RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00925
BRANCH OF SERVICE:  aRMY 	SEPARATION DATE:  20041104

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve O2, Military Police, medically separated for “chondromalacia patella of the right knee” and “cervical and lumbosacral back pain,” rated 10% each, with a combined disability rating of 20%.   

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 - 20040830	VARD - 20050630	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chondromalacia Patella of the Right Knee	5099-5003	10%	Chondromalacia Patella Right Knee	5260	10%	20041027	
Cervical and Lumbosacral Pain	5243	10%	Bulging Disc at C5-6	5243	10%		
			Disc Bulge at L4-S1	5243	10%		
Pain Disorder	Not Unfitting	PTSD	9411	10%		
Depressive Disorder						
PTSD						
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Chondromalacia Patella of the Right Knee.  Review of the records shows that prior to service, the CI was the unrestrained driver in a head-on motor vehicle accident (MVA) in which he was seriously injured with a closed head injury (CHI) and loss of consciousness (LOC) at the scene.  He sustained a fracture of the left femur and right tibia (shin bone); both were treated surgically and hardware placed.  This was disclosed prior to accession and the CI was granted a waiver to participate in ROTC (reserve officer training corps).  He continued to have pain with normal training activities and subsequently had hardware removal with improvement in his symptoms.

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI continued to report right knee pain after commissioning.  Magnetic resonance imaging (MRI) on 24 August 2000 was normal.  X-rays and a bone scan were also noted to be normal.  The CI was seen by orthopedics and no pathology was noted other than expected post-operative changes.  The CI did report his pain was much better since he had stopped running.  The CI was referred to physical therapy (PT) which was beneficial.  He was also treated with a steroid injection; he continued to have some discomfort though.  The CI was cleared for deployment and seen in theater on 1 August 2003.  He reported chronic right knee pain which was aggravated by standing and not improved by medications.  He was seen in sick call and, after orthopedic consultation, it was recommended the CI be returned to his home station for further evaluation and treatment.  The right knee (as well as neck and back) was further injured following an improvised explosive device (IED) explosion near his Humvee on 4 August 2003.  An MRI on 10 September 2003 was unremarkable.  The CI was evaluated in orthopedics on 22 September 2003 and noted to have medial collateral ligament (MCL) tenderness with laxity.  He was referred for PT.  In primary care on 17 October 2003, the CI was noted to have a normal gait although flexion was reduced to 90 degrees (normal 140).  During a 29 October 2003 physical medicine clinic evaluation, the CI stated he experienced constant knee pain.  He reported that in the 4 August 2003 IED explosion, the driver had braked hard which forced the CI’s right knee into the seat in front of him.  The subsequent explosion knocked him about in the vehicle injuring his neck and back.  The physical examination (PE) showed the CI walked with a normal gait, showed no knee swelling and had normal strength.  Range of motion (ROM) measurements showed flexion to 90 and 110 degrees (normal 140) and extension to 0 degrees (normal 0).  There was no laxity noted, but possible meniscal damage was noted (positive McMurray).  Atrophy was absent.  In PT on 25 March 2004, the CI flexed to 120 degrees (115, 118, 120).  Extension measurements were not recorded.  

The MEB NARSUM performed on 3 August 2004, 3 months prior to separation, recorded the right knee pain began in July 2003 while the CI was deployed.  The panel observed the CI had reported right knee pain for several years prior to this.  It was also noted the CI was a policeman and EMT (emergency medical technician) in his civilian occupation.  On examination, the CI walked with a mildly antalgic gait (abnormal due to pain), but had a normal heel and toe walk.  The strength was reduced to 4/5 in the right lower extremity due to pain.  There was an audible “pop” with pressure in flexion and extension.  The knee was stable.  Testing for meniscal irritation was negative.  Passive flexion was 100-115 degrees and extension normal.  Atrophy was absent.  He was diagnosed with chondromalacia patella (CMP).  Painful motion was not recorded.  

