RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01819
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty O3, Military Police Officer, medically separated for “chronic low back pain…” with a disability rating of 10%.  

CI CONTENTION:  “Review 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 - 20060118	VARD - 20070221	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain Secondary to Spinal Stenosis at L4/5 and L5/S1, Without Motor Neurologic Deficit	5238	10%	Low Back Condition Herniated Disc	5238-5243	10%	20061213	
Left Knee	Not Unfitting	Residuals, Left Knee Injury, Status Post Medial Meniscectomy	7805-5260	0%	20061002	
Right Knee	Not Unfitting	Residuals, Left Knee Injury, Status Post Medial Meniscectomy	7805-5260	0%	20061002	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s low back condition began in November 2004 after weightlifting.  An X-ray performed on 8 December 2004, showed mild disc space narrowing between L4 and S1 along with sacralization of L5 (congenital fusion of L5 to the first sacral vertebrae).  A lumbar MRI performed on 5 August 2005 revealed a small disc herniation at L5/S1 with mild to moderate spinal stenosis, S1 nerve root compression, and mild spinal stenosis at L4/L5.  According to the neurosurgery clinic consult conducted on 23 September2005, no surgery was indicated.  On physical examination, the CI could bend over and “almost touch his toes.”  He was tender over the back.  Straight leg testing (for radicular signs) was negative bilaterally, and he had good range of motion (ROM) of the hips on internal and external rotation.  Neurologic testing revealed excellent strength in the lower extremities with normal sensation and normal reflexes.  Electrodiagnostic studies conducted on 2 November 2005 were normal and revealed no neuropathy or radiculopathy.  

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:  “chronic low back pain with herniated nucleus pulposus at L5/S1;” “mild to moderate spinal stenosis at L5/S1;” and “mild spinal stenosis at L4/L5” for PEB adjudication.  

The MEB NARSUM examination on 13 December 2005, 3 months prior to separation, noted complaints of constant achy back pain that increased to a sharp pain sensation when he sat or stood for 30 minutes.  On physical examination, lumbar spine ROM measurements were recorded as painful flexion to 90 degrees (normal 90), and combined ROM of 240 degrees (normal 240).  There was tenderness to palpation at L4/L5 with spasms on the right.  Straight leg testing (SLR for radicular symptoms) was negative.  The examiner stated, “His gait is limited due to knee problems and his walking on toes and heel is limited due to knee problems.”  Motor strength was normal bilaterally at hip flexion.  Deep tendon reflexes were normal of his left knee; and the right knee was not tested due to post-surgery recovery.  There were no sensory deficits.  

At the 13 December 2006 VA Compensation and Pension (C&P) evaluation, performed 10 months after separation, the CI reported daily back pain just above the belt.  The examiner noted there was no radiation of any of these back symptoms to any other part of his body and specifically to his leg, which had remained unaffected.  He had no numbness, or tingling sensations, weakness or muscle atrophy.  Physical examination showed a normal gait with no tenderness or spasm of the paravertebral muscles.  Neurologic examination showed minimal weakness of left 2nd and 3rd toe abduction and left great toes abduction, and was otherwise normal.  ROM was to normal limits in all planes, with “altered mechanisms of trunk movement” and a straightened lumbar spine.  SLR was negative.  The examiner stated that the CI’s low back pain was directly related to the “lumbosacral junction malformation” of the spine associated with disc herniation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 10%, coded 5238 (spinal stenosis), citing tenderness and spasm.  The VA also rated the low back condition 10%, coded 5238-5243 (intervertebral disc syndrome).  The Board concluded there was no evidence to support a rating higher than the 10% rating adjudicated by the PEB.  There was insufficient limitation of motion to support any rating above 10%.  Although the NARSUM examination documented muscle spasm and an abnormal gait, the examiner specified that the abnormal gait was due to a knee problem; therefore, 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.  There was also no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula (for IVDS), or evidence of ratable peripheral nerve impairment which would provide for additional rating.  No additional functional limitation was evidenced by the examinations.  There was therefore no VASRD §4.71a route to a higher rating under any applicable code.  

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 low back condition.  

Contended PEB Conditions: Left Knee and Right Knee.  The Board’s main charge is to assess the fairness of the PEB’s determination that the left knee and right knee conditions were not unfitting.  According to the STR and the MEB NARSUM, the CI had left and right knee pain for several years.  He had left knee surgery three times (2001, 2004 and September 2005) and right knee surgery two times (January 2005 and November 2005).  Both knees had meniscal injuries and repairs, with the latest surgeries within 6 months of separation.  

The MEB NARSUM addendum examination (bilateral knee pain) performed on 14 December 2005, 2 months prior to separation, noted complaints of “some” pain in the left knee with excessive use, and pain in the right knee with squatting, leg presses and stair climbing.  The post-surgical knee rehabilitation was progressing well until a minor right knee re-injury during physical therapy one week prior to the NARSUM addendum.  Diagnostic imaging from August and September 2005 documented left knee abnormalities consistent with osteoarthritis and early chondrocalcinosis and right knee osteoarthritis.  

Physical examination of the bilateral knees showed no erythema or effusion.  The CI “had full range of motion bilaterally of 0 to 135 degrees” (VASRD normal 0 to 140).  There was no laxity or instability of either knee on examination.  The right knee demonstrated some mild tenderness over the medial joint line, with no tenderness of the left knee.  The neurovascular examination bilaterally was normal with normal motor function distally and intact sensation.  The physician’s assessment was that “The primary disqualifying diagnosis appears to be the chronic low back pain in isolation, his bilateral knee pains would not necessarily be disqualifying at this time” and that bilateral knee pain was not disqualifying.  The VA C&P examination of the left knee and right knee was performed on 2 October 2006, 8 months after separation, noted a normal gait with essentially normal knee examinations.  

The CI’s bilateral knee condition was implicated in the commander’s statement with comment of “physically incapable of reasonably performing his duties as a 31A, Military Police Officer, due to his chronic back and knee problems,” and “chronic knee pain prevents him from conducting MOUT operations and conducting individual movement techniques.”  The temporary profile from 19 October 2005 listed both knees, the 29 November 2005 profile on the DD Form 2808 MEB physical listed only the left knee, and the 27 December 2005 permanent profile listed no knee condition (only the back condition as L3).  The left and right knees were not judged to be disqualifying by the NARSUM physician, and not judged to fail retention standards by the MEB.  

The Board considered the CI’s adequate performance until referral into the disability system, re-injury with surgery to each knee proximate to separation, the MEB NARSUM addendum assessment and the essentially normal post-separation VA examination.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the left and right knee conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the low back condition, the Board unanimously recommends no change from the PEB determinations as not unfitting.  In the matter of the contended left and right knee conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board 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 20150614, 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

20 MAR 2017

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for 
XXXXXXXXXXXXXXXXXX, AR20170001967 (PD201501819)

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, I accept the Board’s recommendation and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA