RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02265
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050929

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Administrative Specialist, medically separated for “chronic low back pain” with a disability rating of 10%.  The PEB also found “foot pain” and “chronic knee pain” unfitting and determined to have existed prior to service (EPTS) without permanent service aggravation (PSA).   

CI CONTENTION:  “Conditions have increased over the years and I have problem doing day to day activities.  I am 40 yr.’s old and can’t do yard work/ can’t sleep at night and continue to fight depression because of this.”  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 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 - 20050623	VARD - 20060407	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Chronic Low Back Pain	5243	0%	STR	
Foot Pain	5299-5276	EPTS/NO PSA	Bilateral Hallux Valgus	5280	NSC	STR	
Chronic Knee Pain	5099-5003		Left Knee RPPS	5099-5019	NSC	STR	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	NSC	STR	
Mild Unilateral HF Hearing Loss on Right	Medically Acceptable	Right Hearing Loss	6100	NSC	STR	
Pseudo-Folliculitis	Condition Does Not Constitute a Disability 	Pseudo-Folliculitis Barbae	7806	NSC	STR	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic low back pain (LBP) condition began in August 2004 with no known trauma or inciting incident.  Surgical intervention was offered by neurosurgery and the CI chose not to undergo the proposed operation.  Treatments with physical therapy, muscle relaxers and anti-inflammatory medications did not significantly improve his symptoms.  The MRI of the lumbar spine on 23 November 2004 demonstrated minimal retrolisthesis (the vertebra had slid back with respect to the surrounding vertebrae) with a mild diffuse disc bulge with a superimposed small right foraminal disc protrusion that caused impingement of the exiting right L5 nerve root.  

At the time of the physical therapy clinic visit on 16 December 2004, 9 months prior to separation, the examiner recorded complaints of LBP with intermittent sharp pain radiating to the distal right thigh.  The examiner noted that all active range of motion (ROM) with trunk movement and bilateral lower extremities were grossly within functional limits.  The therapist noted pain with left side bending only. 

The 12 April 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of daily LBP that made the CI unable to do push-ups or sit-ups.  The CI reported he was unable to run due to LBP and stairs caused an increase in back pain.  Physical examination showed back ROM of 30 degrees forward flexion (normal 90); no other measurements were provided.  There were no muscle spasms or tenderness in the low back.  

At the 27 April 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, the CI reported that he had trouble standing and kneeling, sporadic nerved pain on both sides of his back, numbness in both legs and in his toes at times and trouble sleeping from time-to-time.  He further reported that he had a special work chair, a special mattress on his bed, custom‑made shoes, boots and inserts.  

At the 16 May 2005 physical therapy visit for the purpose of obtaining ROM measurements for the MEB, the physical therapy assistant recorded forward flexion of 5 degrees (normal 90) and a combined ROM of 75 degrees (normal 240).  

The CI did not attend a VA Compensation and Pension (C&P) evaluation proximate to separation.  The first C&P examination attended by the CI was 8 December 2006, 15 months after separation.  At that evaluation, the CI complained of daily sharp pains across the lumbar area with radiation of pain to the posterior right leg and numbness of the toes of the right foot.  The CI said that the right leg felt subjectively weaker compared to the left.  He denied incapacitating episodes.  He had not lost work in the previous year due to back pain.  Physical examination showed forward flexion of 55 degrees (normal 90) and a combined ROM of 150 degrees (normal 240) with pain at the end of each motion except left lateral bending.  There were no abnormal curvatures noted.  The examiner noted mild lumbar tenderness and muscle spasm, but gait was normal.  Straight leg raise was negative.  Neurological examination revealed normal muscle mass and strength in all extremities.  Sensation was intact throughout.  Deep tendon reflexes were normal and equal bilaterally.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP condition 10%, coded 5237 (lumbosacral strain), citing painful motion with no evidence of mechanical blockage.  The VA initially rated the chronic LBP condition 0% coded 5243 (intervertebral disc syndrome), based on the STR, citing the absence of current medical evidence showing a continued functional impairment.  The panel considered the probative value of each of the examinations in evidence and found that the physical therapy assistant’s evaluation in May 2005 was so disparate from other examinations in evidence that it was discounted for rating purposes.  On other examinations, there was forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees to justify a 20% rating in the General Rating Formula for Diseases and Injuries of the Spine coded 5242 (degenerative arthritis of the spine).  The panel agreed that there was no limitation of forward flexion of the thoracolumbar spine of less than 30 degrees to justify a 40% rating.  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).  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 LBP condition, coded 5242.  

Bilateral Foot Pain in the Setting of Pes Planus and Hallux Valgus.  The PEB combined the left and right foot pain diagnoses as a single unfitting condition under a single code and rating.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and that 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 VASRD criteria of 5003, and that this approach does not necessarily 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 that it alone would not have caused 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.  

According to the STR and the MEB NARSUM, the CI’s chronic foot pain began in October 2002 and was first evaluated in April 2003.  The CI was diagnosed with bilateral hallux valgus (bunions) and pes planus (flat feet); the later were noted on his MEPS physical.  He was prescribed custom‑made orthotics, as well as stretching exercises.  When the CI’s symptoms did not improve, he was offered a surgical procedure for his bunions, but the CI declined.  

