RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00285
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030923

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Operating Room Specialist, medically separated for “chronic low back pain” and “right knee pain,” with a combined disability rating of 10%.

CI CONTENTION:  The CI contended for her back and knee 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 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 - 20030507	VARD - 20050128	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain, Right Knee Pain	5099-5003	10%	Severe Chondromalacia of the Right Patellofemoral Joint	5261-5260	20%	20041109	
			Lumbar Strain	5237	10%	20040623	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain and Right Knee Pain.  The PEB combined the chronic low back pain (LBP) and right knee pain conditions under a single disability rating, coded 5099-5003 (analogous to degenerative arthritis) and rated 10% with application of the US Army Physical Disability Agency pain policy and AR 635-40 B24.f.  This 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 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 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 chronic LBP and right knee pain conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Chronic LBP.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s chronic low back condition began in May 2000 when she was lifting a piece of equipment in the operating room after which she fell backward and the machine fell on her.  Plain film x-rays in June 2002 and magnetic resonance imaging (MRI) in August 2002 were reported as normal.  There was no surgical indication and conservative treatment with physical therapy, anti-inflammatory medications, muscle relaxers and activity limiting profiles did not result in sufficient resolution of symptoms.  

At the 15 August 2002 physical therapy evaluation, 13 months prior to separation, the physical examination was significant for a normal gait and the trunk flexion (does not specify segment) was decreased by 25-50% and other trunk movements were noted to be normal.  The examiner noted tenderness to palpation at L5-S1 and no muscle spasms.  The 20 November 2002 MEB NARSUM examination, 10 months prior to separation, noted complaints of constant LBP that was made worse with activity and better with rest.  Physical examination showed full range of motion with no paravertebral muscle spasms.  There was tenderness to palpation in a band across the lumbosacral junction of the spine.  Her gait was normal.  

At the 23 June 2004 VA Compensation and Pension (C&P) evaluations, 9 months after separation, the CI reported daily LBP with “a little stiffness.”  Pain was worsened with “extreme house work activities” such as sweeping, vacuuming and anything that required frequent movement and bending of the back.  She was not taking any medication for her back.  No physical examination was recorded.  

The panel directed attention to its rating recommendation based on the above evidence.  The panel first considered if the LBP, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The commander’s statement was not helpful in determining if separate conditions were unfitting as it listed only “physical condition” as preventing her from performing duties required of the CI’s MOS.  The permanent profile does list chronic LBP and lists restrictions of no lifting more than 20 pounds and standing for more than 10 minutes which are both required for an operating room technician.  Panel members agreed that the evidence reasonably justified that the functional limitations associated with the LBP contributed to the CI’s inability to perform her military duties.  Accordingly, a separate disability rating is recommended.  

The PEB bundled the chronic low back and right knee conditions together, and applied a single 10% rating, coded 5099-5003 (analogous to arthritis, degenerative), citing “rated for pain as moderate and frequent,” criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  

The VA rated the chronic low back condition 10% coded 5237 (lumbosacral strain), based on the VA C&P examination 9 months after separation, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour.  There was limitation of motion of the lumbar spine that panel members agreed should be characterized as slight for a 10% rating but not moderate to justify a 20% rating using code 5292 (spine, limitation of motion of, lumbar) based on examinations proximate to separation.  The panel agreed that it would also be possible to grant a 10% rating but no more using code 5295 (lumbosacral strain) based on characteristic pain on motion but that it provided no rating advantage to the CI.  There was no evidence of intervertebral disc syndrome with incapacitating episodes to indorse a rating using that code (5293).  After due deliberation, and considering all of the evidence, the panel recommends a separately unfit determination with a disability rating of 10% for the LBP condition.  

Right Knee Pain.  According to the STR and the MEB NARSUM, the CI’s right knee pain condition began in May 1999, while in technical school with no inciting trauma or injury.  The CI attended physical therapy multiple times in the ensuing 4 years with no improvement in symptoms.  At the 15 August 2002 physical therapy evaluation, 13 months prior to separation, the physical examination was significant for a normal gait and full active range of motion of both lower extremities.  Painful motion was not addressed.  The 20 November 2002 MEB NARSUM examination, 10 months prior to separation, noted complaints of constant right knee pain that was made worse with activity and better with rest.  Physical examination showed a normal knee examination; however, range of motion and painful motion were not addressed.  Her gait was normal.  

At the 9 November 2004 VA Compensation and Pension (C&P) joint evaluation, 13 months after separation, the CI reported right knee pain with standing more than 30 minutes, squatting and using stairs.  She also complained of stiffness on sitting for extended periods of time.  Physical examination showed extension to 0 degrees (normal) and flexion to 95 degrees (normal 140) limited by pain.  The examiner noted crepitation with squatting and painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The panel next considered if the right knee pain, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Again, the commander’s statement was not helpful in determining if separate conditions were unfitting as he listed only “physical condition” as preventing her from performing duties required of the CI’s MOS.  The permanent profile does not list right knee pain; however, the restrictions on the permanent profile of no standing for more than 10 minutes which is required for an operating room technician and walk at own pace and distance were largely due to knee pain provoked by these activities.  Panel members agreed that the evidence reasonably justified that the functional limitations associated with the right knee pain contributed to the CI’s inability to perform her military duties.  Accordingly, a separate disability rating is recommended.  

The PEB bundled the chronic low back and right knee conditions together, and applied a single 10% rating, coded 5099-5003 (analogous to arthritis, degenerative), citing “rated for pain as moderate and frequent”, criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  
The VA rated the chronic right knee pain condition 20% dual coded 5261-5260 (leg, limitation of extension of - leg, limitation of flexion of), based on the C&P examination 13 months after separation, citing leg flexion limited to 30 degrees or extension of the leg limited to 15 degrees. 

There was no limitation of motion in the evaluations proximate to separation which attained a minimum rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  There was no reported radiographic evidence of arthritis for a 10% rating using code 5003.  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, 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).  There was evidence of painful motion with functional loss supporting a minimum, 10% rating (based on §4.59, §4.40 and §4.45).  No additional functional limitation was evidenced by the examinations.  After due deliberation, and considering all of the evidence, the panel recommends a separately unfit determination with the majority recommending a disability rating of 10% for the right knee pain condition, coded 5260.  

BOARD FINDINGS:  In the matter of the LBP condition, the panel unanimously recommends that it be separately adjudicated as a separately unfitting condition coded 5292 and rated 10% IAW VASRD §4.71a.  In the matter of the right knee pain condition, the panel majority recommends that it be separately adjudicated as a separately unfitting condition coded 5260 and rated 10% IAW VASRD §4.71a.The single voter for dissent recommended a 0% rating for the right knee condition 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 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	5292	10%	
Right Knee Pain	5260	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140302, with attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170015251, 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