RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01740
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050824

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Light Wheeled Vehicle Mechanic, medically separated for “low back pain” and “bilateral knee pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  “I was awarded 30% at the time of discharge.  I do not believe that my mental health condition was considered when deciding my final disability rating.”  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 - 20050505	VARD – 20060725	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	10%	Bulging Lumbar Disc	5237	10%	20050721	
Chronic Bilateral Knee Pain	5099-5003	0%	Left Knee Pain	5260	10%	20050721	
			Right Knee Pain	5260	10%	20050721	
Depressive Disorder	Not Unfitting	Major Depressive Disorder	9434	30%	20060623	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the onset of the CI’s back condition began in 2001 without history of trauma or injury and progressively worsened due to frequent bending and heavy lifting in his job as a mechanic.  October 2004 lumbar spine X-rays showed degenerative changes at L5-S1 without evidence of spondylolisthesis.  No surgical options were offered.  

The 6 December 2004 MEB NARSUM examination, 9 months prior to separation, noted complaints of constant lower back pain.  At rest, the pain was achy with reported severity of 4/10 but reached 7/10 during periods of exacerbation.  Pain was precipitated by prolonged standing and sitting, bending, twisting, lifting or wearing field gear.  Physical examination showed no tenderness, spasm, erythema or swelling.  Distal neural, vascular, motor, reflexes and strength were bilaterally symmetric and intact in the lower extremities.  The examiner stated “range of motion (ROM) in the neck and lower back is full in six planes.”  There was minimal right quadriceps muscle atrophy, with an otherwise normal motor and neurologic examination.  In January 2005 the CI was seen in the emergency department for acute back spasm (6 months prior to separation), and subsequently underwent epidural steroid injection and facet blocks in February and March 2005.  The May and June 2005 physical therapy (PT) examinations showed painful limited back motion with ROMs charted below.  

At the 21 July 2005 VA Compensation and Pension (C&P) examination, 1 month before separation, the CI reported daily pain described as aching, and sometimes stabbing soreness in the neck and back with intensity 8-10/10 with pain radiating to the mid legs bilaterally.  No loss bowel or bladder control was reported.  No incapacitation was noted.  No brace was used.  Physical examination showed slow but normal gait and minor tenderness with guarding over the lower lumbar region.  The ROM measurements are charted below.  Function was not additionally limited by pain, fatigue, weakness or lack of endurance following five repetitions.  Neurologic examination of the lower extremities was unremarkable for deep tendon reflexes, motor or sensory abnormalities.  

The ROM examinations in evidence which the panel weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Thoracolumbar ROM
(Degrees)	PT ~3 Mo. Pre-Sep	PT ~2 Mo. Pre-Sep	VA ~1 Mo. Pre-Sep	VA ~10 Mo. Post-Sep	
Flexion (90 Normal)	15	30	75	20	60	
Combined (240)	50	90	215	75	185	
Comments	Painful motion	Painful motion	Painful motion	Weakness / Painful motion	Painful motion; guarding, tender	
§4.71a Rating	40%	40%	10%	40%	20%	

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5299-5237 (analogous to lumbosacral strain), citing “ROM less than full, but reportedly limited by pain.  Local tenderness to palpation noted, for which rated;” with likely application of AR 635-40, B-29.  The VA also rated the back condition 10%, coded 5237 (lumbosacral strain), based on the C&P examination 1 month before separation, citing forward flexion of 75 degrees.  

The panel deliberated on the disparate examinations in evidence.  The VA examination was closest to, and prior to separation, and was adjudged as having the highest probative value for rating at separation.  The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 60 degrees but not greater than 85 degrees) as reported on the VA examination proximate to separation.  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 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 left and right knee conditions as a single unfitting condition coded analogously to 5099-5003 (analogous to arthritis) and rated 0%.  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’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 bilateral knee condition is presented together below with attendant recommendations regarding separate unfitness, and separate rating if indicated

According to the STR and MEB NARSUM, the CI’s right greater than left knee pain began in mid-2002 without trauma or injury.  The CI was told that the cartilage on the back of his knees was deteriorating.  Weight bearing X-rays of the knees showed slight medial compartment squaring, but were otherwise normal.  The 6 December 2004 MEB NARSUM examination, 9 months prior to separation, noted constant bilateral knee pain that ranged from 3/10 at rest to 8/10 with prolonged standing and sitting, bending, twisting, lifting and wearing of field gear.  Physical examination showed tenderness, right greater than left, around the patella with positive grind test bilaterally.  The ROM evaluation showed flexion of 140 degrees (normal) bilaterally.  There was no laxity, instability or meniscal signs.  There was minimal right quadriceps muscle atrophy and no joint line tenderness.  

At the 21 July 2005 C&P examination, 1 month before separation, the CI reported no swelling or feelings of instability and was not able to run.  Physical examination showed no soft tissue swelling, point tenderness, joint effusion or ligament instability.  The ROM study showed flexion of 125 degrees bilaterally with pain from 115 degrees through 125 degrees bilaterally.  Function was not additionally limited by pain, fatigue, weakness or lack or endurance following five repetition and ROM did not change.   

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 0%, coded 5099-5003 (analogous to arthritis), citing normal radiographs and motion.  The VA rated the right and left knee conditions separately at 10% each, coded 5260 (leg, limitation of flexion), based on the C&P examination 1 months before separation, citing functional loss and painful motion.  

The panel first considered if the right and left knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  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 panel concluded there was not a preponderance of evidence of the service records that overcame the panel’s presumption that each knee condition was reasonably considered separately unfitting.  The panel then considered its rating recommendations for the unfitting left and right knee conditions at the time of separation.  

The panel deliberated on the disparate examinations in evidence.  Having adjudged the pre-separation VA examination as being closest to, and prior to separation, for the unfitting back condition (above), the panel also adjudged it as having the highest probative value for rating the knee conditions at separation.  Clinical findings and rating criteria were similar for both knees.  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.  There was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) for either knee.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262) for either leg.  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.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right knee condition, and 10% for the left knee condition, each coded 5099-5003.  

Contended PEB Condition:  Major Depressive Disorder.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement or judged to fail retention standards.  The CI had chronic occupational difficulty both in and out of service.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  Contact with mental health when deployed indicated that his performance was substandard and he required constant supervision during his deployment.  His global assessment of function was detailed at 65 with minimal impairment for military duty.   After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS: In the matter of the back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  In the matter of the bilateral knee condition, the panel recommends that each joint be separately adjudicated as follows:  an unfitting right knee condition coded 5099-5003 and rated 10%, and an unfitting left knee condition, coded 5099-5003 and rated 10%, both IAW VASRD §4.71a.  In the matter of the contended major depressive disorder, the panel agrees that it cannot recommend it for additional disability rating.  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 Low Back Pain	5299-5237	10%	
Chronic Right Knee Pain	5099-5003	10%	
Chronic Left Knee Pain	5099-5003	10%	
COMBINED	30%	

AR20190002414, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear  XXXXXXXXXXXXXXXXXX

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), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557.
A copy of this decision has also been provided to the Department of Veterans Affairs.