RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01015
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20060615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Motor Transport Operator, medically separated from the Temporary Disability Retired List (TDRL) for “chronic pain right knee” and “chronic back pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.

CI CONTENTION:  “All should be reviewed.”  The CI attached a list of his VA conditions and ratings.  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 – 20060509	VARD - 20061013	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain	5099-5003	10%	Chronic Right ACL Tear, Status Post Medial Meniscectomy…	5259	10%	20041007	
Chronic Back Pain	5299-5237	0%	DDD, Lumbosacral Spine	5242	20%	20041007	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Right Knee Pain.  According to the service treatment record (STR) and the TDRL entry narrative summary (NARSUM), the CI underwent right anterior cruciate ligament (ACL) repair in May 2004, but was unable to return to full duty and entered into the MEB process.  The Informal PEB rated the right knee condition 20% for moderate/constant pain IAW the US Army Physical Disability Agency’s pain policy, coded 5099-5003 (analogous to degenerative arthritis).  He was placed on TDRL effective 21 February 2005.  
There was no VA Compensation & Pension (C&P) examination conducted proximate to TDRL removal.  A general examination on 5 October 2004, 20 months prior to removal from TDRL, noted a slight laxity of the left ACL compared to the right (the repaired side).  Flexion was limited to 125 degrees on the right (normal is 140) with a normal extension of 0 degrees.  Painful crepitus was present on the right.  

The 9 February 2006 physical therapy range of motion (ROM) examination, 4 months prior to TDRL removal, showed extension of 0 degrees (normal) and flexion of 130 degrees (normal 140) with pain on flexion.  The TDRL NARSUM examination was completed the next day by an orthopedic surgeon.  The CI complained of moderate and constant pain in his right knee with symptoms of instability.  On examination, the CI had mild patellofemoral crepitus and some medial joint line pain, but no swelling.  There was full ROM of the right knee, but pain was elicited at the extreme limits of ROM.  The knee was stable.  X-rays showed mild degenerative changes, but a good repair.  A VA primary care note dated 31 July 2006, 2 months after TDRL removal showed slight tenderness in the right knee, no edema and normal ROM.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10%, coded 5099-5003, citing the US Army Physical Disability Agency pain policy for slight and constant pain.  The VA rated the right knee condition 10%, coded 5259, (removal of symptomatic semilunar cartilage), based on the C&P examination 20 months before TDRL removal, citing “symptomatic removal of the semilunar cartilage.”  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 and 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 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 that there was insufficient cause to recommend a change in the PEB adjudication for the right knee condition.  

Chronic Back Pain.  According to the STR and the TDRL NARSUM, the CI’s back pain first manifested in February 2004 after a fall while deployed.  At the 17 March 2004 physical medicine consult, the CI complained of a “pulling sensation to his left thigh, lateral leg, and 3 outer toes, associated with numbness after standing for a few minutes.”  He denied bowel or bladder problems, but complained of “general left lower extremity weakness.”  Radiographic studies showed small disc protrusions at L4-5 and L5-S1 with mild neuroforaminal narrowing at L4-5.  Electrodiagnostic studies on 17 March 2004 were negative for radiculopathy.  Neurosurgery did not recommend surgery.  The pain was refractory to injections and the CI was entered into the MEB process.  

There are no additional treatment records for the back in evidence until ROM studies in physical therapy on 9 February 2006, 4 months prior to TDRL removal.  These showed flexion of 55 degrees (normal 90) and total combined ROM of 155 degrees (normal 240) with pain on flexion, extension, and lateral flexion.  Rotation measurements were 50 degrees for both the right and left side (30 normal). The document stated that the flexion was for the trunk and did not specify if it was for the lumbar spine or thoracolumbar spine.  The next day, the TDRL removal NARSUM was prepared by an orthopedic surgeon.  The CI complained of severe intermittent back pain with intermittent left sided radicular symptoms.  On physical examination, there was no swelling, spasm, asymmetry or step deformity.  Palpation of the lumbosacral spine revealed no abnormalities.  ROM testing showed flexion of 90 degrees (normal) with pain, extension of 20 degrees (normal 30) and bilateral side bending of 40 degrees (normal 30).  Total combined ROM could not be determined because rotation measurements were not provided. However, based on the measurements the combined ROM was greater than 170 degrees.  The examiner did comment that pain was not elicited by rotation.  There was normal motor strength and reflexes in the bilateral lower extremities.  X-rays were unremarkable.  There was no VA C&P examination conducted proximate to TDRL removal.  
	
The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5299-5237, citing “thoracolumbar ROM limited by pain.”  The VA rated the back condition 20%, coded 5242, (degenerative arthritis of the spine), based on the C&P examination 20 months before TDRL removal, citing “forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.”  

The panel first considered the disparate day-apart orthopedic and physical therapy examinations proximate to TDRL removal.  After careful consideration, the panel agreed that the orthopedic examination held more probative value because it was more complete than the physical therapy examination conducted a day earlier.  In addition, it is not clear if the physical therapy examination was limited to the lumbar spine or if it was for the thoracolumbar spine.  The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM greater than 120 degrees but not greater than 235 degrees.  (Although there were no rotation measurements provided by the orthopedic examiner, the combined rating was at least 170 degrees and no greater than 230 degrees.)  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 documentation of intervertebral disc syndrome 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 back condition, coded 5237.  

BOARD FINDINGS:  In the matter 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 back condition, the panel unanimously recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  

There are no other conditions within the panel’s scope of review for consideration.  The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Right Knee Pain	5099-5003	10%	
Chronic Back Pain	5299-5237	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170227, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180005699, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	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. 

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

Sincerely,					      
Enclosure