RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02196
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030801

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E6, Intelligence Analyst, medically separated for “chronic low back pain,” “bilateral ankle pain,” and “bilateral knee pain;” rated 10%, 10%, and 0%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  “Review all conditions.”  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 - 20030403	VARD - 20030516	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5293-5299-5295	10%	Status Post L5-S1 Microdiscectomy with L5-S1 Herniated Nucleus Pulposus 	5292	20%	20030422	
Bilateral Ankle Pain	5271	10%	Right Ankle Instability, Status Post Lateral Ligament Reconstruction of Right Ankle	5299-5271	10%		
			Left Ankle Instability		10%		
Bilateral Knee Pain	5099-5003	0%	Left Patellofemoral Pain Syndrome	5261-5024	10%		
			Right Patellofemoral Pain Syndrome		10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent back surgery with L5-S1 microdiscectomy and removal of a herniated disk in March 2002.  Back pain increased following surgery and diagnostic imaging noted a budge at L5-S1 with neuroforaminal narrowing; however, additional surgery was not recommended.  Despite treatment, the back condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty, additional surgery was not recommended, and the CI was referred for an MEB.  The MEB forwarded “chronic low back pain status post L5-S1 microdiscectomy with L5-S1 herniated nucleus pulpous with neural foraminal narrowing” for PEB adjudication.  

The 16 December 2002 MEB NARSUM examination, 8 months prior to separation, noted complaints of chronic low back pain.  Physical examination showed tenderness in the lower back muscles and range of motion (ROM) of active back flexion of 45 degrees (listed passive of 55 degrees), extension active 15 degrees, left rotation 20 degrees, right rotation 20 degrees, left side bending 15 degrees, right side bending 20 degrees, and all motions elicited pain.  These ROM values are the exact same as the physical therapy (PT) ROMs dated 27 February 2003, 5 months prior to separation.  

At the 22 April 2003 VA Compensation and Pension (C&P) evaluation, 4 months before separation, the CI reported back pain and decreased flexibility.  Physical examination showed a normal posture and gait.  There was tenderness over the left sacroiliac joint, and the surgical scar was well healed.  The physician referred to the PT ROMs for the MEB cited above (forward flexion of 45 degrees).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic low back pain condition 10%, coded 5293-5299-5295 (intervertebral disc syndrome analogous to lumbosacral strain), citing decreased ROM with pain.  The VA rated the “status post L5-S1 microdiscectomy with L5-S1 herniated nucleus pulposus condition” 20% coded 5292 (spine, limitation of motion of, lumbar), based on the C&P examination 4 months before separation, citing moderate limitation of motion.  In accordance with DoDI 6040.44, the panel is required to recommend a rating IAW the VASRD in effect at the time of separation.  The panel noted that the 2003 Veteran Administration Schedule for Rating Disabilities (VASRD) standards for the spine, which were in effect at the time of separation, were changed to the current §4.71a rating standards effective 26 September 2003.  The panel must correlate the above clinical data with the 2003 rating schedule.  The applicable coding options for this case are excerpted below:  

5292 Spine, limitation of motion of, lumbar
Severe ...................................................................................................................................... 40
Moderate ................................................................................................................................. 20
Slight ........................................................................................................................................ 10

5293 Intervertebral disc syndrome:
Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either on the total duration of incapacitating episodes over the past 12 months or by combining under Sec. 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation.  

5295 Lumbosacral strain:
Severe; with listing of whole' spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion ............................................................................................................................................. 40
With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position ............................................................................................................................... 20
With characteristic pain on motion ........................................................................................ 10
With slight subjective symptoms only....................................................................................... 0

There were no incapacitating episodes for rating under code 5293.  Both the PEB and VA used the same PT ROMs for rating; however, at least one record copy of the PT ROMs had the passive flexion 55 degree measurement hand-circled, indicating likely application of AR 635-40, B-29e (rating only on mechanical loss of motion – while the VASRD uses active ROM).  The panel adjudged that the painful active forward flexion of 45 degrees, and all other ranges also significantly reduced, met the 5292 criteria for moderate limitation of motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the chronic low back pain condition, coded 5292.  

Bilateral Ankle Pain.  According to STRs and the MEB NARSUM, the CI had twisted both ankles multiple times on separate occasions.  He underwent right ankle surgery in January 1997 for lateral ligament reconstruction and declined surgery on the left ankle.  Despite treatment, the bilateral ankle 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 “bilateral ankle instability status post right ankle lateral ligament reconstruction” for PEB adjudication.  

At the November 2002 MEB examination (recorded on DD Forms 2807 and 2808), 9 months prior to separation, the CI reported bilateral ankle pain, limited motion, and prescription/use of ankle braces for instability.  Physical exam showed lateral tenderness bilaterally.  The 16 December 2002 MEB NARSUM examination noted complaints of bilateral ankle pain.  Bilateral ankle X-rays showed right ankle post-operative changes and were otherwise normal.  Physical examination showed laxity in both ankles (a positive anterior drawer on the left noted more than on the right, and a positive lateral tilt bilaterally).  ROMs were right ankle plantar flexion of 30 degrees (normal 45) and dorsiflexion of 0 degrees (normal 20); with left ankle plantar flexion of 40 degrees and dorsiflexion of 5 degrees; right ankle.  There was painful motion for each ankle.  These ROM values are the exact same as the physical therapy (PT) ROMs dated 27 February 2003, 5 months prior to separation.  