At the 27 October 2004 VA Compensation and Pension (C&P) evaluation, 8 days before separation, the CI reported daily dull, aching pain without any problems with instability.  The CI stated he could only walk for 15 minutes at a time before needing to rest his knee, but did not use a brace or assistive device.  The PE revealed crepitus (grinding/grating) and tenderness to palpation, but atrophy and weakness were absent.  The gait was normal.  The ROM measurements showed flexion limited to 125 degrees, limited by pain, and extension to 0 degrees.  X-rays were not repeated.  The 9 November 2005 VA C&P spine evaluation noted the CI was again working as an EMT.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10%, coded analogously as 5003 (degenerative arthritis), citing the US Army Physical Disability Agency pain policy (AR 635-40).  The VA also rated the right knee condition 10%, coded 5260 (leg limitation of flexion), citing pain limited motion.  The CI was diagnosed with CMP although an MRI had been normal and no evidence of CMP was recorded.  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, there was 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 therefore no VASRD §4.71a route to a 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 right knee condition.

Cervical and Lumbosacral Back Pain.  The PEB combined the cervical and lumbosacral pain conditions under a single disability rating, coded 5243 (intervertebral disc syndrome) rated 10%.  This approach by the PEB reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications. 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 adjudicated by the PEB.  The evidence for the cervical and lumbosacral pain conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Cervical Pain.  According to the STR and the MEB NARSUM, the CI’s neck condition began in August 2003 after following an improvised explosive device (IED) explosion.  As noted above, the CI was in a MVA with a CHI and LOC prior to service, but there were no complaints of neck pain recorded until after the IED event.  At a 22 September 2003 orthopedic clinic evaluation the examiner noted the neck was not tender, the upper extremity functioning was within normal limits and the neck exhibited full ROM.  On 29 October 2003, the CI was evaluated in physical medicine.  He reported neck popping and pain since the IED explosion.  No neurological deficit was present from the neck injury.  X-rays and MRI studies on 12 November 2003 were normal other than a minimal disk bulge at C5-6 which did not impinge the cord or nerve roots.  He continued PT and on 17 December 2003, was noted to have 90% of normal extension, with 75% flexion and rotation.  Side bending was 50% of normal.  On 12 and 27 January 2004, the neck ROM was normal.  Formal ROM measurements taken in PT on 25 March 2004, showed the CI flexed to 35 degrees (normal 45) with a combined ROM of 175 degrees (normal 340), both after rounding.  

The MEB NARSUM examination, noted complaints of the CI being unable to wear body armor or stand for periods greater than 15 minutes and experienced frequent exacerbations of neck pain.  The PE showed the CI walked with a mildly antalgic gait and showed no signs of radicular symptoms.  The ROM measurements were not recorded on the NARSUM, but the MEB examination recorded on DD Form 2808 noted full ROM.  Tenderness was present.  The 13 August 2004 commander’s statement did not provide any specific information regarding any of the CI’s unfitting conditions.  The 12 August 2004 profile listed the CI’s neck condition and restricted the CI from performing all Army Physical Fitness Test events, move with a fighting load at least 2 miles wear a protective mask and construct an individual fighting position.  

At the 27 October 2004 VA C&P evaluation the CI reported experiencing a daily dull and achy pain.  He did not experience any spasms and had no significant dysfunction.  PE showed a normal gait, no spasms, normal motor and sensory functioning and tenderness at C3-4.   The CI flexed to 30 degrees and exhibited a combined ROM of 180 degrees.  
The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck and back condition combined at 10%, coded 5243 (intervertebral disc syndrome).  The VA rated the bulging disc at C5-6 condition 10%, coded 5243, based on the C&P examination 8 days before separation.  While this was the closest to separation, it was an outlier from multiple prior measurements with showed either a normal ROM or a slightly reduced ROM.  The panel concluded there was not a preponderance of evidence in the service records which overcame the presumption that the neck pain condition was reasonably considered separately unfitting.  The knee, neck, and back were specifically cited on the profile.  The panel then considered its rating recommendation for the unfitting neck condition at the time of separation.  The panel agreed a 10% rating, but no higher, was justified for limitation of flexion greater than 30 degrees, as reported on the majority of the examinations.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes which would provide for a higher rating under that formula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the cervical pain condition, coded 5237.  

