RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00443
BRANCH OF SERVICE:  NAVY 	SEPARATION DATE:  20060418

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Cryptologic Maintenance Technician, medically separated for “left knee pain” with a disability rating of 10%.  “Chronic low back pain” was determined to have existed prior to service (EPTS) and was not rated.  

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 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 - 20051121	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Pain	5299-5003	10%	No VA Examination Proximate to Separation in Evidence	
Left Knee Status Post Trochlear Osteochondral Allograft Placement	Category II		
Chronic Low Back Pain	EPTS		
COMBINED RATING: 10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Left Knee Pain.  According to the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent left knee surgery in June 2004 for open osteochondral allograft at the site of a lateral trochlear osteochondral defect (damage of the articular cartilage and underlying bone).  He had two follow-up arthroscopic surgeries in August 2004 and February 2005.  During the 25 May 2005 MEB NARSUM examination, 11 months prior to separation, the CI reported the inability to run due to left knee pain and the need for a cane to ambulate.  Physical examination showed a mild effusion of the left knee.  ROM was 125 degrees of flexion (normal 140) and 0 degrees of extension (normal).  Painful motion was not recorded.  At the time of his 26 October 2005 orthopedic clinic appointment, 6 months before separation, the CI reported left knee pain with standing or walking more than 45 minutes.  He endorsed left knee swelling and giving way but no locking and walked with a cane.  There was no VA examination in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The formal PEB rated the left knee condition 10%, coded 5299-5003 (analogous to degenerative arthritis).  The PEB also listed “left knee status post trochlear osteochondral allograft placement” as a related Category II condition (a condition that contributed to the primary unfitting condition but was not separately ratable).  The impairment from the “left knee status post trochlear osteochondral allograft placement” was properly subsumed under the overall rating for the left knee condition IAW §4.14 (avoidance of pyramiding; more than one rating based on the same impairment is prohibited).  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  There was no documented evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  There was no history or evidence 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 those 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 no VASRD §4.71a rating higher than the 10% adjudicated by the PEB under any applicable code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the left knee condition.  

Chronic Low Back Pain (LBP).  According to the STR and MEB NARSUM addendums, the CI first sought treatment for his LBP in August 2005 at the MEB examination for the left knee condition.  No injury or trauma was noted.  During the 25 May 2005 MEB examination the CI reported low back pain attributable to an abnormal gait due to the left knee condition.  Physical examination of the spine was recorded as normal.  At the 19 August 2005 physical therapy (PT) appointment, 8 months prior to separation, the CI reported LBP that had been present for 6 months and constant in the prior 3 weeks.  The examiner noted normal lumbar ROM with pain on flexion.  At the 13 September 2005 PT appointment, X-rays showed no evidence of lumbosacral pars defect (stress fracture of part of the vertebra).  Active lumbar ROM was recorded as flexion to 30 degrees (normal 60) and combined ROM of 120 degrees (normal 240) after repetitive motion.  An MRI on 12 October 2005 showed grade I spondylolisthesis (one vertebra slipping forward over another) of L5 relative to S1 based on a bilateral L5 spondylolysis (stress fracture of a small part of the vertebra), with exiting L5 nerve roots appearing to be impinged upon and conjoined nerve root anatomy at that level.  It also showed mild to moderate facet arthropathy (degenerative arthritis that affects the facet joints in the spine) at L3-L4 and L4-L5. 

The 26 October 2005 NARSUM addendum by orthopedics, 6 months prior to separation, the noted complaints of constant LBP.  Physical examination showed he was grimacing and appeared uncomfortable with ambulation.  He had tenderness along his thoracolumbar spine but there was no mention of spasm.  ROM measurements of the thoracolumbar spine showed flexion to 30 degrees (normal 90) and combined ROM of 140 degrees (normal 240) with painful motion.  The examiner cited examination findings where pain was out of proportion to the examination being performed.  

On 1 December 2005, a second NARSUM addendum was prepared by a spine surgeon at the CI’s request in support of his petition for relief.  The CI reported that he had sustained several falls due to his painful knee giving out.  Physical examination showed an antalgic gait to the left.  There was tenderness over the spinous processes bilaterally but no report of spasm.  ROM measurements were reported as lumbar (not thoracolumbar) flexion less than 20 degrees and extension as essentially 0 degrees due to radicular pain.  Spinal contours were normal.  Of note, the examiner stated that the CI “may have had exacerbation of his preexisting spondylolisthesis by his multiple falls exacerbating disk degeneration possibly resulting in an annular tear and further compression of the L5 nerve roots as they exit the foramen bilaterally.”  