At the 22 April 2003 C&P evaluation the CI reported bilateral ankle pain and laxity with a history of multiple episodes of twisting both ankles.  Physical examination showed normal posture and gait.  The physician referred to the Service PT ROMs for the MEB cited above.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB combined the left ankle and right ankle (bilateral ankle pain) conditions as a single unfitting condition coded 5271 (ankle, limited motion of), and rated 10%, citing painful motion.  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 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 VA rated each ankle condition 10% coded 5299-5271 (analogous to ankle, limited motion of), based on the C&P examination 4 months before separation and the PT ROMs, citing painful motion and instability in each ankle.  

The left ankle was not profiled and had not undergone surgery; however, both ankles were painful and unstable and required a brace.  Both ankles were also addressed together clinically with similar limitations from prior to November 2002.  The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either one ankle over the other.  Since undue speculation would be required to conclude that impairment from either ankle would not have unacceptably interfered with MOS performance, members agreed that each ankle was reasonably justified as separately unfitting.  

The examinations in evidence and the PEB disability description supported painful motion for each ankle.  There was evidence of painful motion causing functional loss supporting the 10% rating (based on §4.59, §4.40 and §4.45) for each ankle.  There was no marked limitation of motion of either ankle to support the next higher 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right ankle pain condition, coded 5271; and 10% for the left ankle pain condition, coded 5271.  

Bilateral Knee Pain.  According to STRs and the MEB NARSUM, the CI’s bilateral knee pain condition began in March 1996 after running.  There was no surgical indication.  The MEB forwarded “bilateral patellofemoral knee pain” for PEB adjudication.  

The 16 December 2002 MEB NARSUM examination noted complaints of chronic bilateral knee pain worsened with running.  Bilateral knee X-rays were normal.  Physical examination showed full ROM bilaterally with no laxity or instability.  Meniscal tests were negative.  There was positive patellar compression testing bilaterally.  

At the 27 February 2003 PT ROM evaluation the left knee had flexion of 100 degrees (normal 140) with extension of -10 degrees (normal 0); the right knee had flexion of 105 degrees and extension of -5 degrees.  There was painful ROM for each knee.  

At the 22 April 2003 C&P evaluation the CI reported bilateral knee pain with popping and occasional locking after prolonged sitting.  Pain worsened with walking up stairs and running.  Physical exam showed positive crepitus bilaterally with medial joint line tenderness of the right knee.  The physician referred to the PT ROMs for the MEB cited above.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB combined the left knee and right knee (bilateral knee pain) conditions as a single unfitting condition coded analogously to 5003 (arthritis, degenerative) and rated 0% with application of the US Army Physical Disability Agency pain policy.  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 VA separately rated the left and right knee patellofemoral pain syndrome conditions at 10% each, coded 5261-5024 (leg, limitation of extension of analogous to tenosynovitis), based on the C&P examination 4 months before separation and the PT ROMs, citing painful motion and limited motion in each knee.  

The L3 profile listed chronic bilateral ilio-tibial band friction syndrome, the NARSUM-referred diagnosis was bilateral patellofemoral knee pain, and the MEB indicated that bilateral patellofemoral knee pain did not meet retention standards.  The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either one knee over the other.  Since undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with MOS performance, members’ consensus was that each knee was reasonably justified as separately unfitting.  

The panel adjudged that the PT ROMs were closest to separation, and in conjunction with the VA examination, had the highest probative value for rating at separation.  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion (5260) for either knee.  Only the left knee met the 5261 (limitation of extension) criteria for a 10% rating.  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for each knee as adjudicated by the VA.  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 malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There was therefore VASRD §4.71a support for a 10% rating for each knee, but no higher.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 10% for the left knee pain condition, coded 5261-5024; and 10% for the right knee pain condition, coded 5261-5024.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5292 IAW VASRD §4.71a.  In the matter of the bilateral ankle pain condition, the panel unanimously recommends a disability rating of 10% for each ankle, both coded 5271 IAW VASRD §4.71a.  In the matter of the bilateral knee pain condition, the panel majority recommends a disability rating of 10% for each knee, both coded 5261-5024 IAW VASRD §4.71a.  The single voter for dissent recommended no change in the PEB’s 0% rating for the bilateral knee pain condition and did not elect to submit a minority opinion.  There were no other conditions within the panel’s scope of review for consideration.  

The panel 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 Low Back Pain	5292	20%	
Bilateral Ankle Pain	Right	5271	10%	
	Left	5271	10%	
Bilateral Knee Pain	Right	5261-5024	10%	
	Left	5261-5024	10%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150720, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170010141 , XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 50% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization 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 Department of Veterans Affairs.

Sincerely,					      
Enclosure