RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00668
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041212

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a mobilized National Guard E6, Track Vehicle Repairer, medically separated for “radiating low back pain” and “bilateral osteoarthritis of the knees with chronic knee pain” rated 10% each, with a combined disability rating of 20%.  

CI CONTENTION:  “PTSD, did not fight it.  After being held in med hold for 6 months (unjust), nerves, back, neck, and knees.”  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 - 20041008	VARD - 20060213	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Radiating Low Back Pain	5237	10%	Lumbar Degenerative Joint Disease (DJD) with Bulging L3-L4	5242	20%	20060125	
Bilateral Osteoarthritis of the Knees	5003	10%	DJD of Right Knee, Left Knee, Right Foot and Left Foot	5003	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Radiating Low Back Pain (LBP).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s LBP condition began in August 2003 after heavy lifting.  A 12 July 2004 orthopedic consultation, 5 months before separation, noted complaints of LBP that radiated to both feet with range of motion (ROM) “essentially within normal” with positive straight leg raise (SLR) testing to elicit nerve tension signs bilaterally.  There was normal strength and reflexes in the lower extremities.  On 13 July 2004, magnetic resonance imaging (MRI) studies showed multilevel degenerative disc disease with mild to moderate bilateral foraminal narrowing and likely impingement of the left S1 nerve root.  A 3 August 2004 neurosurgical evaluation, 4 months before separation, noted full ROM with near normal flexion described as fingertips to floor with gap of 5 centimeters, normal strength, and normal neurological finding.  SLR testing was negative for radiculopathy.  No surgery was recommended.  A 9 September 2004 nerve conduction study of both lower extremities was normal.  

During the 9 September 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported back pain with tingling of the bilateral legs and bilateral foot cramps since deployment in August 2003.  Physical examination showed diffuse tenderness of the lumbosacral spine with “limited ROM” and negative SLR.  Physical therapy measured ROM with a goniometer for the MEB on 14 September 2004, 3 months before separation, and thoracolumbar ROM (after three repetitions) was flexion 35 degrees and combined ROM of 145 degrees (normal 240).  

At the time of a spine center clinic appointment on 21 September 2004, the CI obtained a second neurosurgical opinion which is not in record. He reported that lumbar fusion surgery was recommended, but he was advised to stop tobacco use first.  Physical examination reported severe restriction of motion, but no ROM measurements were recorded.  The CI had no spasm, no deformity, and normal strength in his lower extremities.  SLR testing was negative for radiculopathy.

The 23 September 2004 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant low grade (1-3/10 at rest) aggravated by activity, with bilateral lower extremity radiation.  The physical examination showed a normal gait.  The CI was able to heel and toe walk.  There was diffuse tenderness of the lumbosacral spine and the sacroiliac joints.  There was positive SLR to elicit nerve tension signs bilaterally.  Strength, sensation, and reflexes were normal.  There were no muscle spasms noted on palpation.  No ROM measurements were recorded.  

At the 25 January 2006 VA Compensation and Pension (C&P) evaluation, 13 months after separation, the CI reported progressive LBP, with occasional radiation to the left leg and cramping and pain of the arches of the feet.  The physical examination showed a normal gait, no abnormal spinal curvatures and no ankylosis.  The lumbar spine was tender without muscle spasm.  The CI had a negative SLR on the right and a positive SLR on the left.  ROM measurements showed a flexion of 70 degrees, and combined ROM 175 degrees, with painful motion that started at 40 degrees flexion noted.  The pre-printed VA examination form asked, “Is there additional LOM (loss of motion) on repetitive use of the joint due to pain, fatigue, weakness, or lack of endurance” and the examiner responded “yes.”  The pre-printed form stated “estimate how much additional LOM results” and the VA examiner responded “flexion 0-40.”  No neurologic abnormalities of either lower extremity were noted.  The CI was self-employed as a retail store owner and had not lost any time from work due to the condition in the past 12 months.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the LBP condition 10%, coded 5237 (lumbar spine strain), citing ROM limited by pain and a negative electromyography for radiculopathy.  The VA rated the LBP condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination 13 months after separation, citing “consideration given to pain, your forward flexion is 40 degrees and your combined range of motion is 130 degrees.  Additionally, there are some minimal limits on motion due to repetitive use.  Giving you the benefit of the doubt and with due consideration for the pain on movement.”  

