RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE: PD-2017-03967 BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20071223

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Armor Crewman, medically separated for “low back pain” and “osteoarthritis, causing bilateral knee pain,” rated 10% each, 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 - 20070713	VARD - 20081031	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	Lumbar Strain	5237	10%	20080722	
…Bilateral Knee Pain	5003	10%	Left Knee Strain	5260	10%	20080722	
			Right Knee Strain	5260	10%	20080722	
Mild Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	STR	
Non Cardiac Chest Pain	Not Unfitting	No VA Placement	
Depressive Disorder	Not Unfitting	PTSD with Depressive Disorder	9411	30%	20080813	
PTSD	Not Unfitting					
Alcohol Abuse	Not Unfitting	Alcohol Dependence	9499-9326	NSC	20080813	
COMBINED RATING: 20%	COMBINED RATING OF ALL VA CONDITIONS: 80%	

ANALYSIS SUMMARY:

Chronic Low Back Pain. According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent an L4-5 fusion on 19 January 2006 for a central disc herniation.  The 26 January 2007 MEB NARSUM, 11 months prior to separation, noted complaints

of continued low back pain, worse than prior to surgery, but resolved radiculopathy. The examiner documented tenderness over the lower lumbar spine with no paravertebral spasms, and referred to 30 January 2007 physical therapy (PT) thoracolumbar range of motion (ROM) measurements which showed flexion to 50 degrees (normal 90) and combined ROM of 160 degrees (normal 240) after repetition and limited by pain. A civilian PT evaluation in July 2007, 5 months prior to separation, recorded “trunk” flexion of 16 degrees and combined ROM of 130 degrees.

At the 22 July 2008 VA Compensation and Pension (C&P) examination, 7 months after separation, the CI reported constant, sharp, aching pain, rated at 5/10, with stiffness and weakness, but no incapacitation. Physical examination showed normal posture and gait with lumbar tenderness but no radiating pain on movement or muscle spasms. Spinal curvature was normal with no evidence of intervertebral disc syndrome (IVDS). Thoracolumbar flexion was to 75 degrees and combined ROM was 225 degrees, with painful motion. Spinal joint function was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the back condition 10%, coded 5237 (lumbosacral strain), citing tenderness and ROM “somewhat limited by pain.” The VA also rated the back condition 10%, coded 5237, based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. Panel members first determined that the NARSUM examination, coupled with the non-VASRD compliant civilian PT ROMs (“trunk flexion”) which documented significant lumbar motion restriction, had the greatest probative value for rating at separation; and that the VA examination represented post-separation improvement. 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). 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 20% for the back condition, coded 5241 (spinal fusion).

Bilateral Knee Pain. The PEB combined the right and left knee conditions under a single disability rating, coded 5003 (degenerative arthritis) and rated 10%. This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, with 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.

According to the STR and MEB NARSUM, the CI underwent a right knee arthroscopic patellar tendon debridement in April 2006, and left knee arthroscopy with extensive synovectomy and incision of the patellar tendon on 2 June 2006. At an orthopedic appointment on 18 July 2006, he reported some soreness but that the knees were “feeling better.” The provider found a minimally antalgic gait and guarding with patellar pressure, and recommended additional PT.

At the 4 December 2006 MEB consult performed by physical medicine, 12 months prior to separation, the CI reported anterior right knee pain and anterior and lateral left knee pain. Symptoms were worse after prolonged sitting, walking uphill, running and squatting with pain rated at 5/10.  Physical examination showed a slow and stiff gait and bilateral medial  (meniscal

signs) and left knee lateral joint line tenderness, but knee ROM was within normal limits. During the MEB examination (recorded on DD Forms 2807-1 and 2808) the next day, the examiner documented full, active bilateral knee ROM with retropatellar crepitus and pain. The knees were stable to valgus/varus stress with drawer/Lachman/McMurray testing was negative. Bilateral knee MRI studies on 6 December 2006 showed intrasubstance degeneration in the posterior horn medial and lateral meniscus, effusion, and mild degenerative changes in both knees; X-rays showed bilateral tricompartmental osteoarthritis.

The MEB NARSUM noted CI complaints of continued bilateral knee pain, which was somewhat improved since surgery, and occasional painful popping greater on the right side than the left. Physical examination noted full active ROM with no tenderness over the joint lines, but positive retropatellar crepitus bilaterally with discomfort on compression. The knees were stable to varus and valgus stress with negative drawer, Lachman and McMurray testing. Strength and reflexes were normal. The examiner referred to the 30 January 2007 PT ROM study which recorded right knee flexion from 0-110 degrees (normal 0-140), and left knee flexion from 0-118 degrees, after three repetitions.  Mechanical limitation was noted for both knees.

Additional PT ROM measurements on 24 August 2007, 4 months prior to separation, recorded left knee flexion from 0-120 degrees, after repetition, and limited by soft tissue approximation. Right knee flexion was from -5-125 degrees limited by increased knee joint swelling and mechanical/tissue approximation, with pain at end ranges of flexion and extension.

At the VA C&P examination, the CI reported constant pain, rated at 5/10. Physical examination showed normal gait and posture with no signs of edema, effusion, weakness, redness, heat or guarding. Bilateral ROM was from 0-140 degrees with pain at the endpoints. There was tenderness and crepitus of both knees, but neither knee was additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Knee X-rays were normal.

The panel directed attention to its rating recommendation based on the above evidence. As noted above, the PEB rated the bundled right and left knee conditions 10%, coded 5003, citing no loss of motion. The VA rated the each knee condition 10%, coded 5260 (leg, limitation of flexion), based on the C&P examination, citing painful motion of each knee. Panel members first considered whether each knee, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. In this case, both knees were profiled, implicated by the NARSUM and commander’s statement, and failed retention standards. The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either knee over the other. Since undue speculation would be required to conclude that impairment from either knee would not have unacceptably interfered with military specialty performance, the panel agreed that each knee was reasonably justified as separately unfitting.

There was no compensable limitation of flexion or extension (5260 or 5261) for either knee or history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258). Although meniscal pathology was clearly noted on diagnostic imaging of each knee, there was no history of surgery to remove a meniscus (5259). Additionally, 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). However, there was evidence of painful motion with functional loss supporting a 10% rating (based on
§4.59, §4.40 and §4.45) for each 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 5003.

Contended PEB Conditions: Mild Obstructive Sleep Apnea (OSA), Non-Cardiac Chest Pain, Depressive Disorder, PTSD, and Alcohol Abuse.  The panel’s main charge is to assess the fairness

of the PEB determination that the contended conditions were not unfitting. None of the conditions were profiled or specifically implicated in the commander’s statement (although sadness and lack of motivation were noted), nor failed 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 back condition, the panel recommends a disability rating of 20%, coded 5241 IAW VASRD §4.71a. In the matter of the bilateral knee condition, the panel recommends that each joint be separately adjudicated as follows: an unfitting right knee condition coded 5003 and rated 10%, and an unfitting left knee condition, coded 5003 and rated 10%, both IAW VASRD §4.71a. In the matter of the contended obstructive sleep apnea, chest pain, depressive disorder, PTSD, and alcohol abuses, 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	
Low Back Pain	5241	20%	
Osteoarthritis, Left Knee	5003	10%	
Osteoarthritis, Right Knee	5003	10%	
	COMBINED	40%	

PD-2017-03967 

AR20190011660, XXXXXXXXXXXXXXXXXXX 

Dear XXXXXXXXXXXXXXXXXXX

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 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 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), XXXXXXXXXXXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

PD-2017-03967