Lumbosacral Back Pain.  According to the STR and the MEB NARSUM, the CI’s low back condition occurred following the same IED blast as mention previously.  As noted above, the CI was in a MVA with a CHI and LOC prior to service, but there were no complaints of back pain recorded until after the IED event.  A 29 October 2003 physical medicine evaluation showed the CI complained of low back pain (LBP).  The examination noted the CI was not tender to palpation, showed no radicular symptoms and had normal motor and sensory functioning.  The gait was normal.  Forward flexion was 80 degrees (normal 90).  Atrophy and tenderness were absent.  The neurological examination was normal.  On 12 November 2003, an MRI showed a small disc herniation at L5-S1 causing neuro-foraminal narrowing.  The CI was noted by PT to have slight limited lumbosacral motion on 12 and 27 January 2004.  A slight reduction in knee extension strength was present bilaterally.  At a 29 January 2004 primary care clinic appointment, lumbar ROM showed normal flexion, extension reduced 5 degrees (normal 30), and normal lateral bending.  In PT on 25 March 2004, flexion was 65 degrees and the combined ROM was 200 degrees after rounding, at the end of 3 trials.  

The MEB NARSUM examination noted complaints of constant pain.   The examination showed the CI walked with a mildly antalgic gait.  There were no radicular symptoms.  ROM measurements were not taken, but the examiner noted there was decreased lumbar flexion and extension secondary to pain.  The 13 August 2004 commander’s statement did not provide any specific information regarding any of the CI’s unfitting conditions.  The 12 August 2004 profile listed the CI’s back condition and restricted the CI from performing all Army Physical Fitness Test events, move with a fighting load at least 2 miles wear a protective mask and construct an individual fighting position.  The knee, neck, and back were specifically cited.  

The 9 November 2005 C&P evaluation revealed the CI experienced constant low back pain radiating to the left leg.  No assistive device was in use.  The examination showed the CI did not exhibit painful motion, but did experience tenderness to palpation of the sacral notch.  Muscle spasms were noted.  The examination was silent on the CI’s gait or altered spinal contour though.  Motor and sensory functioning were normal.  ROM measurements showed the CI forward flexed to 80 degrees and had a combined ROM of 230 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the cervical and lumbosacral condition 10%, coded 5243.  The 30 June 2005 VA rating decision rated the disc bulge at L4-5 condition 0%, coded 5243, based on the C&P examination 8 days before separation, citing the 27 October 2004 C&P lacking a thoracolumbar examination.  A follow-up 17 January 2006, 12 months post-separation, VA rating decision rated the lumbar strain condition 10%, coded 5243, citing limited forward flexion.  The panel concluded there was not a preponderance of evidence in the service records which overcame the presumption that the bundled neck condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting neck condition at the time of separation.  The panel agreed a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the 29 October 2003 physical medicine, NARSUM and 9 November 2005 examinations.  It was noted that muscle spasm was present on the 9 November 2005 VA C&P examination, however there was not an associated abnormal gait or abnormal spinal contour to support the next higher rating of 20%.  There was no documentation of intervertebral disc syndrome (IVDS) with incapacitating episodes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the lumbosacral back pain condition, coded 5237.  

Contended PEB Conditions:  Pain Disorder, Depressive Disorder and PTSD.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended mental health conditions were not unfitting.  The profile was S1 and the mental health conditions were found to meet retention standards.  The commander’s statement was non-specific, but noted the profile.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended mental health conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the chondromalacia patella of the right knee condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the cervical pain condition, the panel unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the lumbosacral back pain condition, the panel unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the contended pain disorder, depressive disorder and PTSD conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  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, 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	
Chondromalacia Patella of the Right Knee	5099-5003	10%	
Cervical Pain	5237	10%	
Lumbosacral Back Pain	5237	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160922, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170017364, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to recharacterize 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 recharacterization 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