RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-02723
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060315

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Petroleum Supply Specialist, medically separated for “chronic low back pain,” “right knee pain,” and “asthma,” rated 10%, 0% and 10% respectively, with a combined disability rating of 20%.  

CI CONTENTION:  Review all conditions.  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 - 20060214	VARD - 20070801	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5237	10%	Low Back Strain	5237	10%	20070515	
Right Knee Pain…	5099-5003	0%	Right Knee Condition	5259	10%	20070515	
Asthma	6602	10%	Asthma	6602	0%	20070515	
Post Traumatic Stress Disorder (PTSD) 	Not Unfitting	PTSD	9411	10%	20070710	
Hypersomnia Related to PTSD	Not Unfitting					
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  30% 	

ANALYSIS SUMMARY:  

Chronic Low Back Pain (LBP).  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began June 2003 due to a motor vehicle accident (MVA) while deployed.  At an 8 August 2005 orthopedic consult, the CI reported a one-year history of LBP, without radicular symptoms, but with some numbness of the right lower extremity (RLE).  Thoracic and lumbar MRIs were negative and physical therapy (PT) and pain medication did not improve symptoms.  

The 6 September 2005 MEB PT range of motion (ROM) study, 6 months prior to separation, revealed thoracolumbar flexion to 75 degrees (normal 90) and a combined ROM of 200 degrees (normal 240), after repetition and with limitation due to pain.  

The 21 November 2005 MEB NARSUM examination, 4 months before separation, noted CI complaints of low back and thoracic pain.  Physical examination showed diffuse lumbosacral spine tenderness and some pain inhibition in the RLE during forward flexion and right and left side bending.  There was no significant scoliosis.  

At the 15 May 2007 VA Compensation and Pension (C&P) examination, 14 months after separation, the CI reported LBP, and the examiner recorded bilateral paraspinal muscle tenderness but no spasm.  Thoracolumbar ROM showed forward flexion to 90 degrees and a combined ROM of 230 degrees, with pain.  Forward flexion decreased to 70 degrees after repetitive motion but all other ROM measurements remained unchanged.  There was no fatigability, weakness or incoordination noted, and lumbar spine X-rays were normal. 

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5237 (lumbosacral strain), citing 73 degrees of flexion and 10 of degrees extension, with measurements limited by pain.  The VA also rated the back condition 10%, analogously coded 5237, based on the C&P examination, citing combined thoracolumbar spine ROM greater than 120 degrees but not greater than 235 degrees.  Panel members agreed that a 10% rating, but no higher, was justified for limitation of flexion  as reported on the PT MEB and MEB NARSUM examinations most 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.  

Right Knee Pain.  According to the STR and MEB NARSUM, the CI’s knee condition began in 2003 after the same MVA noted above.  He underwent arthroscopic surgery for a bucket handle tear of the medial meniscus on 26 January 2005.  Ligaments were intact and there were minimal degenerative changes of the cartilage of the knee joint and patella.  Postoperatively, the CI continued to report pain, swelling and instability, and used a cane intermittently.  

At the MEB PT examination, right knee ROM following repetitive movement was flexion of 95 degrees (normal 140) and extension of 5 degrees (normal 0), with painful motion.  The MEB NARSUM examination noted CI complaints of fairly constant knee pain with intermittent swelling, locking and instability.  Physical examination showed no effusion and full ROM.  There was medial joint line tenderness, but ligaments were intact with no evidence of meniscal pathology.  

At an outpatient VA primary care examination on 10 January 2007, 10 months after separation, the CI reported continued superior lateral knee pain, left greater than right.  Physical examination noted “good” flexion and extension “just short of 180 degrees,” and no effusion or crepitus.  

At the VA C&P examination, the CI reported right knee pain, and the examiner noted a normal gait, medial joint line tenderness, and no effusion.  Right knee ROM following repetition revealed flexion to 90 degrees and extension to 0 degrees, limited by pain.  Repetitive motion testing did not produce any additional pain, change in ROM, fatigability, weakness or incoordination.  Right knee X-rays were within normal limits.  
The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the knee condition 0%, analogously coded 5099-5003 (degenerative arthritis), citing the US Army Physical Disability Agency pain policy.  The VA rated the knee condition 10%, analogously coded 5259 (removal of symptomatic cartilage, semilunar), based on the C&P examination, citing symptomatic removal of the semilunar cartilage.  Panel members agreed there was no limitation of flexion or extension (5260, 5261) which supported a compensable rating.  However, there was persistence of pain after meniscal surgery warranting a 10% rating under code 5259.  There was no history or 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 to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There was therefore no VASRD §4.71a rating higher than 10% under any applicable VASRD code.  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.  