The 12 April 2005 MEB NARSUM examination, 6 months prior to separation, noted complaints of bilateral foot pain (does not specify location) and bilateral heel pain with prolonged walking and inability to run.  The CI noted that his bilateral foot pain had improved since being on profile, limiting his activity, and that he opted for modification of his activity as his primary treatment for the foot pain.  Physical examination showed bilateral bunions and moderate pes planus.  

There was no VA examination in evidence proximate to separation.  The first C&P examination attended by the CI was 8 December 2006, 15 months after separation.  At that evaluation, the CI related a history of having a left bunion prior to service but not on the right.  He complained of pain and numbness of his toes/bunion area bilaterally.  The pain was constant and mild and became more pronounced once each week lasting for one day, with ROM maintained during the flares.  The CI reported that he had lost no work over the previous year due to foot pain and that it had no impact on his work.  Physical examination showed bilateral hallux valgus (bunions) with a 30 degree angle on the left and a 20 degree angle on the right.  Mild tenderness was noted over the left bunion area.  X-Rays of bilateral feet showed a normal right foot and hallux valgus of the left foot, with an otherwise normal study.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB determined the foot pain condition exist prior to service (EPTS) and that it was not permanently service aggravated; citing the entry physical in June 2002, which recorded pes planus.  The VA did not service connect the bilateral hallux valgus condition citing no permanent residual or chronic disability.  The panel considered whether or not there was evidence of permanent service aggravation of the bilateral foot pain conditions.  A presumption of service aggravation may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  The entrance physical examination did not find hallux valgus in either foot, although it did record bilateral pes planus, and there was no complaint of foot “pain, corns, bunions, etc.” on that evaluation.  The panel noted that the first complaint of left foot pain and diagnosis of bunion was within the first 6 months the CI had been in the Army.  Over the following 2 years, the CI complained of pain in one or both great toes several times.  Panel members agreed the presumption of service aggravation is not overcome and recommends the bilateral foot pain conditions be considered for disability ratings.  

Left Foot Pain.  The panel next considered if the left foot pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The commander’s statement did not implicate any of the unfitting medical problems.  The permanent profile listed “hallux valgus (chronic foot pain)” but did not specify which foot.  The panel found that the majority of evaluations in evidence were for bilateral foot pain; and that only one visit was for right foot only and one visit for left foot only.  Panel members agreed the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  

The panel noted that there was no evidence of an operation to resect the metatarsal head to justify a 10% rating and that constant mild pain that intermittently increased did not rise to the level of “severe, equivalent to amputation of the great toe” to validate a 10% rating coded 5280 (hallux valgus).  There was no evidence of  acquired flatfoot to support a rating under code 5276 or painful motion recorded on any of the examinations proximate to separation to substantiate a rating under VASRD §4.59, painful motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a separate disability rating of 0% for the left foot pain condition, coded 5280.  

Right Foot Pain.  The panel next considered if the right foot pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The commander’s statement did not implicate any of the unfitting medical problems.  The permanent profile listed “hallux valgus (chronic foot pain)” but did not specify which foot.  As above, the panel found that the majority of evaluations in evidence were for bilateral foot pain and that only one visit was for right foot only and that one visit was for left foot only.  Panel members agreed the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  

The panel noted that there was no evidence of an operation to resect the metatarsal head to justify a 10% rating and that constant mild pain that intermittently increased did not rise to the level of “severe, equivalent to amputation of the great toe” to validate a 10% rating coded 5280 (hallux valgus).  There was no evidence of  acquired flatfoot to support a rating under code 5276 or painful motion recorded on any of the examinations proximate to separation to substantiate a rating under VASRD §4.59, painful motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a separate disability rating of 0% for the right foot pain condition, coded 5280.  

Bilateral Chronic Knee Pain.  The PEB combined the left and right knee as a single unfitting condition under a single code and rating.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and that 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 VASRD criteria of 5003, and that this approach does not necessarily 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 that it alone would not have caused 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.  

According to the STR and MEB NARSUM, the CI’s chronic knee pain condition began with a left knee injury that resulted in an arthroscopic surgery to (the record does not specify what was done during that operation) in 1993, prior to service.  The CI underwent a second operation in May 2002, also prior to service, in which he had a removal of part of the lateral meniscus of the left knee.  The CI’s knee pain again increased and he sought care for it in April 2004 and at that time, the pain was bilateral and was diagnosed as retro-patellar pain syndrome.  There was no surgical indication.  After several rounds of physical therapy and anti-inflammatory medications, the bilateral knee pain was not significantly improved.  

A 12 May 2004 physical therapy note, 17 months prior to separation, records that the CI had a 10 or 11 year history of bilateral, left greater than right, knee pain that had worsened over the preceding 1½ years.  The pain was worse with walking, jogging, prolonged sitting with bended knees.  The pain was improved by avoiding those activities.  Physical examination showed full active ROM and a normal gait.  There was no pain with compression over the kneecaps or with pressure on the kneecaps while bending the knees.  

