normal limits with pain at the end range of flexion, external rotation, and internal rotation.  The Hawkin’s (assesses for subacromial impingement) test was positive and strength was normal.  During the MEB examination the CI reported that he had difficulty putting his right arm behind his back or above his head and felt like “there [was] something wedged in it.”  Physical examination showed tenderness and a positive scratch movements) test.  On 27 October 2004, PT measured repetitive (X3) ROM with a goniometer for the MEB.  Pain-limited right shoulder ROM values in degrees were flexion of 150/150/150 (180 normal) and abduction of 115/115/115 (180 normal).  At the VA C&P examination the CI complained of pain when lifting his elbow above his shoulder.  The right shoulder examination revealed mild tenderness in the acromioclavicular (AC) joint.  Repetitive (X5) and pain-limited right shoulder average ROM values in degrees were flexion of 150 (180 normal) and abduction of 150 (180 normal).  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis), citing pain and limitation of motion.  The VA also assigned a 10% rating using the 5201 code (arm limitation of motion) for painful motion not limited at shoulder level.  The VASRD §4.71a threshold for rating for ROM impairment (code 5201, arm limitation of motion) is “at shoulder level” (approximately 90 degrees from the side), and the examinations in evidence demonstrated motion above this level.  Although there was insufficient limitation of motion to support a rating under the 5201 code, Board members agreed that a 10% rating was justified with application of VASRD §4.59 (painful motion).  There was no malunion or recurrent dislocation of the humerus to justify a rating under the 5202 code (humerus, other impairment of); and no nonunion with loose movement of the clavicle to warrant the next higher 20% rating under the 5203 code (clavicle or scapula, impairment of).  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 right shoulder condition.  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions as a single unfitting condition coded 5003 and rated 0%.  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 is presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to STRs and the MEB NARSUM, the CI’s right knee condition began in 1992 while performing physical training.  The CI’s left knee condition began in 1996 with no mention of trauma or injury.  Radiographic studies showed posttraumatic heterotopic ossification at the site of old medial collateral ligament injury in the right knee, but were negative for left knee pathology.  Despite treatment, the bilateral knee conditions 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 “chronic bilateral knee pain” for PEB adjudication.  During the MEB examination the CI reported that he had intermittent burning pain in his right knee and intermittent and throbbing pain in his left knee.  The CI stated that he was unable to perform his duties due to his bilateral knee pain.  Physical examination showed a normal evaluation for his lower extremities.  According to the commander’s statement dated 19 October 2004, the CI could not perform various tasks associated with his specialty of ammunition handler because it required the CI to squat and lift.  Duty limitations were recommended by Army profile, dated 21 January 2005, including no running, jumping, crawling, climbing, squatting, wearing backpack, wearing load bearing equipment or wearing body armor.  At the VA C&P examination the CI reported “bilateral knee discomfort” with no swelling or feelings of instability.  The examinationiner noted that the CI’s usual occupation and daily activities were not significantly affected by his bilateral knee conditions.  The bilateral knee ROM following repetitive (X5) movement was flexion in degrees of 140 (140 normal) and extension of 0 (normal) degrees.  He had a normal gait without soft tissue swelling, point tenderness, or effusion in either knee.  There was no ligamentous instability in either knee.

The Board directed attention to its rating recommendation based on the above evidence.  The Board first considered if the right and left knee conditions, having been de-coupled from each other, were separately unfitting.  The PEB rated the bilateral knee condition at 0%, coded 5003, citing normal ROM.  The VA rated the right knee condition 0%, coded 5260 (leg, limitation of flexion), citing “X-ray evidence of degenerative changes.”  The VA did not rate the left knee condition, but instead indicated that it was not service connected.  There was no limitation of motion for either knee which attained a minimum rating under the diagnostic codes for limitation of flexion or extension (5260, 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 for either knee.  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 either knee.  No additional functional limitation was evidenced by the examinations for either knee.  Members debated if 0% was warranted for the bilateral knees, or if application of §4.40 (functional loss) or §4.59 (painful motion) justified a 10% ratings.  The Board agreed a 10% rating was supported based on VASRD §4.40 or §4.59.  Members carefully considered the option of rating both knees together, noting that the VA did not service-connect the left knee.  The Board concluded that the evidence did not provide sufficient grounds for recommending separate knee disability ratings in this case, and that a bilateral rating of 10%, coded 5099-5003, is a good analogy to both the pathology and disability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the bilateral knee condition.  

Contended PEB Conditions:  Hypertension and chronic neck pain.  The Board’s main charge is to assess the fairness of the PEB’s determination that the conditions were not unfitting.  The hypertension was not profiled and neither condition was implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the right shoulder 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 or majority recommends a disability rating of 10% coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended neck condition, the Board unanimously or majority agrees that it cannot recommend it for additional disability rating.  In the matter of the contended hypertension, the Board unanimously or majority agrees that it cannot recommend it for additional disability rating.  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 Thoracolumbar Back Pain	5243	10%	
Painful Right Shoulder	5099-5003	10%	
Chronic Bilateral Knee Pain	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150602, with attachments
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 
XXXXXXXXXXXXXXXXXX, AR20170000256  (PD201500702)

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