There was no evidence of muscle spasm severe enough to result in an abnormal gait or abnormal spinal contour at any of the examinations cited above for a higher rating on this basis.  The panel therefore focused its discussion on the ROM evidence in record.  The orthopedic and neurosurgical evaluations, 4 and 5 months before separation, respectively, documented near normal back ROM.  The PT MEB goniometric ROM measurements, 3 months before separation showed flexion of 35 degrees with repetition.  The VA examination, 13 months after separation, noted flexion 70 degrees, which decreased with repetition to 40 degrees.  It was unclear to all panel members whether the VA examiner observed this deceased ROM or estimated it, based on the wording of the VA pre-printed form.  However, the examiner did not indicate that it was estimated and just documented after repetition flexion was 40 degrees.  

The panel majority conceded reasonable doubt to the CI and took from this examination that the CI’s flexion after repetition was 40 degrees as did the VA.  Based on this evidence, the panel majority placed greater probative value on the PT MEB ROM and the VA ROM because ROM was documented after repetition, which was not evaluated at either the orthopedic or neurosurgical evaluations.  Therefore, the panel majority agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on both the PT MEB ROM evaluation and the VA examination.  Although there was evidence of intervertebral disc syndrome (IVDS), there was no evidence of incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 20% for the LBP condition, coded 5237.  

Bilateral Osteoarthritis of the Knees.  The PEB combined the right and left knee conditions under a single service disability rating, coded 5003 (degenerative arthritis) and rated 10%.  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 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 STR and MEB NARSUM, the CI’s knee conditions began in March 1998 after injuring his right knee while falling down a hill.  Subsequent to his injury, the CI underwent arthroscopic surgery of both knees for meniscal tears.  A 14 July 2004 surgical consult, 5 months before separation, noted the CI had bilateral knee arthritis “which has been relatively stable.”  He was able to walk a half mile without difficulty but could not run.  He was not taking any anti-inflammatory medications for his knee pain.  Bilateral knee ROM measurements showed an extension of 0 degrees (normal) and flexion of 130 degrees (normal 140).  There was bilateral patellofemoral crepitus and medial femoral condyle tenderness.  There was no locking or catching noted.  There was no evidence of instability or meniscal pathology.  The CI had a permanent L3 profile for the bilateral knees since 1998.  Bilateral knee radiographic (X-ray) studies showed medial compartment and patellofemoral arthritis.  

The 14 September 2004 permanent profile listed bilateral knee pain.  The 23 September 2004 commander’s statement implicated the bilateral knees as impairing the CI’s ability to perform the duties required of a soldier and his military specialty.  The MEB NARSUM examiner and the MEB indicated the bilateral knees fell below retention standards.  

The 23 September 2004 MEB NARSUM examination noted complaints of continuous pain graded 3-4/10, aggravated by strenuous activity.  The physical examination showed a normal gait.  The CI was able to heel and toe walk.  There was no swelling or effusion of the knees.  There was no evidence of instability or meniscal pathology of either knee.  Physical therapy measured ROM for the MEB on 14 September 2004, 3 months before separation, and bilateral knee ROM was flexion of 150 degrees and extension lacking 5 degrees.

At the C&P evaluation the CI reported pain, stiffness, limited motion, swelling and occasional locking of the knees when kneeling.  The physical examination showed a normal gait.  There was crepitus of both knees.  Bilateral knee ROM measurement showed a normal flexion of 140 degrees and a normal extension of 0 degrees.  There was no painful motion of the knees or additional loss of knee ROM with repetition noted.  Bilateral knee X-rays showed degenerative changes and were otherwise unremarkable.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 10%, coded 5003 (degenerative arthritis), citing full ROM and good stability. The VA rated DJD of the right knee, left knee, right foot and left foot 10%, coded 5003 (degenerative arthritis), based on the C&P examination 13 months after separation, citing X-ray evidence of two or more major joints or groups of minor joints without pain or limited motion.  

The panel first considered if each of the knees, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that each the bundled knee conditions was reasonably considered separately unfitting.  The clinical findings of the knees relevant to rating were identical and the panel considered its rating recommendation for the unfitting right and left knee conditions together at the time of separation.

