RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00079
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20020708

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Heavy Construction Equipment Operator, medically separated for “degenerative arthritis left wrist, lumbosacral spine, and left knee,” with a disability rating of 20%.

CI CONTENTION:  “The Army MEB/PEB misinterpreted my medical conditions and improperly rated me 20%.  The DOD should have used the same VASRD which would have resulted in military retirement and additional pay/benefits.”  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 conditions at the time of separation.  The panel has neither the role nor the authority to compensate for progression or complications of service-connected conditions after separation.  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 - 20020410	VARD - 20021121	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis Left Wrist, Lumbosacral Spine, and Left Knee	5099-5003	20%	Degenerative Changes, Lumbar Spine, Left Knee and Left Wrist	5010	20%	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Degenerative Arthritis Left Wrist, Lumbosacral Spine and Left Knee.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s left wrist condition began in 1997 after falling; the low back condition began in October 2001 after heavy lifting; and the left knee condition began in 2000 after the CI noticed swelling and pain.  
Degenerative Arthritis Left Wrist.  The CI fractured the scaphoid bone of his left hand/wrist in September 1997 when he fell onto his hand.  In the absence of healing, he had a surgical fusion, but pain persisted with any movement of forced wrist dorsiflexion.  In 1999 he fractured the left distal radius and underwent surgery.  However, he still had pain with forced dorsiflexion.  Radiographic (X-ray) studies of the left wrist dated 2 January 2002 demonstrated no residual of a previous scaphoid fracture.  Minor degenerative changes manifested by slight irregularity of the greater articular surfaces appeared to be developing at the articulation of the distal scaphoid and the greater and lesser multangular bones.  A soft tissue calcification was seen at the tip of the radial styloid process.  

During the 7 January 2002 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported wrist surgery.  Physical examination on 1 February 2002 showed left wrist dorsiflexion 35 degrees (normal 70), palmar flexion 65 degrees (normal 80), pronation 90 degrees (normal 80), supination 85 degrees (normal 85), radial deviation 35 degrees (normal 20), and ulnar deviation 28 degrees (normal 45).  He had normal strength of the left upper extremity; sensation was intact; and his reflexes were normal.   

The 19 March 2002 MEB NARSUM examination, 4 months prior to separation, noted complaints of pain in his left wrist with forced dorsiflexion such as when doing pushups.  Physical examination showed no deformity or tenderness of the left wrist.  The range of motion (ROM) was dorsiflexion 0 to 60 degrees, palmar flexion 0 to 60 degrees, ulnar deviation 0 to 50 degrees, and radial deviation 0 to 12 degrees.  The condition prevented the CI from lifting heavy equipment parts.  

There was no VA examination in evidence proximate to separation.

Degenerative Arthritis Lumbosacral Spine.  On 6 August 2001 the CI complained of lower back pain for 3 weeks after he picked up about a 250 to 300 pounds part that fell off of his heavy construction equipment.  He felt a pop in the back, but could not straighten up.  X-rays of the lumbar spine dated 13 August 2001 demonstrated.  Pain was worse when he stood for a long period of time.  Treatment consisted of Celebrex (celecoxib, a nonsteroidal-anti-inflammatory drug (NSAID)). He improved somewhat, and after a physical fitness test, he strained his back doing sit-ups and developed lower back pain with some numbness in the left posterior thigh.  Chiropractic treatments were instituted and a bone scan to rule out a fracture or congenital wedging, ordered because of low back pain and point tenderness at the T12 spinous process, was normal on 7 November 2011.  However, the treatments provided limited relief.  

At an orthopedic consultation on 4 December 2001 the CI had a normal gait with tenderness at L4-5.  Forward flexion was normal at 90 degrees and extension 25 degrees.  Heel and toe walking were normal.  

During the 7 January 2002 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported recurrent back pain.   Physical examination on 1 February 2002 showed forward flexion of 80 degrees, extension of 20 degrees, right and left lateral bending 30 degrees (normal 30) each.  He was able to walk on both heels and toes without difficulty.  He had positive weakness while performing toe raises on the left lower extremity.  Deep tendon reflexes were normal and lower extremity sensation was decreased in the S1 dermatome of the left foot.  He had negative straight leg raising and had normal manual muscle strength testing in the lower extremity.  

