RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01157
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080630

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E5, Track Vehicle Mechanic, medically separated for “bilateral knee pain” and “chronic low back pain,” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  “Review all conditions.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination 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(s) at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The panel 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 - 20080402	VARD - 20140417	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5003	10%	Degenerative Joint Disease, Right Knee	5055	30%	20140117	
Chronic Low Back Pain	5237	10%	Lumbar Degenerative Disc and Joint Disease	5243	10%	20140117	
Anxiety Disorder	Not Unfitting	Major Depressive Disorder (MDD) 	9434	70%	20140121	
Hypothyroidism		No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent right knee surgery in December 2002 for a torn meniscus, followed by left knee surgery in September 2003 for a torn meniscus.  

Duty limitations were recommended by Army permanent L3 profile dated 1 October 2007, which included the specified medical conditions of “chronic low back pain” and “bilateral knee pain.”  The commander’s statement dated 10 October 2007 specified “severe back pain” as the only named duty-limiting condition, and also mentioned walking with a cane and “cannot be on her feet for any length of time.”  There were no records of treatment of any knee condition proximate to separation other than the MEB orthopedic examination in available evidence.  

The 10 March 2008 MEB physical examination, 4 months prior to separation (completed by an orthopedic specialist), noted complaints of bilateral knee pain, worse on the right than the left.  The CI rated her right knee pain at 7-10/10 in severity, with reports of swelling, locking, and give-way, while milder left knee pain was rated as 5-7/10 with weather affecting the pain level.  She reported that she “uses a cane in the hand opposite her more symptomatic knee,” but did not use one on the day of this appointment.  Physical examination revealed a stiff but symmetric gait.  There was no inflammation or fluid buildup in the knees.  There was normal tracking of the kneecaps, and negative testing for laxity or ligamentous and kneecap instability.  Testing for meniscal damage (McMurray’s test) was also negative, but manipulation of her knees revealed pain, especially on the left knee.  ROM was recorded as 0-120 degrees on the left and 0-125 degrees on the right (0-140 normal), with no additional loss of motion due to pain, weakness, flare-ups, fatigability or incoordination.  The orthopedic surgeon diagnosed “osteoarthritis, both knees primarily affecting medial compartments, medically not acceptable” and indicated that the CI was a potential candidate for knee surgery at some point; however, surgery would be unlikely to allow the CI to become fit for duty.  

The PEB indicated that there was radiographic evidence of marked narrowing of the medial joint space bilaterally with near obliteration of the medial joint spaces (more pronounced on the right).  

There was no VA Compensation & Pension examination performed proximate to separation.  

The panel next directed attention to a rating recommendation based on the above evidence.  The PEB combined the right and left knee conditions under a single service disability rating, coded 5003 (degenerative arthritis) and rated 10%, citing abnormal radiographic studies of the knees with ROM limitations not independently ratable, and no functional loss due to pain, flare-ups or fatigue:  “Rated for arthritis two major joints.”  

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 panel 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 panel’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 panel 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 panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  

The NARSUM examination was closest to the date of separation and had the highest probative value for rating at separation.  There were no other knee examinations in the STR proximate to separation.  

Directing attention to its recommendations based on the above evidence, the panel first considered whether the individual knee conditions met the panel’s threshold for separate rating as elaborated above.  In this case, bilateral knee pain was profiled, the osteoarthritis of both knees were judged to fail retention standards and although the commander’s statement did not specifically mention the knees, but addressed walking with a cane which was noted in the orthopedic NARSUM to be due to knee pain.  Both knees had prior meniscal surgery, clinical diagnoses of osteoarthritis with abnormal radiographs (more pronounced on the right) and both knees were symptomatic with the right knee greater than the left.  There was scant information which would permit the panel to discriminate the performance limitations attributable to either knee over the other.  

Based on the above evidence, the panel majority adjudged there was a questionable basis for arguing that the individual knee conditions were separately unfitting at separation.  The well-established principle for fitness determinations is that they are performance-based.  The panel majority could not find evidence in the commander’s statement or elsewhere in the STR that documented any significant interference of individual knee impairment with the performance of duties at the time of separation, nor were there any physical findings documented by the MEB examiners which would logically be associated with significant disability.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral knee pain condition.  

Chronic Low Back Pain.  According to the STR and MEB NARSUM, the CI’s back condition began as early as April 1994, and was exacerbated in 1995 after heavy lifting.  Radiographic studies in July 2007showed slippage of the vertebrae (listhesis) in the lumbar spine.  