The PEB rated bilateral osteoarthritis of the knees with chronic knee pain and assigned a 10% rating for two or more major joints coded 5003.  Therefore, the panel reviewed to see if a higher rating for either knee alone or combined was supported by the evidence.  There was no evidence of occasional incapacitating episodes to support a bilateral 20% rating under 5003.  There was no evidence of painful, limited motion of either the right or left knee for a 10% rating for each knee coded as 5003 or to support a 10% rating for limitation of leg flexion (5260) or limitation of leg extension (5261), based on §4.59, §4.40 and §4.45.  The CI had a remote history of surgery for meniscectomy of both knees, but the evidence proximate to separation supports that the knee disability at separation was related to osteoarthritis and there was no evidence of meniscal symptoms at the MEB NARSUM or VA examinations.  

The panel concluded there was no higher rating available for the knee arthritis conditions than 10% for the bilateral knees.  Therefore, after having unbundled the knees, the panel found there was no rating benefit to the CI and recommends no change to the PEB’s combined adjudication.  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 bilateral knee condition.  

BOARD FINDINGS:  In the matter of the radiating LBP condition, the panel majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the bilateral osteoarthritis of the knees 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 majority 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	
Radiating LBP	5237	20%	
Bilateral Osteoarthritis of the Knees	5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160912, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

	

MINORITY OPINION:  

The minority dissent with the majority recommendation is based on the totality of the evidence in the STR; and, consistent with that evidence, the minority contends that the PEB appropriately rated the condition at 10%. 

At the MEB NARSUM examination on 23 September 2004, 3 months before separation, the examination showed the CI had a normal gait, normal sensation, normal reflexes, and no evidence of muscle spasms or atrophy.  

The majority’s rating recommendation was based on PT ROM measurements that showed a flexion of 35 degrees.  However, the minority member asserts this isolated measurement was not corroborated by symptoms, the expected associated physical findings, or the preponderance of all other STR evidence.  The combined ROM of 145 degrees does not meet the criterion for a VA rating of 20%, in which the combined ROM must not be greater than 120 degrees.  Additionally, the CI did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  With only one flexion measurement in evidence, it is speculative to accurately rate the radiating low back pain based on the majority’s recommendation of 20%, with all other evidence pointing to a 10% rating.       

There was no other evidence to support a 20% rating.  The CI initially hurt his back in August 2003, and successfully completed his deployment and returned from Iraq in July 2004.  There was no evidence of a permanent profile until the CI returned from Iraq to demobilize.   At which time a surgery consult on 12 July 2004 indicated that the CI’s ROM was within normal limits.  A neurological examination in August 2004 showed full ROM with a 90-degree flexion.  

However, PT examination in August and September showed a flexion limited to 40 degrees and 35 degrees, with no evidence of an additional injury, or explanation of the severe decrease in flexion.  There was no other evidence at the PT examinations to support a 20% rating, no muscles spasms, no abnormal gait, or abnormal curvature of the spine.  Combined ROM of 145 degrees at these two examination further supports a 10% rating.  

The C&P examination showed that the CI had a flexion of 70 degrees and a combined ROM of 175 degrees.  There were no muscle spasms, no abnormal curvature of the spine, and the CI had a normal gait.  The VA examiner estimated that after repetition the flexion would have decreased to 40 degrees; however, it was clear that this estimate was unduly speculative, since there was no evidence of ROM measurements taken after repetitive motion. 

The minority member asserts that the majority’s 20% recommendation is premised on a single measurement of thoracolumbar flexion that is insufficiently probative, as elaborated above, to justify the higher rating, even with due consideration of reasonable doubt.  Based on the evidence before separation, the normal gait and spinal curvature and the combined range of motion of 145 degrees satisfied 10% criteria as appropriately adjudicated by the PEB.  

The Secretary is respectfully requested to consider the minority recommendation that there be no re-characterization of the CI’s disability determination. 

AR20170016915, XXXXXXXXXXXXXXXXXX

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Dear XXXXXXXXXXXXXXXXXX:	

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and recommended that your percent of disability be increased to 30%.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I regret to inform you that I reject the Board’s majority recommendation and accept the Board’s minority opinion as accurate that your final Physical Evaluation Board disability rating remains unchanged.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations. 

	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,

Enclosure