The 19 March 2002 MEB NARSUM examination, 4 months prior to separation, noted complaints of inability to bend and lift heavy equipment parts required in maintaining heavy construction vehicles.  Physical examination showed negative straight leg raising (to determine nerve root irritation) bilaterally.  There was mild tenderness to pressure bilaterally at the lumbosacral junction without a visible deformity or palpable spasm.  Forward flexion was to 75 degrees, backward flexion 0 to 30 degrees, lateral flexion 0 to 30 degrees bilaterally, and lateral rotation 0 to 25 degrees bilaterally.  Sensation and reflexes were normal and the CI was able to heel and toe walk without difficulty.  The CI reported the condition prevented him from doing the bending and lifting required in maintaining heavy construction vehicles.  On 21 March 2002 the CI claimed sciatic symptoms with standing, but not sitting.  

There was no VA examination in evidence proximate to separation.

Degenerative Arthritis Left Knee.  The CI had left knee swelling that began in July 2000.  In February 2001 he had a meniscectomy and after rehabilitation he returned to full activity, but pain and swelling still occurred with running over one mile.  An X-ray series dated 31 October 2000 showed a moderate joint effusion of the left knee, while magnetic resonance imaging (MRI) dated 5 December 2000 showed tears of the anterior and posterior horns of the lateral meniscus with an apparent small lateral meniscal cyst and a large joint effusion.  The CI underwent left knee arthroscopy on 13 February 2001 and was found to have Grade III chondromalacia changes of his lateral femoral condyle.  

At an orthopedic examination on 24 February 2001 the ROM of the left knee was 0 to 125 degrees (normal 140).  On 16 April 2001 the CI had a full ROM without pain, effusion, atrophy, or tenderness to palpation, Quadriceps muscle tone was excellent and the CI had a normal gait.  X-rays dated 2 January 2002 demonstrated possible minor early degenerative changes developing in the lateral compartment manifested by a very minimal osteophyte formation at the lateral aspect of the lateral tibial plateau.  

During the 7 January 2002 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months prior to separation, the CI reported left knee pain.   Physical examination on 1 February 2002 showed no effusion of the left knee and a ROM of 0 to 130 degrees.  He had tenderness to palpation around the patellofemoral joint with negative Lachman’s, drawers, and pivot shift tests (to determine instability).  He had no joint line tenderness and had no laxity with varus or valgus stress testing.  

At an orthopedic examination on 24 February 2001 the ROM of the left knee was 0 to 125 degrees.  The 19 March 2002 MEB NARSUM examination, 4 months prior to separation, noted complaints of pain and swelling in his left knee with running over one mile.  Physical examination showed a normal ROM of 0 to 140 degrees bilaterally with tenderness to pressure around the patella (kneecap) on the left without an effusion or laxity.  

There was no VA examination in evidence proximate to separation.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the degenerative arthritis left wrist, lumbosacral spine and left knee condition 20%, analogously coded 5003 (arthritis, degenerative), citing its rating of two or more major joints with X-ray evidence and occasional incapacitating symptoms.  The VA also rated the degenerative changes, lumbar spine, left knee and left wrist condition 20% coded 5010 (arthritis, due to trauma, substantiated by X-ray findings), based on STR documentation.  

The PEB combined the degenerative arthritis left wrist, lumbosacral spine and left knee conditions as a single unfitting condition coded 5099-5003 and rated 20%. The approach by the PEB commonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  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 degenerative arthritis left wrist, lumbosacral spine and left knee conditions was presented above.  In this case, the conditions were profiled and were implicated in the NARSUM and in the commander’s statement.  Members agreed that each condition is separately unfitting and a rating may be applicable for each condition. 

Panel members first discussed rating options for the degenerative arthritis left wrist.  There was no wrist ankylosis (code 5214) nor any significant wrist limitation of motion (code 5215) to warrant a 10% rating in the absence of dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm.  Therefore, based on within normal limits ROMs and in the absence of painful motion, neither code 5215 nor code 5003 offers an option other than a 0% rating.

