RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-04925
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060912

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Infantryman, medically separated for “chronic pain right ankle and right knee” and “chronic low back pain,” rated 10% and 0% respectively, with a combined disability rating of 10%.  

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 - 20060516	VARD - 20070807	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Right Ankle and Right Knee	5099-5003	10%	Status Post (S/P) Right Ankle Arthroscopy 	5271	20%	20070608	
			S/P Right Knee Partial Medial Meniscectomy	5259	10%	20070608	
Chronic Low Back Pain	5299-5237	0%	Degenerative Joint Disease (DJD) of the Lumbar Spine 	5242	10%	20070608	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Pain Right Ankle and Right Knee.  The PEB combined the right ankle and knee conditions under a single disability rating, coded analogously to 5003 (degenerative arthritis) and rated 10% with application of the US Army Physical Disability Agency pain policy.  This approach by the PEB not uncommonly reflected its judgment 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 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.  

In this case, both the right ankle and knee conditions were separately profiled and separately considered to fail retention standards.  The commander’s statement did not specify any specific injury, but implicated physical tasks of moving and lifting and did not provide any information which would permit the panel to discriminate the performance limitations attributable to either the right knee or the right ankle over the other.  Since undue speculation would be required to conclude that impairment from either the ankle or knee would not have unacceptably interfered with the performance of military duties, members agreed that the right ankle and right knee were each reasonably justified as separately unfitting.  Accordingly separate disability ratings are recommended for each.  The evidence for the right ankle and knee conditions is presented separately, with attendant recommendations regarding rating.  

Right Ankle.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent surgery (Brostrom procedure) in March 2003.  An MRI on 4 May 2005 documented a talar osteochondral defect (arthritic change).  Ankle pain increased following a motorcycle accident in July 2005 and the CI underwent a second surgery with debridement of a chondral flap on 20 October 2005.  The 6 March 2006 physical therapy (PT) range of motion (ROM) evaluation, 6 months prior to separation, showed painful ROM with dorsiflexion of 15 degrees (normal 20) and plantar flexion of 45 degrees (normal).  During the 9 March 2006 MEB examination (recorded on DD Forms 2807-1 and 2808) and the MEB NARSUM addendum, the same date, the CI reported right ankle pain requiring narcotic pain medication.  Physical examination revealed a normal gait with no specific evaluation of the ankle.  

At the 8 June 2007 VA Compensation and Pension (C&P) examination, 9 months after separation, the CI reported right ankle pain with limitations on walking and standing.  Physical examination showed an antalgic gait, tenderness, painful movement and weakness without instability.  Right ankle ROM testing showed painful dorsiflexion of 5 degrees and plantar flexion of 35 degrees, with no changes following repetition.  

The panel deliberated on the probative value of the examinations in evidence.  All comprehensive examinations in evidence documented degenerative changes with painful motion causing functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  The post-separation C&P ROM was considered an outlier as clearly disparate from all other evaluations in evidence.  There was therefore no limitation of dorsiflexion or plantar flexion that supported a higher rating under the VASRD diagnostic code for limitation of motion (5271).  Given the history of trauma to the ankle, ideal coding is analogous to 5010 (arthritis due to trauma).  After due deliberation, and considering all the evidence, the panel recommends a disability rating of 10% for the separately unfitting right ankle condition, coded 5099-5010.  

Right Knee.  According to the STR and MEB NARSUM, the CI’s right knee condition began in July 2005 following the above mentioned motorcycle accident.  The CI underwent right knee arthroscopy on 20 October 2005 for a torn meniscus with partial medial meniscectomy and partial chondroplasty of the femoral condyle.  The PT evaluation documented right knee pain with ROM of flexion to 125 degrees (normal 140), and extension to 0 degrees (normal).  During the MEB examination and MEB NARSUM addendum, 6 months prior to separation, the CI reported right knee pain requiring narcotic pain medication.  Physical examination showed a normal gait with no right lower leg deformity or muscle atrophy.  Right knee ROM was extension to 125 degrees and flexion to 0 degrees.  

At the C&P examination, 9 months after separation, the CI reported right knee pain following meniscal surgery with limitations on walking and standing.  Physical examination showed an antalgic gait, crepitus, tenderness, painful movement and weakness without instability or patellar abnormality.  Right knee ROM was painful with flexion to 120 degrees and extension to 0 degrees, with no changes following repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the right knee condition with the right ankle condition and applied a single 10% rating coded 5099-5003.  The VA rated the right knee condition 10%, coded 5259 (cartilage, semilunar, removal of, symptomatic), based on the C&P examination, citing meniscal surgery and limited ROM.  There was no limitation of flexion or extension 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) 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).  However, the 5259 code (cartilage, semilunar, removal of, symptomatic) was applicable in this case, and given the CI’s symptoms, warranted a 10% rating as supported by all examinations proximate to separation.  After due deliberation, and considering all the evidence, the panel recommends a disability rating of 10% for the unfitting right knee condition, coded 5259.  

Chronic Low Back Pain.  According to the STR and MEB NARSUM, the CI’s back condition began in July 2005 following the above mentioned motorcycle accident.  An MRI in September 2005 showed spondylolysis at L5, degenerative disc disease, and lumbar facet arthropathy.  The PT evaluation documented painful back ROM with flexion of 80 degrees (normal 90) and combined ROM of 185 degrees (normal 240).  At the MEB examination, 6 months prior to separation, and the MEB NARSUM addendum, the CI reported back pain.  Physical examination showed a normal gait and thoracolumbar spine lordosis without muscle spasm, but there was tenderness.  The ROM evaluation showed painful ROM with flexion of 80 degrees and combined ROM greater than 195 degrees, but less than 235 degrees.   

At the C&P examination, 9 months after separation, the CI reported back pain with stiffness, decreased motion, weakness and spasms.  Physical examination showed no tenderness, and no spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour.  The ROM evaluation showed painful motion with flexion of 90 degrees and combined ROM greater than 190 degrees, but less than 230 degrees (missing left rotation value).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 0%, coded analogously as 5299-5237 (lumbar spine strain), citing ROM limited by pain with likely application of AR 635-40 B29.  The VA rated the back condition 10%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing painful and limited ROM.  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) as reported on the NARSUM examination and/or combined ROM (greater than 120 degrees but not greater than 235 degrees) as reported on all examinations proximate to separation.  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 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 back condition, coded 5242.  

BOARD FINDINGS:  In the matter of the right ankle and knee conditions, the panel recommends that each joint be separately adjudicated as follows: an unfitting right ankle condition coded 5099-5010 and rated 10%, and an unfitting right knee condition, coded 5299-5259 and rated 10%, both IAW VASRD §4.71a.  In the matter of the back condition, the panel recommends a disability rating of 10%, coded 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 Pain Right Ankle	5099-5010	10%	
Chronic Pain Right Knee	5299-5259	10%	
Chronic Low Back Pain	5242	10%	
COMBINED	30%	

XXXXXXXXXXXXXXXXXX

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.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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

Sincerely,					       

Enclosure