RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01735
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20040718

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E6, Infantryman, medically separated for “bilateral knee pain” and “chronic back and neck pain,” rated 10% each, with a combined disability rating of 20%. 

CI CONTENTION:  “There is currently a large discrepancy between the individual and overall ratings given by the VA…”  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 Medical Evaluation Board (MEB), but determined by the PEB 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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for 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, which operates 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 disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040423	VARD - 20040928	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	Chondromalacia Patella, Right Knee	5299-5257 	10% 	20040624 	
			Chondromalacia Patella, Left Knee	5299-5257 	10% 	20040624 	
Chronic Back, Neck Pain	5243	10%	Degenerative Joint Disease (DJD) Cervical Spine…	5299-5242	10%	20040624	
			DJD Lumbar Spine…	5242	10%	20040624	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40% 	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded analogously to 5003 (degenerative arthritis) and rated 10%; and also combined the back and neck conditions under a single disability rating, coded 5243 (intervertebral disk syndrome) and 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 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 right and left knee, and back and neck conditions, is presented together with attendant recommendations regarding separate unfitness, and separate rating if indicated. 

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent left knee arthroscopy in February 2003 for a suspected medial meniscal tear (MMT), which was not found; however, medial femoral condyle (MFC) chondromalacia was observed.  He underwent a second left knee arthroscopy in August 2003, which again showed no MMT evidence, but abundant scar tissue around the anterior joint line was found and debrided.  The CI continued to report left knee pain and swelling, and also complained of right knee pain without history of injury or trauma.  A right knee MRI performed on 15 October 2003 showed bursitis, mild chondromalacia, and degenerative changes of the medial meniscus without a definitive tear.  No further surgery was recommended for either knee, and after a second orthopedic opinion confirming that he not a surgical candidate, the CI received a left knee steroid injection on 12 November 2003, which provided no relief.  

The 4 December 2003 commander’s statement, 7 months before separation, implicated both knee conditions as impairing the CI’s duty performance.  The permanent profile on 23 February 2004, 5 months prior to separation, listed bilateral knee pain.  

During the 17 December 2003 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported “impaired use of my left leg.  I cannot run, walk, or sit without pain…Movement is limited and kneeling is not done.”  On physical examination, the left tibial tuberosity was prominent and tender; the provider did not address the right knee. 

The 21 January 2004 MEB NARSUM examination, 6 months before separation, noted CI complaints of severe knee pain due to chondromalacia, and the use bilateral medial unloader braces.  Physical examination showed bilateral knee range of motion (ROM) of 0-120 degrees (normal 0-140); painful motion was not mentioned.  Both knees were ligamentously stable and provocative testing to elicit meniscal pathology was negative.  The examiner determined that the CI failed retention standards due to chronic bilateral knee pain from chondromalacia.  

At the 24 June 2004 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported bilateral knee pain and wore knee braces.  Physical examination showed a normal gait and bilateral patellar tenderness.  Bilateral knee ROM was 0-120 degrees with no mention of painful motion.  There was no evidence of instability or meniscal pathology. 

At a VA orthopedic visit on 23 August 2004, 1 month after separation, the CI reported bilateral knee pain, left greater than right, with left knee swelling.  Physical examination showed a normal gait and no use of any assistive device for ambulation.  Left knee surgical scars were well-healed and ROM was “uncomforting” with painful forced flexion and anterior instability noted.  The right knee showed no swelling or instability, but there was tenderness of the medial joint line, and ROM was “uncomforting” at extreme flexion.  Bilateral knee X-rays were normal.  On 16 November 2004, 4 months after separation, an MRI showed a normal left knee with well-preserved cartilage surfaces and no ligamentous or meniscal injury; the right knee had a small effusion with patellar and MFC chondromalacia.  

The panel first considered whether the right and left knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Both knees were implicated by the permanent profile and commander’s statement, and the NARSUM examiner determined that the CI fell below retention standards due to both knees.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled left and right knee conditions were each reasonably considered separately unfitting.  

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, citing full ROMs without ligamentous laxity.  The VA rated the left and right knee conditions 10% each, analogously coded 5299-5257 (knee impairment due to recurrent subluxation or lateral instability), based on the C&P examination, citing slight recurrent subluxation, pain on examination or lateral instability of the left and right knees.   Members agreed there was no limitation of flexion or extension of either knee which supported a rating under codes 5260 or 5261.  While painful motion of the knees was not documented at either the MEB NARSUM or C&P examinations, based on the total evidence in record, the panel concluded there was satisfactory evidence of painful motion of the left knee to warrant a 10% rating, coded 5003; but not of the right knee to support a rating higher than 0%.  The left knee was treated with two arthroscopic surgeries and steroid injection prior to separation and was addressed at the DD Form 2808 examination (but not the right).  Additionally, the VA orthopedic examination noted “painful forced flexion of the left knee,” but only discomfort at end of right knee ROM; and after separation, the CI was referred again to orthopedics for the more symptomatic left knee by the VA.  A 10% rating could alternatively be assigned under 5003 for two or more major joints with imaging evidence of arthritis as adjudicated by the PEB.  

