RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02562
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060621

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E7, Unit Supply Specialist, medically separated for “chronic low back pain” and “painful knees, ankles and feet,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  Back and knees have worsened and negatively impact daily activities.  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 - 20060223	VARD - 20081020	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Degenerative Lumbar Spine…	5242	10%	20070611	
Painful Knees, Ankles, and Feet	5099-5003	0%	Right Knee Chondromalacia Patella	5260	0%		
			Right Knee Chondromalacia Patella	5260	0%		
			Right Foot Hallux Valgus…	5280-5279	10%		
			Left Foot hallux Valgus…	5280-5279	10%		
			Bilateral Achilles Tendonitis	5024	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back condition began in 2004 when he felt his back pop while performing rifle physical training in water up to his knees.  An MRI in October 2005 showed L4-5 and L5-S1 disk degeneration and disk space narrowing.  There was no surgical indication.  At the 27 April 2005 MEB NARSUM orthopedic examination, 14 months prior to separation, the CI reported chronic LBP radiating to the right buttocks for 4 years.  The pain was worse at night.  There were occasional pain episodes with muscle spasms.  Physical examination documented thoracolumbar tenderness and normal, but painful, thoracolumbar range of motion (ROM).  During the 29 November 2005 MEB physical therapy (PT) examination, 7 months before separation, showed repetitive goniometric-measured thoracolumbar flexion to 45 degrees (normal 90) and combined ROM was 160 (normal 240) with painful motion.  

At the 11 June 2007 VA Compensation and Pension (C&P) examination, 12 months after separation, physical examination revealed a normal gait, proper spinal curvature, but spinal tenderness.  Spine ROM was documented on the 20 October 2008 VA Rating Decision (VARD) as flexion to 80 degrees and combined ROM of 210 degrees.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic LBP 10%, coded 5237 (lumbosacral strain), citing spinal tenderness.  The VA rated the low back condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing limitation of flexion or combined ROM.  The panel noted the discrepancy between the PT forward flexion of 45 degrees and the service orthopedic and VA examination ROM measurements.  Members placed higher probative value on the preponderance of the STR evidence and the MEB PT examination.  The panel 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 examination.  There was no evidence of incapacitating episodes secondary to intervertebral disk syndrome 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.  

Painful Knees, Ankles, and Feet.  The PEB combined the painful knees, ankles and feet under a single disability rating, analogously coded 5099-5003 (degenerative arthritis) and rated 10% with application of the US Army Physical Disability Agency (USPDA) pain policy.  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 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 knees, ankles and feet pain is presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Painful Knees.  According to the STR and MEB NARSUM, the CI’s bilateral knee condition began without specific trauma or injury history.  There was no surgical indication.  At the 27 April 2005 MEB NARSUM orthopedic examination, the CI reported 4-5/10 bilateral knee pain, which progressively worsened over several months.  He reported sharp pains going up and down stairs and when rising up after prolonged sitting.  Physical examination showed patellofemoral pain with grind and crepitus during motion.  There was full ROM bilaterally and no joint line tenderness.  During the 29 August 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 10 months prior to separation, the CI reported bilateral knee pain.  Physical examination showed positive bilateral knee painful motion.  ROM was not addressed.  At the 29 November 2005 MEB PT examination right knee flexion was to 126 degrees (normal 140) and extension was 0 degrees (normal).  Left knee flexion was to 125 degrees and extension was also normal.  Bilateral pain-limited motion was noted.  At the 9 January 2006 MEB addendum, 5 months before separation, the CI reported left greater than right knee pain since 2003.  The pain was described as 3-7/10, dull, and constant.  The pain increased with ascending stairs, exiting from a car, and impact activities.  The examiner referenced the aforementioned MEB orthopedic and PT examinations.  

During the C&P examination physical examination revealed a normal gait. Bilateral knee ROM was reported on the 20 October 2008 VARD as flexion to 130 degrees and normal extension.  Painful motion was not addressed.  There was no ROM loss caused by pain, fatigue, weakness, or lack of endurance following repetitive use.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bundled painful knees, ankles, and feet 0%, analogously coded 5099-5003 (degenerative arthritis), citing the USAPDA pain policy.  The VA rated the right and left knee conditions 0% each, coded 5260 (leg, limitation of flexion), citing a non-compensable C&P examination.  The panel first considered whether each knee condition remained separately unfitting, having been decoupled from the PEB adjudication bundling the ankles and feet.  Both knee conditions were profiled as “patellofemoral arthritis” that restricted running, jumping, marching, and ruck and flak wear.  The commander’s statement implicated the CI’s back condition.  The MEB NARSUM orthopedic examiner diagnosed bilateral knee osteoarthritis and the MEB report determined the condition did not meet retention standards.  In this case, both knees were implicated by the NARSUM, profiled, and considered to fail retention standards.  Panel members agreed that each knee could be reasonably justified as separately unfitting.  

The panel then considered its rating recommendation.  Although there was no limitation of motion (5260, 5261) to support a minimum rating for either knee, the panel agreed there was evidence of painful motion with functional loss IAW §§4.59, 4.40 and 4.45 to support a 10% rating for each knee, as recorded by the MEB (DD Form 2807-1 and 2808) and MEB PT examinations.  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) proximate to separation, no history of surgery to remove a meniscus (5259), and no fracture, nonunion or malunion of the femur, tibia or fibula which impaired the knee (5255, 5262) to support a 10% rating under those codes for either knee.  After due deliberation, and considering all the evidence, the panel recommends a disability rating of 10% for the right knee condition and 10% for the left knee condition, each coded 5299-5260.