During the 10 March 2008 MEB examination, 4 months prior to separation, physical examination showed a stiff but symmetric gait, with ROM recorded as initial flexion of 40 degrees with 80 degrees after repetition (normal 90) and combined ROM at 230 (normal 240) after repetition.  There was no additional loss of motion due to pain, weakness, flare-ups, fatigability, or incoordination.  Neurologic examination was normal, and provocative testing for nerve root impingement was negative.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back pain 10%, coded 5237 (lumbosacral strain), citing limitation of motion of flexion 80 degrees and combined 255 after repetition.  

The NARSUM examination was closest to the date of separation and had the highest probative value for rating at separation.  There were scant other back examinations in the STR proximate to separation.  The panel 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 combined ROM (greater than 120 degrees but not greater than 235 degrees) reported on the MEB examination.  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.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic low back pain condition.  

Contended PEB Conditions:  Anxiety Disorder and Hypothyroidism.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The anxiety disorder was profiled and was judged to fail retention standards, but was not implicated in the commander’s comments.  The psychiatrist’s evaluation indicated symptom exacerbations were long-standing from 2002 and the CI “would not likely tolerate the stress of deployment.”  However, the panel found no impact on duty performance from any mental health condition reflected in evaluation reports in the record.  The hypothyroid condition was not profiled or implicated in the commander’s statement and was judged to not fail retention standards.  There was no performance-based evidence from the record that these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was not a preponderance of evidence sufficient to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the bilateral knee pain condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  In the matter of the chronic low back pain condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended anxiety disorder and hypothyroid conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  The single voter for dissent recommended re-characterization and submitted the appended minority opinion.  There were no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification and no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150609, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

MINORITY OPINION
NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01157

MINORITY OPINION:  The minority voter strongly supports the position that each knee was reasonably separately unfitting and ratable at 10% for each knee.  

The profile’s multiple activity restriction for back pain and bilateral knee pain, NARSUM history and clinical findings for both knees, and MEB adjudication of “osteoarthritis both knees” not meeting retention standards supported bilateral knee impairment interfering with duty requirements, as did the commander’s statement regarding the CI’s use of a cane which the NARSUM clearly attributed to knee pain.  There was a paucity of STR notes regarding either knee (or for any condition); however, the CI was a Guardsman, and scarce STRs are very common.  The NARSUM, performed by an orthopedic surgeon, clearly documented that each knee had prior meniscal surgery of each knee.  There was scant information which would rationally discriminate the performance limitations attributable to either the left knee over the right knee or to attribute all of the CI’s duty limiting impairments solely to the back condition.  

The orthopedic surgeon clearly indicated that the bilateral knee osteoarthritis did not meet retention standards.  The NARSUM documented slight limitation of motion for each knee with painful manipulation and osteoarthritis of each knee, as well as a stiff gait and history including persistent significant knee symptoms which would very reasonably interfere with duty performance, and aligned with the significant profile limitations and commander’s statement.  There was therefore not a preponderance of evidence to indicate that either knee condition would not cause the member to be referred into the DES or be found unfit because of physical disability and each knee was therefore reasonably unfitting.  

Regarding rating of each knee, both knees had prior meniscal surgery, clinical diagnoses of osteoarthritis with abnormal radiographs (more pronounced on the right) and both knees were symptomatic with the right knee greater than the left.  Given the history of meniscal surgery for each knee, and that each knee was painful and symptomatic, analogous 5259 coding (cartilage, semilunar, removal of, symptomatic) was applicable in this case, and provided an alternate route to a 10% rating for each knee.  

In the matter of the bilateral knee pain condition, the minority recommends that each joint be separately adjudicated as follows:  an unfitting right knee pain and an unfitting left knee pain condition (IAW DoDI 1332.38 and 6040.44) and each coded 5003-5259 (degenerative arthritis and semilunar cartilage) and rated 10%; both IAW VASRD §4.71a.  

The Secretary is respectfully urged to consider the minority recommendation 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	
Bilateral Knee Pain…	Right	5003-5259	10%	
	Left	5003-5259	10%	
Chronic LBP…	5237	10%	
COMBINED	30%	

AR20170012850, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and by majority vote recommended no recharacterization or modification of your disability rating.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion.  I reject the Board’s recommendation and I accept the Board’s minority opinion to recharacterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation, minority opinion and record of proceedings for your information.

	The recharacterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO) XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the counsel you listed on your application.

Sincerely,

Enclosure