After separately rating the right and left knee conditions, the combined rating recommendation was unchanged from the PEB’s determination and provided the CI no rating benefit.  Thus, the panel recommends no change to the PEB adjudication.  After due deliberation, considering all 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 pain. 

Chronic Back and Neck Pain.  The permanent profile dated 23 February 2004 listed degenerative disk disease (DDD) of the cervical and lumbar spine, but indicated the CI could do sit-ups, push-ups, perform an alternate aerobic event for physical fitness test, wear a helmet and carry and fire a rifle.  He was only limited to marching up to 2 miles and lifting up to 50 pounds.  The 4 December 2003 commander’s statement implicated only the CI’s knee conditions as impairing his duty performance, and the 11 February 2004 MEB NARSUM addendum did not indicate whether either the cervical or lumbar spine conditions alone or combined caused the CI to fall below retention standards.  

The panel first considered whether the back and neck conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The neck and back conditions were listed on the permanent profile, but neither condition was implicated by the commander’s statement.  While the profile limitations on marching and lifting could reasonably be attributed to the CI’s back condition, as well as the knees, the profile indicated the CI could perform sit-ups and push-ups, wear a helmet, and carry and fire a weapon, which provides a strong argument against significant duty performance impairment due to the neck condition at separation.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled back condition was reasonably considered separately unfitting, but there was a preponderance of evidence that the neck condition was not separately unfitting.  The panel therefore considered a disability rating for the unfitting back condition.  

Chronic Back Pain.  According to the STR and MEB NARSUM, the CI’s back condition began in February 2001 after a fall, and he was diagnosed with a lumbar sprain at the time.  In February 2004, a lumbar spine MRI showed diffuse DDD with annular tears and diffuse disc bulging, without central spinal stenosis or neuroforaminal encroachment.  

A MEB NARSUM addendum on 11 February 2004, 5 months prior to separation, addressed neck and back pain.  The CI reported that after his fall in 2001, he continued to have pain for years and “just learned to deal with it.”  He also had periodic numbness in his legs, but “never really got it looked at.”  Physical examination showed full lumbar spine ROM with normal reflexes and negative straight leg raise (SLR) testing to elicit radicular symptoms. 

At a physical medicine visit on 24 March 2004, 4 months before separation, the CI reported steadily worsening back pain that was constant and radiated down his legs, and to his feet at times.  Physical examination showed normal reflexes and sensation, mild knee weakness, and tight hamstring and quadriceps muscles bilaterally.  There was lumbar muscle tenderness and sciatic notch with negative SLR testing.  The CI was given three nerve block injections (location not documented), with the last one on 31 March 2004 and temporary improvement afterwards. 

At the C&P examination, the CI reported chronic lumbar pain with occasional muscle spasms.  Physical examination showed a normal gait and lower extremity reflexes, and negative SLR testing.  Flexion was to 90 degrees (normal), extension to 15 degrees (normal 30), and right and left lateral flexion to 25 degrees (normal 30), after repetition; painful motion was not addressed.  At a VA primary care visit on 23 July 2004, 1 week after separation, the CI said that he had stopped pain medication for his back and knees because he no longer needed it; however, during a recent move he had aggravated his back pain.  Physical examination showed diffuse lumbar tenderness.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bundled back and neck conditions 10% analogously coded 5243, citing full cervical and lumbar ROMs, and paraspinal muscle tenderness.  The VA rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing combined thoracolumbar ROM greater than 120 degrees but not greater than 235 degrees.  Members agreed that a 10% rating, but no higher, was justified for limitation of combined ROM as reported on the VA 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 also no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of that alternate VASRD formula.  

After unbundling the back and neck conditions, the panel’s recommendations of an unfitting back condition, rated 10%, and a not unfitting neck condition, provided no rating benefit to the CI, and therefore no change to the PEB’s combined adjudication is recommended. After due deliberation, considering all 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 and neck conditions.  

BOARD FINDINGS:  In the matters of the bilateral knee condition and the back and neck conditions, and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudications.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161102, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180012470, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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