RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00892
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20041103

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Network Switching Systems Operator, medically separated for “chronic low back pain” and “chronic bilateral knee pain,” rated 10% each, with a combined disability rating of 20%. 

CI CONTENTION:  No specific contention made.  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 - 20040802	VARD - 20050131	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Chronic Low Back Pain…	5237	40%	20041220	
Chronic Bilateral Knee Pain	5099-5003	10%	Osgood-Schlatter’s Disease…	5257-5262	10%		
			PFS, Right Knee	5257	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Low Back Pain (LBP).  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s LBP began in November 1998 without specific injury or trauma.  Radiological studies showed an old hyperflexion injury and some possible fractures and avulsion of the L5 region.  There was no bulging, herniation, narrowing of the nerve root passes, impingement or radiculopathy noted.  At a 7 May 2004 primary care visit, 6 months prior to separation, the CI had “decreased” spine range of motion (ROM) and tenderness of the lumbar spine.  

The 22 June 2004 MEB NARSUM examination, 5 months prior to separation, noted complaints of LBP interfering with duty.  The physical examination showed a normal gait and intact heel and toe walk.  There was tenderness in the lumbar spine and over the sacroiliac joints.  The ROM showed forward flexion of 90 degrees (normal) and combined ROM of 235 degrees (normal 240) with pain.  The straight leg raise testing (SLR) for radicular signs was negative and strength, reflexes, and sensory testing were normal.  

At the 20 December 2004 VA Compensation and Pension (C&P) evaluation, 1 month after separation, the CI reported constant dull LBP.  The CI noted flare-ups twice weekly and stiffness.  He did not miss any work within a 12-month period due to back pain.  The physical examination showed a normal gait.  There was back tenderness and mild spasm.  Back ROM was painful, and following exercise showed forward flexion of 45 degrees and combined ROM of 150 degrees.  SLR was negative and the neurologic examination was normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5237 (lumbosacral strain), citing combined ROM of 245 degrees and tenderness.  The VA rated the back condition 40% coded 5237 (lumbosacral strain), based on the C&P examination 1 month after separation, citing a forward flexion of 30 degrees or less.  

The panel deliberated on the probative value of the disparate examinations in evidence.  Members agreed the NARSUM examination was more consistent with both outpatient notes and the preponderance of the evidence of record, and more reflective of the CI’s disability picture proximate to separation.  The panel therefore relied more heavily on the MEB measurements.  The panel agreed a 10% rating, but no higher, was justified for tenderness or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the MEB examination.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.  

Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single service disability rating, analogously coded 5099-5003 and rated 10% with application of the USAPDA pain policy (USAPDA) and AR 635-40 B24.f.  The PEB additionally noted that this condition, also known as Osgood Schlatter’s Disease, existed prior to service (EPTS) but was subsequently aggravated by service.  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 STR and MEB NARSUM, the CI’s bilateral knee condition began in July 1998 after falling during basic training.  Radiological studies of the knees were normal and there was no surgical indication.  

During the 7 May 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 6 months before separation, the CI reported knee pain that was considered Osgood-Schlatter’s disease.  The MEB physical examination noted tender bilateral tibial tuberosities and a history of Osgood- Schlatter’s disease. The MEB NARSUM examination on 22 June 2004, 5 months prior to separation, noted complaints of worsening knee pain during deployment.  The physical examination showed tenderness to the tibial tuberosity bilaterally.  There was painful ROM of each knee, with right knee flexion to 120 degrees and left knee flexion to 115 degrees.  

At the 20 December 2004 VA Compensation and Pension (C&P) evaluation, performed 1 month after separation, the CI reported fatigue, mild effusion, stiffness, weakness, and “giving out.”  X-ray of the left knee showed probable Osgood-Schlatter’s disease and the right knee was normal.  The physical examination showed each knee had a mild effusion, pain with patellar ballottement and painless ROM of 0-90 degrees (normal 0-140).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 10%, analogously coded 5099-5003 (degenerative arthritis), citing the USAPDA pain policy and EPTS with service aggravation.  The VA separately rated each knee condition with the left knee rated 10% analogously coded 5257-5262 (tibia and fibula impairment) and the right knee rated 0%, coded 5257 (knee impairment), based on the C&P examination 1 month after separation, citing fatigability and pain with 90 degrees of flexion for the left knee and no instability for the right knee, respectively.  

In this case, both knees were considered to fail retention standards, both were implicated by the NARSUM and the commander’s statement, and both were profiled.  The STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either knee over the other.  Since undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with the performance of military duties, members agreed each knee was reasonably justified as separately unfitting.  Members also agreed that coding and rating features were essentially identical.  

There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261) for either knee.  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for each knee.  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 therefore no VASRD §4.71a rating higher than 10% for each knee under any applicable code.  

After due deliberation, and considering all of the evidence, the panel recommends a disability rating of 10% for the right knee and 10% for the left knee, analogously coded 5099-5003.  

BOARD FINDINGS:  In the matter of the LBP condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the bilateral knee condition, the panel unanimously recommends each knee be separately adjudicated as follows:  an unfitting right knee analogously coded 5099-5003 and rated 10%, and an unfitting left knee analogously coded 5099-5003 and rated 10%, both IAW VASRD §4.71a.  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 LBP	5299-5237	10%	
Left Knee Pain	5099-5003	10%	
Right Knee Pain	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160915, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170018116, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,					      
Enclosure