The 12 April 2005 MEB NARSUM examination, 6 months prior to separation, noted complaints of bilateral knee pain with no improvement after physical therapy.  Physical examination showed ROM in both knees was normal with no swelling or signs of inflammation.  X-rays were reported as normal.

The first C&P examination attended by the CI was 8 December 2006, 15 months after separation.  At that evaluation, the CI complained of bilateral knee pain that was brought on by prolonged standing or walking that lasted until he was able to get off his feet.  He told the examiner that he would get a flare of bilateral knee pain every 2 weeks that lasted 1-2 days, but during that time there was no limitation of motion and there was occasional swelling with some stiffness without giving out.  Physical examination showed bilateral knee flexion to 120 degrees (normal 140) with pain at the end of motion.  Extension was to 0 degrees bilaterally (normal) without pain.  X-rays were negative.  There was no lack of endurance, pain or weakness with repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB determined the bilateral knee pain condition to be EPTS citing the condition existed prior to entry on active duty and had not been permanently service aggravated.  The VA did not service connect the right or left knee based on the STR, citing no permanent residual or chronic disability subject to service connection.  

The panel considered whether or not there was evidence of service aggravation.  A presumption of service aggravation may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  The panel did find evidence of removal of the left knee lateral meniscus prior to service; and the physical therapist did record a history of bilateral retropatellar knee pain existed prior to service, but the knee pain greatly increased over the 18 months the CI was on active duty.  Panel members agreed the presumption of service aggravation is not overcome and recommends the bilateral knee pain conditions be considered for disability ratings.  

Chronic Left Knee Pain.  The panel next considered if the left knee pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The commander’s statement did not implicate any of the unfitting medical problems.  The permanent profile listed “RPPS (retropatellar pain syndrome) (chronic knee pain)” but did not specify which knee.  The panel found that all of the evaluations in evidence were for bilateral knee pain, even though the left was greater than the right.  Panel members agreed the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.  

The panel noted that there was no limitation in knee flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  None of the examinations proximate to separation demonstrated the presence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) or history of additional surgery to remove a meniscus during service (5259) to support a rating under the respective codes.  There was no fracture, nonunion 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 addition, none of the examinations proximate to separation supported evidence of painful motion to justify a minimal rating under VASRD §4.59, painful motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 0% for the left knee pain condition, coded 5099-5003 (analogous to degenerative arthritis).  

Chronic Right Knee Pain.  The panel next considered if the right knee pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The commander’s statement did not implicate any of the unfitting medical problems.  The permanent profile listed “RPPS (chronic knee pain)” but did not specify which knee.  The panel found that all of the evaluations in evidence were for bilateral knee pain even though the left was greater than the right.  Panel members agreed the evidence reasonably justified that the functional limitations of the condition contributed to the CI’s inability to perform his military duties, and accordingly a separate disability rating is recommended.

The panel noted that there was no limitation in knee flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  None of the examinations proximate to separation demonstrated the presence 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, nonunion 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 addition, none of the examinations proximate to separation supported evidence of painful motion to justify a minimal rating under VASRD §4.59, painful motion.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 0% for the right knee pain condition, coded 5099-5003.  

Contended PEB Conditions: Migraine Headaches, Mild Unilateral High Frequency Hearing Loss on the Right, Pseudo-folliculitis.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The migraine headache condition was added to the permanent profile after the MEB was submitted and a MEB NARSUM addendum stated that the CI did not miss work due to headaches and that they resolved spontaneously without medication.  The “mild unilateral high frequency hearing loss on the right” condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  The pseudo-folliculitis is a condition not constituting a physical disability, IAW DODI 1332.38 and therefore not ratable.  There was no performance‑based evidence from the record that any of the conditions 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 any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chronic low back pain condition, the panel unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a.  In the matter of the bilateral foot condition (hallux valgus), the panel unanimously recommends an unfitting right foot hallux valgus condition coded 5280, rated 0%; and an unfitting left foot hallux valgus condition, coded 5280, rated 0%, both IAW VASRD §4.71a.  In the matter of the bilateral chronic knee pain condition, the panel unanimously recommends an unfitting right knee condition coded 5099-5003, rated 0%; and an unfitting left knee condition, coded 5099-5003, rated 0%, both IAW VASRD §4.71a.  In the matter of the contended migraine headaches and mild unilateral high frequency hearing loss on the right, the panel unanimously recommends no change from the PEB determinations as not unfitting.  As stated above, the pseudo-folliculitis is a condition not constituting a physical disability.  There are 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, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5242	20%	
Chronic Left Foot Pain, Hallux Valgus	5280	0%	
Chronic Right Foot Pain, Hallux Valgus	5280	0%	
Chronic Left Knee Pain, Retropatellar Pain Syndrome	5099-5003	0%	
Chronic Right Knee Pain, Retropatellar Pain Syndrome	5099-5003	0%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150810, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170012163, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure