RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04561
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060809

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Field Artillery Tactical Data Systems Specialist, medically separated for “thoracolumbar spinal pain,” “chronic neck pain”  and “bilateral knee injury,” rated 10%, 10%, and 0%, 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 - 20060711	VARD - 20070216	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Thoracolumbar Spinal Pain	5237	10%	Low Back Pain	5237	10%	20061026	
Chronic Neck Pain	5237	10%	Chronic Cervical Spine Strain	5237	10%		
Bilateral Knee Injury	5099-5003	0%	Chondromalacia, Left Knee	5099-5019	10%		
			Chondromalacia, Right Knee	5099-5019	10%		
Adjustment Disorder	Not Unfitting	PTSD 	9411	30%		
Insomnia		Insomnia	8199-8108	NSC		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Thoracolumbar Spinal Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI injured his back in December 2004 while riding in the bed of a military truck.  During the 3 April 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, physical examination revealed tenderness but no boney abnormality or spasm.  Range of motion (ROM) was recorded as flexion to 85 degrees (normal 90) and combined ROM of 210 degrees (normal 240).  The 13 June 2006 MEB NARSUM examination, 2 months before separation, noted complaints of ongoing back pain, rated at 5-7/10, and aggravated by lifting or bending.  The examiner repeated the MEB examination findings.  

At the 26 November 2006 VA Compensation and Pension (C&P) examination, 3 months after separation, the CI reported non-radiating back pain exacerbated by strenuous activity which did not interfere with activities of daily living.  Physical examination showed normal gait and posture with no spasm or tenderness.  The ROM evaluation showed flexion of 85 degrees and combined ROM of 235 degrees, with pain in all planes of motion.  Repetition did not result in a reduction of ROM.  Neurologic examination and radiologic studies were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbosacral strain).  The VA also rated the back condition 10%, coded 5237, based on the C&P examination, citing forward flexion greater than 60 degrees but not greater than 85 degrees.  Panel members agreed that a 10% rating, but no higher, was justified for limitation of flexion as reported on the MEB & C&P examinations.  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 evidence of intervertebral disc syndrome (IVDS) which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate 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.  

Chronic Neck Pain.  According to the STR and MEB NARSUM, the CI’s neck condition began in December 2004 during the same incident noted above for the back injury.  A 22 March 2006 orthopedic MEB consult, 5 months prior to separation, recorded complaints of daily neck pain, rated at 6-7/10.  On examination there was spasm and tenderness, but gait and spinal contour were not addressed.  The ROM evaluation showed the CI capable of touching his chin to his chest (roughly equal to 45 degrees of flexion (normal)).  The combined ROM was 315 degrees (normal 340).  Neurologic examination was normal.  During the MEB examination, ROM testing showed flexion of 35 degrees and combined ROM of 240 degrees, with no tenderness or spasm.  The MEB NARSUM examination noted CI complaints of ongoing neck pain, rated at 5-7/10, and brought on by lifting or bending.  The examiner reiterated the findings of the MEB examination.  

At the C&P examination, the CI reported pain in the back of his neck which did not interfere with activities of daily living, but was exacerbated by strenuous activity.  Physical examination showed normal posture and gait, and the ROM evaluation, after repetition, revealed flexion of 45 degrees and combined ROM of 260 degrees, limited by pain.  The examiner noted an absence of spasm, weakness and tenderness.  Neurologic findings and radiologic studies were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, coded 5237 (cervical strain).  The VA also rated the neck condition 10%, coded 5237, based on the C&P examination, citing combined ROM greater than 170 degrees but not greater than 335 degrees.  Panel members agreed that a 10% rating, but no higher, was justified for limitation of combined ROM as noted on all examinations proximate to separation.  There was no documentation of IVDS with incapacitating episodes which would provide for a higher rating under that formula.  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).”  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 neck condition.  

Bilateral Knee Injury.  The PEB combined the left and right knee conditions as a single unfitting condition analogously coded 5099 5003 (arthritis, degenerative) and rated 0%.  The 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 also 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 the PEB’s approach of 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 left and right 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 bilateral knee condition began in February 2004 after a twisting injury to the right knee and subsequent left knee pain from the subsequent changes in gait.  Right knee radiologic studies in September 2005 showed malalignment and narrowing of the joint, possible lateral displacement of the kneecap, and possible bipartite kneecap (a congenital condition in which the kneecap fails to fuse into one bone).  For the left knee, the study revealed malalignment and narrowing of the knee joint.  During the MEB examination, bilateral knee ROM was from 0-140 degrees (normal), but painful motion was not addressed.  The MEB NARSUM examination noted CI complaints of bilateral knee pain (right greater than the left on most days), rated at 2/10, and exacerbated by stairs or prolonged sitting.  
At the MEB orthopedic consult, the CI reported constant bilateral knee pain, rated at 4-5/10, which prevented running or prolonged walking.  Physical examination showed no effusion or instability.  There was minimal bilateral tenderness and ROM was recorded as 0-120 degrees for each knee; painful motion was not addressed.  

At the C&P examination, 3 months after separation, the CI reported bilateral knee pain exacerbated by running or extended standing or walking.  Physical examination showed ROM of 0-120 degrees on the right, and 0-130 degrees on the left, with painful motion in both knees, but no ROM degradation with repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 0%, coded 5099-5003 (analogous to degenerative arthritis).  The VA rated each knee 10%, coded 5099-5019 (analogous to bursitis), based on the C&P examination, citing painful and limited ROM. Panel members agreed that the evidence reasonably justified that the functional limitations of each knee contributed to the CI’s inability to perform his military duties and accordingly separate disability ratings are considered.  

Although the post-separation VA examination supported 10% ratings for each knee based on painful motion (§4.59), the panel placed greater probative value on the pre-separation MEB examinations which the PEB relied on in arriving at its rating conclusions.  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 X-ray evidence of involvement of two or more major joints (knees) to support a 10% rating under code 5003.  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history 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 the respective codes.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  After due deliberation, and considering all the evidence, the panel recommends a bundled disability rating of 10% for the bilateral knee condition, coded 5003.  

Contended PEB Conditions: Adjustment disorder and insomnia.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  Adjustment disorder is a condition not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the Board has no basis for recommending it as unfitting.  Neither condition was profiled or implicated in the commander’s statement, nor failed retention standards.  There was no performance-based evidence from the record that either 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 either 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 neck 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 a disability rating of 10%, coded 5003 IAW VASRD §4.71a.  In the matter of the contended adjustment disorder and insomnia, 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	
Thoracolumbar Spinal Pain	5237	10%	
Chronic Neck Pain	5237	10%	
Bilateral Knee Injury	5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

AR20190007246, 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 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 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), XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.

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