The panel then considered rating options for the degenerative arthritis of the lumbosacral spine cognizant of the VASRD spine rules in effect at the time of separation.  Most proximate to separation forward flexion was 75 degrees down from 90 degrees approximately 3 months earlier, albeit without evidence to explain the etiology of the decrement.  Nonetheless, use of code 5292 (spine, limitation of motion, lumbar) offers a 10% rating for slight limitation of motion and 20% for moderate limitation of motion, while code 5293 (intervertebral disc syndrome) warrants a 10% rating for mild symptoms and 20% for moderate symptoms; recurring attacks.   Although it is not clear why the CI’s ROM for flexion decreased closer to separation; nevertheless, forward flexion to 75 degrees is not inconsistent with a mild to moderate limitation of motion of the lumbar spine; however, the CI’s symptoms were not congruent with those of a moderate disability using code 5293 in the absence of spasm or other neurologic findings proximate to separation.  Furthermore, a rating of 10% or even 20% was not achievable using code 5295 (lumbosacral strain) in the absence of “muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position.”

Panel members then considered a rating of the degenerative arthritis of the left knee.  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, the persistence of pain after meniscal surgery warrants a 10% rating under the 5259 code (cartilage, semilunar, removal of symptomatic), but there was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) to support a rating under that code.  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).  Therefore, there was no VASRD §4.71a route to a rating higher than 10% under any applicable code. 

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 0% for the degenerative arthritis left wrist, coded 5215, a disability rating of 10% for the degenerative arthritis, lumbosacral spine, coded 5292, and a disability rating of 10% for the degenerative arthritis left knee condition, coded 5259.  However, the combination of ratings does not offer any benefit to the CI.  Therefore, 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 degenerative arthritis left wrist, lumbosacral spine and left knee condition.  

BOARD FINDINGS:  In the matter of the degenerative arthritis left wrist, the panel unanimously recommends a disability rating of 0%, coded 5215 IAW VASRD §4.71a.  In the matter of the degenerative arthritis lumbosacral spine, the panel majority recommends a disability rating of 10%, coded 5292 IAW VASRD §4.71a. The single voter for dissent submitted the appended minority opinion.   In the matter of the degenerative arthritis left knee, the panel unanimously recommends a disability rating of 10%, coded 5259 IAW VASRD §4.71a, which since the aforementioned offers no benefit to the CI, the panel majority recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  The panel majority, therefore, recommends that there be no modification or no re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160203, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

Minority Opinion.  The majority found favor with a flexion of 75 degrees being mild or slight.  However, two prior documented measurements for flexion were 90 degrees and 80 degrees.  The range of motion of the lumbar spine is reported to be approximately 60 degrees based on the source.  Since 2003 the VASRD uses 90 degrees as the standard for forward flexion of the thoracolumbar spine, which requires a conversion of 30 degrees for lumbosacral flexion to be equivalent to thoracolumbar flexion.  That assumes there is no thoracic contribution to the lumbosacral flexion.  Therefore, to presume that lumbosacral flexion of 60 degrees was normal, then each of the measurements of 90 degrees, 80 degrees and 75 degrees would imply hyperflexibility, which was not the case clinically.  Furthermore, over a 3 month period there was a decrement in flexion, the cause of which the STR was silent.  However, if 90 degrees were considered normal even though the VASRD in effect at the time of separation did not indicate that as such, then the variation of 75 degrees from 90 degrees is not slight, which is the term used in the VASRD at the time of separation.  Slight has various meanings such as “inconsiderable small, modest, tiny, minute, inappreciable, negligible, insignificant, minimal, remote, slim, faint, razor-thin, miniscule, de minimis or exiguous.” (https://www.google.com/search?biw=968&bih=838&q=define+de+minimis&forcedict=de+minimis&sa=X&ved=0ahUKEwj9n9eT_avUAhXJdj4KHTNwDjkQ_SoINDAA)  In essence and in fact the forward flexion of 75 degrees is midway between moderate and mild/slight.  Therefore, mindful of VASRD §4.3 (reasonable doubt), a 20% rating is more appropriate than a 10% rating recommended by the majority especially in view of the CI’s MOS as a heavy equipment operator.  

Therefore, the minority voter recommends the ROP be modified as follows to read:

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	
Degenerative Arthritis Left Wrist	5215	0%	
Degenerative Arthritis Lumbosacral Spine	5292	20%	
Degenerative Arthritis Left Knee	5259	10%	
COMBINED	30%	

AR20170013285, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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.

A copy of this decision has been provided to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,					      
						      					
Enclosure