Asthma.  According to the STR and MEB NARSUM, the CI’s asthma condition began in July 2004 when he experienced difficulty breathing with running and also at night.  Pulmonary function tests (PFTs) in July 2004 showed normal forced expiratory volume in one second (FEV-1) and FEV-1/forced vital capacity (FVC), with mild small airways obstruction that increased with use of bronchodilator medication.  At an examination for respiratory symptoms on 16 July 2004, the CI reported no diagnosis of asthma in the past but that he had difficulty breathing when he ran track in high school and sometimes at night.  There was also a family history of asthma.  Asthma triggers included pollen, cigarette smoke, cold air, exercise and stress.  The provider prescribed an anti-inflammatory inhaler (Flovent) in addition to the bronchodilator inhaler (albuterol) the CI was already using, and an oral allergy medication.  At an internal medicine visit on 28 July 2004, the CI reported a continued requirement for his rescue inhaler, and his inhaled anti-inflammatory medication was changed to Advair.  Symptoms improved with use of the Advair, and PFTs on 29 May 2005 were normal.  Medications in use at that time were Advair, albuterol and Singulair (oral bronchodilator mediation).  

During the MEB NARSUM examination, the CI reported on and off breathing symptoms since being on Advair, with use of his rescue inhaler approximately twice a week.  Physical examination showed the lungs were clear to auscultation and a normal cardiac examination.  In August 2005, PFTs showed normal FEV-1 and FVC, with an FEV-1/FVC of 74%.  The CI was diagnosed with mild to moderate persistent asthma and the medication profile included Singulair, Advair, Flovent, and albuterol.  

At the VA primary care visit in January 2007, the CI reported a history of asthma and brought his Advair (500/50 milligrams) prescription with him stating that he used it twice a day.  He reported use of Singulair in the past but had not been using it recently.  He denied shortness of breath, wheezing, or coughing on his current medication.  At the VA C&P examination, he reported shortness of breath usually in the late afternoon and use of a rescue inhaler 2-3 times a day.  The examiner stated the CI was currently using Advair twice a day, but noted no evidence of an albuterol prescription from the VA.  The CI denied any history of emergency treatment or hospitalization for asthma symptoms.  Physical examination showed a normal heart and lungs, and PFTs revealed a normal FEV-1 and FVC, with an FEV-1/FVC ratio of 74%.  A post-bronchodilator test was not performed.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the asthma 10%, coded 6602 (asthma), citing intermittent use of inhalation therapy.  The VA rated the asthma condition 0%, coded 6602, based on the C&P examination, citing the absence of forced expiratory volume in one second (FEV-1) of 71 to 80 percent of predicted value; or the ratio of FEV-1 to forced vital capacity of 71 to 80 percent; or diffusion, capacity of the lung for carbon monoxide by the single breath method 66 to 80 percent predicted.  Panel members noted that a 30% rating stipulates “FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication.”  Inhaled anti-inflammatories prescriptions were documented at all examinations proximate to separation, and listed on the medication profiles.  Thus, the panel agreed that the VASRD §4.97 threshold for a 30% rating was reasonably satisfied in this case on the basis of bronchodilator and/or inhalational anti-inflammatory medication use.  A 60% rating was not justified in the absence of at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic corticosteroids.  Additionally, there was no PFT evidence to support a higher rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the asthma, coded 6602.  

Contended PEB Conditions:  PTSD and Hypersomnia.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The PTSD and hypersomnia  were listed on the permanent profile and failed retention standards.  However, the 9 September 2005 commander’s statement indicated the CI’s current profile was P1L3S1 with limitations of no sit-ups, push-ups, running, lifting over 10 pounds, walking at own pace, no wearing of protective mask and no physical fitness test.  The commander implicated the back and knee conditions as impairing successful duty performance and further commented that in the 5 months he had been the CI’s commander, the CI was “able to perform administrative tasks in an office setting with outstanding results,” but was “unable to perform routine soldier requirements.”  The PEB requested additional information on 15 December 2005, and the commander’s statement dated 29 December 2005 noted the same physical limitations and that that although he was “unable to perform the physical duties as required of a Soldier in his grade and MOS,”  the CI performed “very well” with others,  “could be relied upon as an NCO and leader.”  The commander also stated he managed the pressures of his responsibilities well and concluded that “his PTSD has not noticeably affected his work performance.”  

Panel members agreed there was no performance-based evidence from the record that either of the contended 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 back condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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 asthma c, the panel recommends a disability rating of 30%, coded 6602 IAW VASRD §4.97.  In the matter of the contended PTSD and hypersomnia, the panel recommends no change from the PEB determinations 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	10%	
Right Knee Pain	5259	10%	
Asthma	6602	30%	
COMBINED	40%	
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170313, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190008407, 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 40% 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.  Inquiries 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.