RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01483
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20020420

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Quartermaster and Chemical Equipment Repairer, medically separated for “pain in left knee and back,” with a disability rating of 10%.

CI CONTENTION:  “Residual pain in left knee post-surgery, post-surgery arthritis in right shoulder, severe pain in lumbar region, arthritis in right elbow.  When I filed my initial claim with the VA, I started at 10%.  Within 6 months, I was increased to 40%, based on the extent of my conditions.”  These conditions were excluded in rating decision.  The CI’s 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 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 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 - 20020213	VARD - 20040510	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Pain in Left Knee and Back	5099-5003	10%	Residuals of Left Knee Cap Fracture	5010-5260	10%	20040309	
			Lumbosacral Strain	5295	10%	20040309	
Intermittent Right Shoulder Pain	Not Unfitting 	Post-Operative Residuals of Right Shoulder Dislocation	5201	20%	20040420	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Left Knee Pain.  The PEB combined the left knee and back pain conditions as a single unfitting condition analogously coded 5003 (arthritis, degenerative) and rated 10%.  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 s initial charge in this case was 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 evidence for the left knee pain and back pain conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent left knee surgery in November 1999 for open excision of fragments after a fracture injury.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  

At 23 February 2001 orthopedic clinic appointment, the CI reported pain with prolonged activity.  There was abnormal contour and functional ability.  Physical examination showed full range of motion (ROM), bony abnormality to patella was noted, and there was no mechanical symptoms.   

The 11 April 2001 MEB NARSUM, 12 months before separation, the CI reported chronic retropatellar pain, particularly with any weight bearing activities to include running, hopping, squatting, and prolonged standing.  Medications did not help.  Physical examination noted no effusions, no instability, and no mechanical symptoms.  The left knee had full ROM with ligaments stable, mild crepitus, and McMurray’s test (test for tears in the meniscus) was negative.  About one-third of the lateral patella was resected with tenderness to touch and palpation reported.  He had an abnormal glide and knee alignment was in slight valgus.  

At the 3 March 2009 VA Compensation and Pension (C&P) evaluation, performed 22 months after separation, the CI reported pain in his left knee, which he rated 6/10, with occasional swelling.  He reported that the knee giving away twice a week.  No brace was worn.  Standing more than 20-minutes aggravated the pain.  Physical examination showed ROM measurement of flexion at 135 degrees (normal 140) and a normal extension of 0 degrees.  There was no fluid, no crepitus, and no laxity.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition and the back condition together at 10%, analogously coded 5003 (arthritis, degenerative), citing as rated for pain.  The VA rated the left knee condition 10%, coded 5010-5260 (arthritis, due to trauma-leg, limitation of flexion of), citing limitation of motion.  

There was no limitation of motion which supported a 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. There was no fracture, non-union, or mal union of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There was no evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  There was therefore no VASRD §4.71a route to a rating higher than the 10% under any applicable code, and no grounds for additional rating based on the presence of instability.  No additional functional limitation was evidenced by the examinations.  Therefore the panel concluded there was not sufficient evidence to support a rating for the left knee condition.  

Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s back condition began in January 1998 after a fall.  Radiographic (X-ray) appeared normal with no significant abnormalities.  Magnetic resonance imaging (MRI) studies of the lumbar-sacral spine were normal.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. 

The April 2001 MEB NARSUM examination,12 months prior to separation noted complaints of intermittent low back pain in the right para spinous region.  Pain was made worse with prolonged sitting, jumping, and prolonged standing in formation.  He had no pain with running, but did have pain after running.  The CI also complained of non-anatomic total right leg numbness with prolonged sitting.  Physical examination showed the CI was not-tender to touch and palpation along his spine and para spinous region.  ROM measurement showed a normal flexion of 90 degrees and an extension of 20 degrees (normal 30).  The CI had negative straight leg (test for underlying herniated disc) and opposite straight leg raises, positive right Faber’s test (test to evaluate the pathology of the hip joint) with reproduction of low back pain.  Strength and reflexes were normal.  There were 3/5 Waddell signs (non-organic or psychological component of back pain) observed where the CI reported pain with examination maneuvers not expected to elicit pain based on the known pathology.  

At the 9 March 2004 VA Compensation and Pension (C&P) evaluation, performed 22 months after separation, the CI reported low back trouble since 1997.  He rated his back pain as 6/10 with 10/10 with flare-ups.  The CI reported two flare-ups during the last year, each lasting two days, during which time he was incapacitated and in bed for those times.  The pain radiated into the right leg.  Physical examination showed that the CI had a normal gait and that he could walk on his heels and on his toes.  ROM measurements showed a flexion of 70 degrees and a normal extension of 30 degrees.  ROM measurements were limited by pain.  Lumbar muscle tone was normal and there was no scoliosis.  There was no objective evidence of spasm or weakness or tenderness. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee and back pain condition 10%, analogously coded 5003 (arthritis, degenerative), citing as rated for pain.  The VA rated the back condition 10% coded 5295 (lumbosacral strain), based on the VA C&P examination 22 months after separation, citing limitation of forward flexion.  

The panel 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 MEB NARSUM and C&P examinations.  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.  The panel also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy.  The presence of functional impairment with a direct impact on fitness is the key determinant in the panel’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 panel therefore concluded that an additional disability rating was not justified on this basis.  

Ideal coding would be for a 0% left knee and a 10% back; however, this would be no higher than the 10% awarded by the PEB.  There was therefore no VASRD §4.71a route to a rating higher than the 10% adjudicated by the PEB under any applicable code.  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 bilateral knee condition.  

Intermittent Right Shoulder Pain.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  He underwent surgery in January 2001 with good result.  He was in physical therapy for postoperative rehabilitation.  The contended condition was profiled as a P2 (meets medical retention) and the condition was not implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the left knee pain and back pain conditions and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended intermittent right shoulder pain condition, the panel unanimously recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150611, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170012107, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Sincerely,