RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW
NAME: XXXXXXXXXXXXXXXXX	CASE: PD-2017-04167
BRANCH OF SERVICE: ARMY	SEPARATION DATE: 20050921

SUMMARY OF CASE: Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E3, Automated Logistics Specialist, medically separated for “chronic low back pain” and “bilateral knee pain,” rated 10% each, with a combined disability rating of 20%.

CI CONTENTION:  No specific contention was made.  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 - 20050407	VARD - 20060313	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5237	10%	DDD, Lumbar Spine	5243	10%	20060223	
Bilateral Knee Pain	5099-5003	10%	Chondromalacia Patella, Right Knee	5099-5014	10%	20060223	
			Chondromalacia Patella, Left Knee	5099-5014	10%	20060223	
COMBINED RATING: 20%	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 back condition began during basic training while digging a foxhole. Radiographic studies showed bilateral L5 spondylolysis (stress fracture through the pars interarticularis) and mild disc bulges at L3-4 and L4-5. The pain persisted and radiographic studies in April 2004 showed bilateral L5 spondylolysis and an L5-S1 left annular tear. Surgery was recommended, but the CI opted to continue conservative therapy. During the 7 December 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 9 months prior to separation, the CI

reported lower back pain. Physical examination revealed tenderness, spasm, and decreased and painful range of motion (ROM) of the thoracolumbar spine.

The 16 December 2004 MEB NARSUM examination, 9 months prior to separation, noted complaints of dull aching back pain and periods of electrical shock like pain with radiation down the left leg, which was aggravated by back extension, lifting, lateral bending, marching, and “lying in an improper position.” Physical examination showed tenderness and muscle spasms, but the neurosurgical examination showed the spine was non-tender without spasms. Motor strength was normal. The ROM study of the thoracolumbar spine, after repetition, showed flexion of 75 degrees (normal 90) and combined ROM of 205 degrees (normal 240) with pain at the end ranges.

At the 16 February 2006 VA Compensation and Pension (C&P) examination, 5 months after separation, the CI reported LBP. Physical examination showed a normal gait, but examination of the spine was deferred. At the VA C&P joints examination a week later the CI denied radiation  of pain, bowel or bladder problems, or incapacitation. Physical examination showed good heel and toe rising and no muscle spasms, but there was spinal tenderness at L4 and L5. The ROM evaluation showed 70 degrees of flexion and 140 degrees of combined ROM with pain on extention. Repetitive motion caused an additional 10 degrees of flexion limitation to 60 degrees. There were no sensory or motor deficits and straight leg raise testing (to determine nerve root irritation) was negative.

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 muscle spasm. The VA also rated the back condition 10%, coded 5243 (intervertebral disc syndrome [IVDS]), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees. Panel members considered the somewhat disparate ROM evaluations and agreed the pre-separation NARSUM was just as complete as the post- separation C&P examination. Although the NARSUM was temporally more distant than the C&P, the panel agreed the 5-month post-separation C&P ROM measurements may have represented post-separation worsening and awarded more probative rating value to the NARSUM.

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) or, alternatively, combined ROM (greater than 120 degrees but not greater than 235 degrees), as reported on the NARSUM examination. 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 concluded there was insufficient cause to recommend a change in the PEB adjudication for the back condition.

Bilateral Knee Pain. The PEB combined the right and left knee conditions under a single disability rating, coded analogously to 5003 and rated 10%. 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 adjudicated by the PEB. The evidence for the right and left knee conditions is presented together, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to the STR and MEB NARSUM, the CI’s knee pain began during basic training, which was attributable to excessive running and marching. X-rays of the knees showed mild osteoarthritis bilaterally and calcification within the proximal medial collateral ligament, which is highly associated with ACL (anterior cruciate ligament) tears. An orthopedic clinic visit in November 2003 revealed extension-to-flexion of 0-140 degrees (normal), but there was pressure pain in the medial and lateral joint spaces. Provocative testing to elicit meniscal pathology was positive, but there was no laxity, instability or crepitus. An MRI was reported to show degeneration of the lateral and medial meniscus of the right knee with cartilage damage of the femoral condyle, and a rupture of the medial meniscus and degeneration of the lateral meniscus along with cartilage damage of the femoral condyle of the left knee. The orthopedic surgeon recommended arthroscopy on both sides with a partial meniscectomy, but the CI deferred surgery.

During the MEB examination, 9 months prior to separation, the CI reported knee pain. Physical examination revealed bilateral knee pain with ROM testing. The MEB NARSUM examination, a week later, noted complaints of knee pain with a severity of 8-9/10 with running, marching, negotiating stairs, and prolonged standing; however, most of the time the pain was between 6- 7/10. Physical examination showed medial and lateral joint space tenderness and provocative testing to elicit meniscal pathology was positive. However, the knees were ligamentously stable and there was no patellar crepitus. The bilateral knee ROM measurements after repetition were 0-120 degrees. The examiner noted pain at the very endpoint of passive flexion, but this was at the “mechanical limits of his knee joints.”

Post-separation X-rays of the knees in November 2005 demonstrated no evidence of a fracture or joint effusion, and joint spaces were preserved, but there was ossification in the proximal aspect of the medial collateral ligament on the left. An MRI of the bilateral knees in January 2006 showed low-grade patellar chondromalacia with intact medial and lateral menisci, intact cruciate and collateral ligaments and no effusion.

At the 23 February 2006 VA C&P joints examination, 5 months after separation, the CI complained of knee pain without flare-ups, decreased ROM, and an inability to climb, run, or squat. Physical examination showed 100 degrees of squatting capability with pain in the knee (which knee was not identified). The ROM measurements of the knees showed 140 degrees of flexion (normal) and 0 degrees of extension (normal) without an indication of pain. However, there was pain with patellar grinding and pain on palpation of the articular surfaces of the patella bilaterally. Repetitive motion caused an increase in pain, but no decrease in ROM or evidence of fatigability, weakness, lack of endurance or incoordination.

The panel directed attention to its rating recommendation based on the above evidence. The PEB rated the bilateral knee condition 10%, coded 5099-5003 ( degenerative arthritis), citing arthritis of two major joints. The VA rated the left and right knee conditions 10% for each knee, analogously coded 5099-5014 (osteomalacia), based on the C&P examination citing painful or limited motion of a major joint.

Panel members first considered if the right and left knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The commander’s statement implicated both knees and both knees were judged to fail retention standards by the MEB. Members agreed, therefore, that the right and left knee conditions were reasonably justified as separately unfitting and that each knee met the VASRD §4.71a criteria for a separate disability rating.

There was no limitation of flexion or extension in either knee that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261). There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) or history of surgery to remove a meniscus (5259) to support a rating under those codes for either knee. 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) for either leg. However, there was evidence of painful motion at both the MEB and VA examinations with functional loss supporting a 10% rating for each knee (based on §§4.59,
4.40 and 4.45). 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 5099-5003 and a disability rating of 10% for the left knee conditions, coded 5099-5003.

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 bilateral knee condition, the panel recommends that each joint be separately adjudicated as follows: an unfitting right knee condition coded 5099-5003 rated 10% and an unfitting left knee condition coded 5099-5003 rated 10%, both 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 Low Back Pain	5237	10%	
Right Knee Pain	5099-5003	10%	
Left Knee Pain	5099-5003	10%	
	COMBINED	30%	

The following documentary evidence was considered:

	PD-2017-04167

AR20190011748, XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXX

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), 

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

	PD-2017-04167