RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02539
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060228

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Motor Transport Operator, medically separated for “chronic low back pain” and “bilateral knee pain,” rated 0% each, with a combined disability rating of 0%.

CI CONTENTION:  “The VA has me at 90%.  How does the board only give me 0%?  I don’t think I was rated fairly.”  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 - 20051220	VARD - 20070301	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5237	0%	Lumbar Spine Degenerative Disc Disease	5003	10%	20070111	
Bilateral Knee Pain	5099-5003	0%	Right Knee Patellofemoral Syndrome	5261	10%	20070111	
			Left Knee Patellofemoral Syndrome	5261	10%	20070111	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s recurring back condition was exacerbated by a fall from a truck while deployed to Iraq in 2003.  An X-ray in 2003 showed mild scoliosis, and a lumbosacral spine MRI on 20 November 2005 revealed mild disc desiccation (dehydration leading to less disc flexibility) and height loss between L5 and S1. 

At the 29 November 2005 MEB physical therapy (PT) examination, 3 months prior to separation, repetitive thoracolumbar flexion was 45 degrees (normal 90), and combined range of motion (ROM) was 170 degrees (normal 240), with painful motion.  During the 8 December 2005 MEB NARSUM examination, the CI reported low back pain that ranged from moderate to severe.  Physical examination showed a normal gait and spinal contour and ROM measurements were reference from the MEB PT evaluation.

At the 1 September 2006 VA Compensation and Pension (C&P) examination, 7 months after separation, the CI reported constant back pain.  Physical examination showed a non-antalgic gait, spinal tenderness, and muscle spasm.  Repetitive thoracolumbar flexion was to 80 degrees and combined ROM was 190 degrees, with painful motion.  Lumbar spine X-rays showed narrowed disc space between L5 and S1.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the low back condition 0%, coded 5237 (lumbosacral strain), citing painful and limited ROM with likely application of AR 635-40, B-29.  The VA rated the low back condition 10%, analogously coded 5099-5003 (degenerative arthritis), based on the C&P examination, citing painful or limited motion.  The panel majority agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees), as reported on the MEB PT ROM examination, most proximate to separation.  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 recommends a disability rating of 20% for the low back condition, coded 5237.

Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, analogously coded 5099-5003 and rated 0% with application of the US Army Physical Disability Agency pain policy and AR 635-40 B24.f.  This 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 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 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.  

According to the STR and MEB NARSUM, the CI’s bilateral knee pain began insidiously, but X-rays on 24 October 2005 were normal.  At the MEB NARSUM examination, the CI reported pain in both knees exacerbated by prolonged sitting, walking, standing, running and marching.  Physical examination revealed a normal gait, and no bilateral knee swelling, tenderness, patellar laxity, or meniscal impairment.  A MEB PT ROM study  was performed on 13 December 2005, and revealed repetitive right knee flexion to 112 degrees (normal 140) and extension to -4 degrees (normal 0), limited by hypertonia of gastrocnemius and hamstring muscles.  Repetitive left knee flexion was to 113 degrees and extension to 0 degrees, but painful motion was not addressed.

During the C&P examination, the CI reported bilateral knee pain, which was worse on the left than on the right.  Physical examination of both knees showed tenderness, but no swelling, muscle atrophy, or meniscal impairment.  Bilateral knee flexion was to 110 degrees and extension to 0 degrees, with painful motion.  Bilateral knee X-rays showed no significant bone pathology.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 0%, as noted above.  The VA rated each knee 10%, coded 5261 (leg, limitation of extension), based on the C&P examination, citing painful motion.  The panel first considered whether each knee condition remained separately unfitting, having been decoupled them from the combined PEB adjudication.  Both knees were permanently profiled, but the commander’s statement only implicated the low back condition.  However, the MEB NARSUM examiner determined that both knees did not meet retention standards, and the MEB Report found them to be medically unacceptable.  Since undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with the performance of military duties, members agreed that each knee was reasonably justified as separately unfitting.

The panel agreed there was no limitation of flexion (5260), meniscal surgery (5259), evidence of dislocated meniscus or loss body causing frequent locking with recurrent effusions (5258), or fracture, nonunion or malunion of the femur or tibia causing a knee impairment (5255, 5262) to support a rating for either knee under those codes.  However, members noted there was objective evidence of limited right knee extension due to muscle spasm, as recorded on the MEB NARSUM ROM examination, which warranted a 10% rating analogous to code 5261.  The panel majority agreed there was insufficient evidence of left knee limitation of extension or painful motion, proximate to separation, to warrant a rating higher than 0%.  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 5299-5261, and a disability rating of 0% for the left knee, coded 5299-5261.

BOARD FINDINGS:  In the matter of the low back condition, the panel majority recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the bilateral knee condition, the panel majority recommends that each joint be separately adjudicated as follows:  an unfitting right knee condition coded 5299-5261 and rated 10%; and an unfitting left knee condition coded 5299-5261 and rated 0%, both IAW VASRD §4.71a.  The single voter for dissent also recommends re-characterization to a combined 30%, but with individual condition ratings based on the C&P examinations (rated 10% for the back condition and 10% for each knee condition) and did not elect to submit a minority opinion.  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 the date of medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Low Back Pain	5237	20%	
Right Knee Pain	5299-5261	10%	
Left Knee Pain	5299-5261	0%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170309, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190006057, 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.