The panel first considered if the PEB determination that the back condition was EPTS and was not permanently service aggravated by military service.  The Formal PEB stated that accepted medical principles indicated the diagnosis was a congenital condition and that its natural progression can include the development of pain that is independent of level of activity.  The panel noted that a presumption of service aggravation may only be overcome by competent medical evidence (with such evidence based upon accepted medical principles as opposed to medical opinion) establishing by a preponderance of medical evidence that the natural progression of a pre-existing condition was unaltered by any consequence of military service IAW DOD 1338.32 E3.P4.5.2.3.  The panel noted there was no mention of back pain and no findings associated with back pain at enlistment in 1998 and the first mention of LBP in the STR was in 2005.  The MRI study proximate to separation showed facet arthropathy at two levels.  The MEB examiner attributed the LBP to an abnormal gait due to the unfitting knee condition and the spine surgeon opined that falls associated with the unfitting knee condition exacerbated the back condition.  Therefore, the panel finds the preponderance of evidence shows the back condition to be service incurred or aggravated and as such recommends an additional disability rating.  

The panel considered the probative value of the seemingly disparate examinations.  While the 1 December 2005 examination was more proximate to separation, it reported lumbar and not thoracolumbar ROM and as such had less probative value for determining a rating.  The panel majority agreed that a 40% rating was justified for limitation of flexion not greater than 30 degrees as reported on the 26 October 2005 MEB NARSUM and PT examinations.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 40% for the back condition, coded 5239 (spondylolisthesis or segmental instability).  

BOARD FINDINGS:  In the matter of the back condition, the panel majority recommends a disability rating of 40%, coded 5239 IAW VASRD §4.71a.  The single voter for dissent recommends modification of the back condition to 20% and elected not to submit a minority opinion.  In the matter of the left knee condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends 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 	5239	40%	
Left Knee Pain	5299-5003	10%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160701, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

MEMORANDUM FOR DEPUTY COMMANDANT (Manpower and Reserve Affairs)
		   COMMANDER, NAVY PERSONNEL COMMAND	
	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:  (a) DoDI 6040.44
	(b) PDBR ltr dtd 13 Oct 17 ICO XXXXXXXXXXXXXXXXXX  
	(c) PDBR ltr dtd 08 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(d) PDBR ltr dtd 06 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(e) PDBR ltr dtd 07 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(f) PDBR ltr dtd 07 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(g) PDBR ltr dtd 06 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(h) PDBR ltr dtd 07 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(i) PDBR ltr dtd 08 Mar 18 ICO XXXXXXXXXXXXXXXXXX
	(j) PDBR ltr dtd 08 Mar 18 ICO XXXXXXXXXXXXXXXXXX

1.  Pursuant to reference (a), the recommendations of the Physical Disability Board of Review set forth in references (b) through (j) are approved.  The official records of the following individuals are to be corrected as follows:

     a. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.   

     b. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge. 

     c. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent rating (increased from 20 percent) effective date of discharge. 

     d. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 40 percent rating (increased from 10 percent) effective date of discharge.       

     e. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 10 percent) effective date of discharge.

     f. XXXXXXXXXXXXXXXXXX, former USN: Placement on the Permanent Disability Retired List with a 50 percent rating (increased from 10 percent) effective date of discharge.  

     g. XXXXXXXXXXXXXXXXXX, former USMC: Placement on the Permanent Disability Retired List with a 30 percent rating (increased from 10 percent) effective date of discharge.   

     h. XXXXXXXXXXXXXXXXXX, former USN: Entitlement to disability separation pay with a 20 percent disability rating (increased from 0 percent) effective date of discharge.
	
     i. XXXXXXXXXXXXXXXXXX, former USMC: Entitlement to disability separation pay with a 10 percent disability rating (increased from 0 percent) effective date of discharge.
 
2.  Please take action to implement these decisions and provide notification to the above individuals once those actions are complete.