Painful Ankles and Feet.  According to the STR and MEB NARSUM, the CI’s bilateral ankle and foot pain conditions began without specific trauma or injury history.  The 19 August 1999 right ankle bone scan, performed for complaints of heel pain and metatarsal tenderness, was normal.  The 24 September 1999 podiatric consultation noted a 7-year history of recurring foot and ankle pain.  The consulting narrative noted osteophytes.  The podiatric examiner recorded diagnoses of chronic bilateral Achilles tendonitis and plantar fasciitis.  The CI was treated with arch support and transdermal medication.  At the MEB NARSUM orthopedic examination the CI reported ankle and foot pain from prolonged exercise in the infantry.  Physical examination showed bilateral Achilles tendon insertion tenderness and an antalgic gait.  Ankle and foot ROM and painful motion were not addressed.  At a primary care examination on 11 October 2005, 8 months before separation, physical examination showed all-bilateral extremities movement was “normal.”  During the MEB PT examination repetitive goniometric-measured right ankle dorsiflexion was to -10 degrees (normal 20) and plantar flexion was 60 degrees (normal 45).  Left ankle dorsiflexion was 0 degrees and plantar flexion was 48 degrees.  Bilateral painful motion was elicited.  The 6 January 2006 physical examination noted right greater than left Achilles tendon and calcaneal pain.  The pain was reported as 3-4/5 and a dull ache with sitting and 4-5/5 with stairs and hills.  At the 17 May 2006 the primary care examination, one month before separation, the CI reported pain in the left heel and foot.  The physical examination showed left foot tenderness.  There was no Achilles tendon insertion tenderness.  Ankle ROM was not addressed.  

Physical examination during the C&P examination revealed a normal gait.  Bilateral thickening of the distal Achilles tendon and tenderness were reported on the 20 October 2008 VARD.  Ankle ROM and painful motion were not addressed. Additionally, the VARD reported right and left foot hallux valgus with chronic metatarsalgia diagnosed.  Bilateral big toe X-rays showed incipient arthrosis of the metatarsophalangeal joints. 

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the bilateral knees, ankles, and feet pain and applied a single 10% rating analogous to degenerative arthritis (coded 5099-5003)  citing the USAPDA pain policy.  The VA rated the bilateral Achilles tendonitis 10%, coded 5024 (tenosynovitis), based on the C&P examination, citing painful or limited motion of a major joint.  The VA also rated right and left foot hallux valgus with chronic metatarsalgia 10% each, analogously coded 5280-5279 (hallux valgus, unilateral - metatarsalgia, anterior (Morton’s disease), unilateral), citing anterior metatarsalgia (Morton’s disease).  The panel first considered if each ankle and foot condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  In this case the Achilles tendonitis condition was profiled, implicated by the NARSUM, and considered to fail retention standards.  Panel members agreed that the left and right Achilles tendonitis conditions could be reasonably justified as separately unfitting.  

The panel then noted that the CI was diagnosed with plantar fasciitis (foot pain due to inflammation of the tissue lining the sole) and multiple treatment notes documented metatarsal pain.  The feet were not profiled nor considered to fail retention standards, but were implicated by the NARSUM.  The panel could not find evidence in the commander’s statement nor elsewhere in the STR that indicated any significant interference of foot pain with the performance of duties. Therefore, the panel concluded that the preponderance of evidence showed the bilateral foot pain condition would not have caused the CI to be referred into the DES or to be found unfit.  The panel next considered its rating recommendation for the bilateral Achilles tendonitis condition.  The MEB PT examination supported a 10% rating for each ankle IAW §4.59 (painful motion).  The panel considered if the CI’s right ankle limitation of motion was “moderate” to support a 10% rating or “marked” to support a 20% when considered under 5271.  The panel agreed that the MEB PT ROM approximates a moderate dorsiflexion limitation to support a 10% rating for the right ankle.  The panel considered alternative VASRD ankle and analogous codes (5262, 5272, 5273), but all were less applicable and/or not advantageous to rating.  After due deliberation, and considering all the evidence, the panel recommends a disability rating of 10% for the left ankle condition coded 5299-5271, and 10% for the right ankle condition, coded 5271.  
BOARD FINDINGS:  In the matter of the chronic low back condition and IAW VASRD §4.71a, the panel recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the bundled painful knees, ankles and feet, the panel recommends that the bilateral knee and ankle conditions be separately adjudicated IAW VASRD §4.71a as follows:  an unfitting right knee condition coded 5299-5260, rated 10%; an unfitting left knee condition coded 5299-5260, rated 10%; an unfitting right ankle condition coded 5271, rated 10%; and an unfitting left ankle condition coded 5299-5271, rated 10%. 

 In the matter of the painful feet the panel recommends the condition as not unfitting.  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 Ankle Pain	5271	10%	
Left Ankle Pain	5299-5271	10%	
Right Knee Pain	5299-5260	10%	
Left Knee Pain	5299-5260	10%	
COMBINED	50%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170322, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

AR20190006123, 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 50% 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.