RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02268
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050512
DATE REMOVED FROM TDRL:  20050512

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Reserve E4, Automated Logistics Specialist, medically separated from the Temporary Disability Retired List (TDRL) for “chronic bilateral knee pain” and “chronic mixed headaches” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

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 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 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 determinations 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 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 – 20030909/20050318	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating Proximate	
		TDRL
Placement	TDRL Removal			TDRL
Placement	TDRL
Removal	
Chronic Bilateral Knee Pain	5099-5003	10%	10%	No VARD or C&P Eval in Record	
Chronic Mixed Headaches	8199-8100	30%	0%		
Anxiety Attacks	MEB		
Polycystic Ovarian Syndrome	MEB		
COMBINED RATING:  40% → 10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions (chronic bilateral knee pain) under a single service disability rating, analogously to 5003 and rated 10% at TDRL removal with application of the USAPDA pain policy AR 635-40 B24.f.  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 evidence for the right and left knee conditions are presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) prior to TDRL placement, the CI’s knee condition began without specific injury or trauma.  The left knee was more problematic than the right knee.  A 19 February 2004 physical therapy (PT) examination, 14 months prior to TDRL exit, noted bilateral knee pain left greater than right with a full active range of motion (FAROM) for both flexion and extension.  

The 16 November 2004 MEB NARSUM examination, 5 months prior to TDRL exit, noted complaints persistent pain in both knees over the previous year without any improvement or worsening.  The CI noted her pain became worse with flexion and sitting for an extended period of time.  The physical examination showed no swelling, no tenderness, no instability and a ROM of 0-130 degrees (140 Normal) bilaterally.  There was no VA Compensation and Pension (C&P) evaluation noted in the record.  The panel first considered if the each knee, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Only the left knee was profiled and limitations were no functional activities.  According to the commander’s statement dated 2 May 2003, the CI’s physical impairments did prevent her from fulfilling the requirements of his MOS.  Panel agreed that the evidence reasonably justified that the functional limitations of only the left knee contributed to the CI’s inability to perform her military duties and accordingly cannot recommend a separate rating for the right knee.  

The panel directed attention to its rating recommendation based on the above evidence.  At TDRL exit, the PEB rated the bilateral knee condition 10%, analogously coded 5099-5003 (degenerative arthritis), citing pain as slight and constant.  No VA rating was noted in the record.  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for the left knee.  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 no VASRD §4.71a route to a higher rating under any applicable code for the left knee, and no grounds for additional rating based on the presence of instability.  After due deliberation, and considering all of the evidence, the panel recommends a disability rating of 10% for the left knee condition, coded 5099-5003 at TDRL exit.

Chronic Headaches.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM) prior to TDRL placement, the CI’s headaches (HA) began in February 2002 without specific injury or trauma.  A magnetic resonance imaging (MRI) study was normal.  
The 16 November 2004 MEB NARSUM examination, 5 months prior to TDRL exit, described two types of headaches.  The first headache was characterized as throbbing and located bi-frontally.  This type of headache did not produce nausea or sensitivity to light and sound.  However, this headache lasted between 1 to 2 hours and the CI was able to function.  The frequency of this headache was once per week with a severity of 3/10.  The second type of headache was characterized as being more severe radiating pain around the head.  These headaches produced nausea, vomiting, light and sound sensitivity with visual symptoms of “white sparkles”.  The headache severity was 10/10 with a frequency of 1-2 times per week, lasting approximately 8 hours.  The CI was treated with Inderal and Elavil.  The physical examination showed normal cranial nerves.  The examiner noted that the CI’s headaches typically lasted 8 hours and that the CI usually waited 5 hours to take abortive medication, which caused her to fall asleep.  There was no VA Compensation and Pension (C&P) evaluation in the record.  

The panel directed attention to its rating recommendation based on the above evidence.  At TDRL exit, the PEB rated the headaches 0%, analogously coded 8199-8100 (migraine), citing discontinued use of prophylactic medication and no evidence of prostrating headaches.  No VA rating was noted in the record.  Rating guidance under diagnostic code 8100 is based on the frequency of “prostrating attacks” over the “last several months.”  The VASRD does not further define prostrating attacks however commonly accepted definitions include “utter physical exhaustion or helplessness” (Webster's New World Dictionary of American English), “complete physical or mental exhaustion” or “extreme exhaustion or powerlessness” (Dorland's Illustrated Medical Dictionary).  Review of the record supported a conclusion that, during the several months prior to TDRL exit, the CI experienced headaches occurring on average once per month.  The panel noted that review of the NARSUM at 5 months prior to TDRL exit, there were encounters for acute exacerbation of headaches lasting 8 hours and requiring abortive medication.  The abortive medication caused the CI to fall asleep.  However, the panel majority concluded that the evidence in the STR did not support a finding that the headache severity was prostrating as defined above.  A rating of 0% was therefore justified.  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 chronic mixed headaches condition.  

Contended PEB Conditions:  Anxiety Attacks.  Polycystic Ovarian Syndrome.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  Both of the conditions were profiled and implicated in the commander’s statement but not judged to fail retention standards at TDRL removal.  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 bilateral knee condition, the panel unanimously recommends that it be adjudicated for two separate conditions:  In the matter of the left knee condition, the panel unanimously recommends a separately unfit determination with a disability rating of 10%, analogously coded 5099-5003.  In the matter of the right knee condition, the panel unanimously agrees that it cannot recommend a finding of unfit for additional service disability rating.  In the matter of the chronic mixed headaches condition and IAW VASRD §4.124a, the panel majority recommends no change in the PEB adjudication at TDRL exit.  In the matter of the contended anxiety attacks and polycystic ovarian syndrome conditions, the panel unanimously recommends no change from the MEB determinations IAW AR 40-501.  The single voter for dissent recommended modification and did not elect to submit a minority opinion.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150828, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170012165, 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,