RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2017-02788
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060302

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard O4, Quartermaster Officer, medically separated for “chronic low back pain,” “septic arthritis,” and “chronic neck pain,” rated 10%, 10% and 0%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  Review of all conditions requested.  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 - 20051102	VARD - 20061128	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic LBP	5237	10%	Lumbar Strain	5237	10%	20060822	
Septic Arthritis (Rt Knee)	5099-5009	10%	Instability of the Rt Knee	5257	20%		
			Degenerative Arthritis, Rt Knee…	5260-5010	10%		
Chronic Neck Pain	5010	0%	No VA Placement	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s low back pain began as early as 1985 after falling. Pain was exacerbated in 1998 from lifting, and again in 2000 from falling.  At the 8 April 2005 physical therapy (PT) MEB examination for measurements, 11 months prior to separation, the CI complained of LBP and use of narcotic pain medication.  Physical examination showed thoracolumbar spine range of motion (ROM) with flexion of 85 degrees (normal 90), and combined ROM of 235 degrees (normal 240), with repetition.  Painful motion was not addressed, but passive ROM was greater than active ROM.  

The 12 May 2005 MEB NARSUM examination, 10 months prior to separation, noted complaints of mid and lower back pain.  Physical examination showed tenderness over the sacroiliac joints at the base of the lumbar spine with spine “demonstrates normal active ROM …specifically delineated in the PT note.”  An MRI documented degenerative disc disease at most levels and partial lumbarization of S1.  Treatment notes indicated the CI underwent lumbar radiofrequency ablation in August 2005 and was doing well (70-80% improved) until he fell in the shower in October 2005, 4 months before separation. Examination in October 2005 documented tenderness, and an antispasmodic medication was prescribed.  

At the 22 August 2006 VA Compensation and Pension (C&P) examination, 6 months after separation, the CI reported LBP, stiffness, and weakness.  The examiner found a decreased low back lordotic curve and the CI had difficulty standing on his toes and heel with the pain of his knee and back.  ROM was flexion of 40 degrees and combined ROM of 130.  The examiner “noted that pain increased throughout the range at the tail end of the ROM, mostly on the passive mode.  There was no evidence of pain.”  There was no change following repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back at 10%, coded 5237 (lumbosacral strain), citing tenderness and combined passive ROM.  The VA used the same code and rating (5237 at 10%), based on the C&P examination, noting forward flexion of 0-40 degrees (20% ROM criteria), but citing painful or limited motion of a major joint.  

The panel deliberated the probative value of the examinations in evidence and considered that although the VA examination was closest to separation, the preponderance of the STR evidence did not align with the more limited ROMs noted after 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) and/or combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the PT examination, or tenderness as reported on the NARSUM.  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 (IVDS) 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.  

Septic Arthritis (Right Knee).  According to the STR and MEB NARSUM, the CI traumatically injured his right knee in 2002 and had anterior cruciate ligament (ACL) reconstruction and meniscal debridement in October 2002.  He developed septic arthritis and required a 78-day hospitalization. He had repeated injuries and multiple surgeries in 2003 and 2004 including posterolateral corner instability reconstruction and hardware removal in February 2005 (nine total surgeries).  

At the PT MEB examination the CI complained of right knee pain and instability.  Physical examination showed right knee ROM with extension of 0 degrees (normal) and flexion to 125 degrees (normal 140) with repetition.  There was no evidence documented other than ROMs (no stability testing or mention of pain or gait).  The 12 May 2005 MEB NARSUM examination noted complaints of right knee pain and instability.  Physical examination showed full active and passive ROM, negative Lachman evaluation, negative varus and valgus instability at 0 and 30 degrees of flexion and negative posterior drawer.  He was diffusely tender about the knee especially along the joint lines; however, there was no focal structural deficit noted in terms of his ligamentous stability.  He [had] obvious decrease in bulk of the right-sided quadriceps and hamstring muscles compared to his left side.”  The diagnosis was right knee instability and pain.  The examiner stated, “He does not have specific instability on physical examination; however, he does have residual instability following remedial measures … [and] was also limited by arthritic changes.”  

The 20 August 2005 primary care note indicated the CI had injured his right knee on 16 August 2005 and was unsure if a follow-up MRI was needed (earlier note not in evidence).  Physical examination showed right knee tenderness at the medial aspect of the knee, instability, and decreased ROM.  The assessment was possible medial collateral ligament injury.  The 8 September 2005 civilian orthopedic medical condition update, 6 months prior to separation, summarized that the CI still walked with a right knee brace, had significant quadriceps atrophy (60-70% decrease compared to non-operative side), ROM of 0-115 degrees, and significant patellofemoral crepitus.  There was Grade 1 varus opening at 30 degrees, which decreased to 0 degrees on extension.  There was no valgus instability and Lachman and posterior drawer were negative.  There was significant weakness.  Radiographs showed tri-compartment arthritis.  

