RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04768
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061214

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Radar Repairer, medically separated for “chronic low back pain, right knee” with a disability rating of 10%.   

CI CONTENTION:  “I don’t believe that my ankle and knee were both considered in the decision making progress.  Both would keep me from being able to do my job.”  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 - 20060831	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain, Right Knee	5099-5003	10%	No VA Examination Proximate to Separation in Evidence	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:   NA	

ANALYSIS SUMMARY:  

Low Back Pain and Right Knee Condition.  The PEB combined the back and right knee conditions as a single unfitting condition coded analogously to 5003 (degenerative arthritis) and rated 10% IAW the US Army Physical Disability Agency (USAPDA) pain policy.  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.  

Low Back Pain.  According to the service treatment record (STR) and MEB examination (recorded on DD Forms 2807-1 and 2808), the CI’s back pain began in 2002 following a motor vehicle accident.  Scant STR entries included an emergency room visit in 2003 for burning back pain after lifting his dog, and a primary care visit in October 2005 for lower back pain that lasted 2 days.  The permanent profile dated 22 June 2006, 6 months prior to separation, did not list a back condition, and according to the commander’s statement on 8 June 2006, the CI was reasonably capable of performing his military specialty duties which were “more technical than physical.” His knee condition was noted to preclude him from carrying a rucksack, digging, and moving with a combat load.

During the 30 June 2006 MEB examination, the examiner noted an 8-month history of intermittent back pain treated with physical therapy and chiropractic care, but no surgery.  There were no limitations and the CI did not use a brace.  The physical examination noted full back range of motion (ROM).  The 28 July 2006 MEB NARSUM examination, 5 months prior to separation, did not address a back condition in the history or physical findings.  At a primary care visit on 31 July 2006, the CI reported low back pain after picking up his gear and turning.  He had acute pain with turning to either side, but none when stationary.  Physical examination showed a stooped posture, tenderness of the paraspinal muscle spasms, and painful decreased flexion. He was treated with anti-inflammatory and muscle relaxant medication and given work limitations.  There was no VA examination proximate to separation in evidence.

The panel first considered if the back condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The back condition was not profiled or implicated in the commander’s statement, did not fail retention standards, and was not addressed in any way by the MEB NARSUM.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  Members agreed that the preponderance of evidence did not support a conclusion that the functional impairment from the back condition was integral to the CI’s inability to perform his military duties, and accordingly cannot recommend a separate rating for it.

Right Knee Condition.  According to the STR and MEB NARSUM, the CI underwent an arthroscopy in January 2006 that revealed a medial meniscal tear and scar tissue from a previous anterior cruciate ligament reconstruction in 2002.  Despite physical therapy, he continued to have pain and recurrent swelling of his right knee with activity.

The MEB NARSUM examination, 5 months prior to separation, noted complaints of constant pain preventing the CI from bending, twisting, kneeling or crawling.  Physical examination showed tenderness over the anterior knee and along the medial joint line without swelling, effusion, edema, ecchymosis or erythema.  Heel walk was normal, but toe walk was painful, and squatting was limited by pain.  Flexion was to 135 degrees (normal 140) and hyperextension to 5 degrees (normal 0).  Pain with motion was noted throughout the entire range.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back and right knee condition 10%, analogously coded 5099-5003 (arthritis degenerative), citing slight and constant pain IAW the USAPDA pain policy.  Members first considered if the right knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The right knee was implicated by the profile and commander’s statement and failed retention standards.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the bundled knee condition was reasonably considered separately unfitting.  Upon deliberating a rating recommendation for the unfitting knee condition, members noted there was no limitation of flexion of extension to support a rating under diagnostic codes 5260 or 5261.  However, there was evidence of painful motion with functional loss supporting a 10% rating based on §4.59, §4.40 and §4.45.  The panel considered other VASRD leg and knee codes, but all were less applicable and/or not advantageous for rating.  Since unbundling provides no rating benefit to the CI, the panel recommends no change to the PEB adjudication.  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 bundled back and right knee condition.  

BOARD FINDINGS:  In the matter of the “chronic back pain, right knee” condition and IAW VASRD §4.71, the panel majority recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

[AR NUMBER], XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear  XXXXXXXXXXXXXXXXXX

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

Enclosure