RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX  	CASE:  PD-2017-02087
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E6, Military Police, medically separated for “right knee pain,” “chronic back pain,” and “depressive disorder’, rated 0% each, with a combined disability rating of 0%.   “Depressive disorder” was determined to have existed prior to service (EPTS) and was not rated. 

CI CONTENTION:  “I felt really rushed through the PEB, I did not receive adequate medical review because I was a replacement soldier.”  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 - 20060703	VARD - 20070719	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain	5099-5003	0%	Right Knee Medial Meniscal Tear	5260	10%	20070719	
Chronic Back Pain 	5237	0%	Lumbar Spine Compression Fracture	5235	10%	20070719	
Depressive Disorder	9434	EPTS	Right Leg Radicular Symptoms	8529	10%	20070719	
			Post-Traumatic Stress Disorder	9411	NSC	20070207	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Right Knee Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s right knee pain began in October 2004 after he fell into a grass covered hole while on a training exercise.  He was given a knee brace, Motrin and placed on quarters, however his pain did not fully resolve and swelling occurred with increased activity.  An MRI revealed a small tear of the posterior horn of the meniscus with a small Bakers cyst.  In April 2005, the CI underwent a right knee partial medial meniscectomy, but continued to have knee pain with physical training and other soldiering duties.  

The 12 December 2005 MEB NARSUM examination, 9 months prior to separation, noted complaints of continued right knee pain with activity and locking after running 15 feet.  Physical examination showed full range of motion (ROM) with no instability.  The 14 April 2006 MEB NARSUM addendum examination, 4 months prior to separation revealed repetitive right knee flexion to 110 degrees (normal 140) and extension to 0 degrees (normal), with no painful motion.  

At the 26 February 2007 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported right knee pain rated at 2-4/10 depending upon activity or inactivity.  Physical examination showed repetitive right knee flexion to 105 degrees, with pain at the end point, and extension to 0 degrees, without pain.  Tests for stability were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 0%, analogously coded 5099-5003 (arthritis, degenerative), citing the US Army Physical Disability Agency pain policy.  The VA rated the right knee condition 10%, coded 5260 (leg, limitation of flexion), based on the C&P examination, citing painful motion.  
Members agreed there was no STR evidence of limitation of motion (5260, 5261), as recorded by the NARSUM addendum examination proximate to separation.  However, there was a history of meniscal surgery (5259) which was symptomatic to support a 10% rating.  There was no evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), and no fracture, nonunion or malunion of the femur or tibia causing a knee impairment (5255, 5262) to support a higher rating.  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).  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, coded 5259.  

Chronic Back Pain.  According to the STR and MEB NARSUM, the CI’s chronic back pain began and progressively became worse while assigned to Ft. Leonard Wood with no trauma or injury.  A lumbosacral spine MRI was notable for an L1 anterior wedge deformity with no pathologic characteristics.  In February 2005, an MRI showed a 4-month old compression fracture that was minute and without neural entrapment; surgery was not indicated.  The CI continued physical therapy, and in April 2005, EMG and nerve conduction studies were normal.  

The MEB NARSUM examination noted complaints of significant low back pain with low/minimal stress and load bearing, and the examiner documented a normal gait.  The MEB NARSUM addendum examination recorded thoracolumbar ROM measurements performed with inclinometers, and showed  flexion of 10 degrees (normal 90) and combined ROM of 45 degrees (normal 240), after repetition.  However, the examiner also noted that the CI was able to perform a full standing toe touch (which approximates flexion to 90 degrees).  

At the C&P examination, the CI reported constant back pain, rated at 4/10, that increased to 7-8/10 with activity.  Physical examination showed moderate tenderness along the spinous processes without spasms.  Thoracolumbar ROM measurements showed flexion of 70 degrees and combined ROM of 175 degrees, after repetition.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded 5237 (lumbosacral strain).  The VA rated the back condition 10%, coded 5235 (vertebral fracture or dislocation) based on the C&P examination, citing limitation of forward flexion.  Members noted the contradictory findings in the NARSUM examination and therefore placed greater probative value on the C&P examination.  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) and/or combined ROM (greater than 120 degrees but not greater than 235 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 evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for that condition.  There was no associated radiculopathy for separate peripheral nerve rating.  While the CI may have experienced radiating pain from the back condition, this is subsumed under the general spine rating criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).”  There was no objective evidence of a radiculopathy with functional impairment (such as weakness) that directly impacted fitness for duty.  There was no evidence in this case that a neurologic abnormality existed to any degree that could be described as functionally impairing.  The panel therefore concluded that additional disability rating was not justified on this basis.  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 chronic back pain condition, coded 5237.  

Depressive Disorder.  According to the STR and MEB NARSUM, the CI’s depressive disorder began in August 2004 after the CI received activation orders.  He admitted to being treated at a civilian institution for depression, and after completing a substance abuse program, had not consumed alcohol for 2 years. 

The MEB NARSUM examination noted complaints of continued disruptive trouble dealing with large crowds which triggered panic attacks, and reports of nightmares about his "military experiences."  The psychiatric examiner noted that the CI had never been overseas or seen combat, and had been untruthful in his evaluations.  

The 24 February 2006 psychiatric addendum examination, 6 months prior to separation, showed a calm, alert, attentive, and cooperative individual, with a neutral mood, and full, broad, and appropriate affect.  He was generally upbeat in his comments and expressions, with no morbid ideations, and associations were organized, logical, and relevant.  There was no unusual thought content, and comprehension, memory, judgment, and insight were stable.  Speech was fluent, with unremarkable rate and quality.  The psychiatrist concluded that the CI’s depressive disorder was in remission and assigned a Global Assessment of Functioning (GAF) score of 88.  

At the C&P examination, the CI reported considerable loss of confidence and self-esteem, and a weight gain of 100 pounds over the previous year.  He also reported low energy, and no drive or motivation to do anything beyond minimum effort either at home or at work.  He had frequent low moods and memory difficulties, especially with word finding at times.  He described anxiety symptoms with a fear of intruders breaking into the house, fear of spiders, general social discomfort, and feelings of distrust and having to be on guard around people.  The examiner noted that he worried quite a bit about his problems, but mental examination showed no active suicidal thoughts. The examiner concluded the CI had PTSD and a mood disorder, and assigned a GAF score of 55.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB did not rate the depression disorder concluding that it was an EPTS condition, and cited  10 US Code § 1207a, where the CI had less than 8 years of active duty service and the condition was diagnosed prior to the current period of active duty.  The VA did not service connect the mental health condition.  Members agreed the depressive disorder was well established prior to being called to active duty and that the EPTS determination was appropriate and the condition was not service aggravated.  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 depressive disorder.  

Contended PEB Conditions:  Right and Left Hand Paresthesias.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The conditions were profiled at a minimal upper 2 level but were not implicated in the commander’s statement, and did not fail retention standards.  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 there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions, so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the right knee condition, the panel recommends a disability rating of 10%, coded 5259 IAW VASRD §4.71a.  In the matter of the back condition, the panel recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  In the matter of the depressive disorder and IAW VASRD §4.130, the panel recommends no change in the PEB adjudication.  In the matter of the contended right and left hand paresthesias conditions, the panel recommends no change from the PEB determinations as not unfitting.  

The panel recommends the CI’s prior determination be modified as follows, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Knee Pain	5259	10%	
Chronic Back Pain	5237	10%	
Depressive Disorder	9434	EPTS	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170225, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR, XXXXXXXXXX

XXXXXXXXXX
XXXXXXXXXX
XXXXXXXXXX

Dear XXXXXXXXXX:

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