At the C&P examination, the CI reported right knee pain with weakness, stiffness, swelling, and giving way, but no episodes of any lock-up.  Physical examination showed a significant antalgic gait and the CI was walking with a right knee brace with significant knee pain.  There was evidence of mild right knee deformity with normal patellar tracking.  Multiple surgical scars were well healed.  ROM was extension to 0 degrees and flexion to 100 degrees with painful motion and no changes on repetition.  Stability testing revealed evidence of the right knee having a moderate-to-severe degree of valgus with laxity noted at 30 degrees of flexion, and a mild degree of valgus instability noted at the neutral angle of flexion.  ACL tests (drawer and Lachman) and McMurray test (meniscal) were negative.  There was decreased strength (4/5).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee at 10%, coded 5099-5009 (analogous to arthritis, other types), citing the CI had been in a brace for nearly 3 years with resulting quadriceps atrophy.  The VA rated the right knee at 10%, coded 5260-5010 (limitation of leg flexion – arthritis due to trauma) and also 20%, coded 5257 (knee, other impairment), based on the C&P examination, citing painful or limited motion and moderate instability respectively.  

There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §§4.59, 4.40 and 4.45).  There was history of surgery to partially remove a meniscus (5259) with persistent symptoms to support an alternative rating under that code.  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), to support a rating under that code.  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).  

It was noted that the MEB condition was for knee instability and pain and the PEB rated the knee condition at 10% for septic arthritis following ACL reconstructions.  Panel members therefore concluded that consideration of dual coding for painful motion and instability was appropriate.  In deliberating a rating under the 5257 code (knee, other impairment; recurrent subluxation or lateral instability), the panel considered prolonged use of a knee brace, significant muscle atrophy and weakness, and symptoms of instability, and also noted the objective examination instability findings by multiple providers prior to separation.  The pre-separation examinations documented instability that most nearly approximated the “mild” (10%) level under the 5257 code.  Although the post-separation VA examination indicated “moderate” (20%) instability, it was the single evaluation documenting instability to that level and was considered an outlier or post-separation worsening.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a separation rating of 10% for (meniscal cartilage debridement, septic arthritis with limitation of motion) coded 5259-5009, and 10% for knee instability coded 5257, for a combined rating of 20% for the right knee condition.  

Chronic Neck Pain.  According to the STR and MEB NARSUM, the CI’s neck pain began as early as 1985 after falling.  Neck pain symptoms returned in approximately February 2005 with left and then right upper extremity symptoms.  An MRI revealed mild extradural disease (degenerative changes) at C3-C7 without stenosis, and loss of cervical lordosis.  At the 8 April 2005 PT MEB examination the CI complained of neck and left upper extremity pain.  Physical examination showed ROM with flexion of over 45 degrees (normal), lateral rotations of 75 degrees (normal 80), and combined ROM of 330 degrees (normal 340) with application of VASRD note 2.  The MEB NARSUM examination noted complaints of neck pain with upper extremity symptoms.  Physical examination showed the spine “demonstrates normal active ROM …specifically delineated in the PT note.”  There was no C&P examination for the neck condition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck pain at 0%, coded 5010 (arthritis due to trauma), noting passive combined ROM of 380 degrees, and citing “only one joint involved, per AR 635-40.”  Cervical spine ratings are based on active rather than passive ROMs (as noted by the PEB) and note 2 of the general spine formula indicates that ROM measurements are truncated at the normal VASRD ROM for combining and rating.  The CI’s cervical combined active ROM was 330 degrees.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of combined ROM (greater than 170 degrees but not greater than 335 degrees), as reported on the PT examination.  While the CI may have experienced radiating pain from the neck 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 impairments (such as weakness) that directly impacted fitness for duty.  The panel therefore concluded that additional disability rating was not justified on this basis.  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 IVDS 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 10% for the neck condition, coded 5010-5242 (trauma - degenerative arthritis of the spine).  

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 5259-5009, and a disability rating of 10%, coded 5257; both IAW VASRD §4.71a.  In the matter of the neck condition, the panel recommends a disability rating of 10%, coded 5010-5242 IAW VASRD §4.71a.  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 LBP	5237	10%	
Septic Arthritis(Right Knee)	5259-5009	10%	
Septic Arthritis (Right Knee Instability)	5257	10%	
Chronic Neck Pain	5010-5242	10%	
COMBINED	30%	
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170328, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20190011785, 

Dear XXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a permanent 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 permanent 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.