RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-04975
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20050112

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an National Guard E-6, Motor Transport Operator, medically separated for “chronic low back pain” and “chronic cervical pain,” rated 10% each, with a combined disability rating of 20%.   

CI CONTENTION:  The CI stated he has quality of life issues due to misdiagnosis or under diagnosis.  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 - 20051115	VARD - 20060323	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain	5299-5242	10%	Mild Lumbar Spine Stenosis	5238	10%	20050405	
Chronic Cervical Pain	5299-5237	10%	Cervical Spine Condition	8510	20%	20050405	
Bilateral Osteoarthritis in Knees	Not Unfitting	Left Patellofemoral Syndrome	5099-5010	10%	20050405	
		Right Patellofemoral Syndrome	5099-5010	10%	20050405	
Bilateral Pes Planus	Not Unfitting	Bilateral Pes Planus	5276	10%	20050405	
Right Shoulder pain	Not Unfitting	Residuals, Right Shoulder	5201	20%	20051101	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Chronic Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in 2003 after participating in the Army physical fitness test.  The CI reported back and left lower extremity (LLE) pain.  An MRI on 14 September 2004 showed degenerative disc disease and congenital spinal stenosis with mild to moderate lumbar spinal stenosis at L2-L5 and mild to moderate neuroforaminal (space through which the spinal nerves exit) narrowing at all levels.  Electrodiagnostic studies in December 2004 could not exclude a lumbar radiculopathy.  

At the 5 April 2005 VA Compensation and Pension (C&P) examination, 9 months before separation, the CI reported constant low back pain without incapacitation.  Physical examination showed radiating pain with left thigh movement.  There was muscle spasm and tenderness present.  Straight leg raise (SLR) testing to elicit radicular symptoms was negative bilaterally.  Spine range of motion (ROM) was flexion of 90 degrees (normal) and combined ROM of 240 degrees (normal), after repetitive use.  There was decreased sensation of the front and inside of the left leg and lateral foot and mild decreased strength (4/5) of left foot and great toe dorsiflexion.  

A neurosurgical follow-up visit on 21 June 2005, 7 months prior to separation, noted symptom improvement with epidural steroid injections.  Physical examination showed normal strength and reflexes.  The neurosurgeon felt the risks of surgery outweighed the benefits and recommended conservative treatment.  The 7 September 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 4 months prior to separation, showed decreased flexion of the low back.  The CI was wearing a lumbar support brace.  The 13 September 2005 MEB NARSUM examination noted complaints of low back and LLE pain.  Physical examination showed a normal gait, mild tenderness and negative SLR.  Back ROM was flexion of 60 degrees and combined ROM of 200 degrees.  A 27 September 2005 physical therapy (PT) ROM study showed flexion of 60 degrees and combined ROM of 200 degrees with painful motion.  The therapist noted the CI was able to achieve 95 degrees of trunk flexion in a sitting position.  Repeat electrodiagnostic studies in October 2005 showed no evidence of lumbar radiculopathy.  

At the 18 September 2006 VA C&P examination, 8 months after separation, the CI reported constant low back pain that radiated to the legs and torso.  He denied the condition caused any incapacitation.  Physical examination showed an abnormal gait due to the right knee.  He did not require an assistive device for ambulation.  There was no radiating pain on movement.  There was no tenderness or muscle spasm and SLR was negative.  Thoracolumbar ROM testing showed flexion of 80 degrees and combined ROM of 225 degrees with painful motion.  The examiner noted after repetition there was an additional limitation of motion by 10 degrees, without further specificity.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, analogously coded 5299-5242 (degenerative arthritis of the spine) citing painful motion, limitation of flexion and tenderness.  The VA also rated the back condition 10%, coded 5238 (spinal stenosis), based on the April 2005 C&P examination, citing forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees.  The 10% rating was continued after the September 2006 C&P examination.  

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 pre-separation and post-separation VA examinations.  Although the PT MEB ROM of flexion of 60 degrees was just within the 20% rating criteria, the panel considered the VA examinations provided convincing evidence that the CI’s thoracolumbar ROM was greater than flexion of 60 degrees and/or combined ROM of 120 degrees.  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 the alternate VASRD formula for that condition.  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 Cervical Pain.  According to the STR and MEB NARSUM, the CI’s neck condition began in 2004 after participating in training.  An MRI in November 2004 showed a right disc protrusion at C4-5 causing neuroforaminal narrowing and electrodiagnostic studies in December 2004 showed a right cervical radiculopathy and compression of the right median nerve at the wrist.  

At the 5 April 2005 C&P examination, the CI reported constant neck pain that did not cause incapacitation.  Physical examination showed radiating pain with right hand movement.  There was muscle spasm and tenderness present.  Cervical flexion was 30 degrees (normal 45) and combined ROM was 235 degrees (normal 340) with painful motion.  There was no additional loss of motion with repetitive use.  There was decreased sensation of the right shoulder, upper arm, lateral forearm, thumb and long finger.  No motor weakness was documented.  

The MEB examination showed decreased ROM of the cervical spine and the MEB NARSUM examination noted complaints of neck pain and pain that radiating down the right arm with numbness and tingling, aggravated by neck movement and headaches.  Cervical spine ROM was flexion of 50 degrees and combined ROM of 230 degrees.  Upper extremity strength was normal.  

A VA spine examination on 15 September 2005 noted that epidural injections had improved the CI’s cervical issues.  Repeat electrodiagnostic studies in October 2005 did not show evidence of cervical radiculopathy.  

At a primary care examination on 13 January 2006, the day of separation, the CI reported physical therapy helped his symptoms.  He still had soreness, but no motor or sensory deficits.  Physical examination showed full ROM of the neck without crepitus.   A 12 July 2006 chiropractic examination, 6 months after separation, indicated the CI had been in a motor vehicle accident on 18 June 2006.  He was wearing a seat belt and denied any head impact.  The ROM evaluation showed flexion of 40 degrees and combined ROM of 270 degrees.

At the 18 September 2006 C&P examination, the CI reported constant neck pain, stiffness, and weakness, but denied the condition caused any incapacitation.  The VA examiner indicated there was no functional impairment due to the neck condition.  Physical examination showed no tenderness or muscle spasm.  There was no radiating pain on movement.  Cervical ROM after repetition was flexion of 40 degrees and combined ROM of 290 degrees with painful motion.  The examiner noted after repetition there was additional limitation of motion by 10 degrees, without further specificity.    

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the neck condition 10%, analogously coded 5299-5237 (cervical strain), citing ROM of 235 degrees.  The VA rated the neck condition 20%, coded 8510 (mild paralysis of the upper radicular group (fifth and sixth cervicals)), based on the April 2005 C&P examination, citing mild incomplete paralysis of shoulder and elbow movements.  The 20% rating was continued after the September 2006 C&P examination.  

The panel agreed that a 10% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 40 degrees) and combined ROM (greater than 170 degrees but not greater than 335 degrees, as reported on the chiropractic examination proximate to separation.  The 8 months post-separation VA examination indicated that after repetition, joint motion was decreased by 10 degrees, without further description.  The panel considered it overly speculative to assume all 10 degrees were due to reduced flexion, which was required to support the next higher rating.  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 incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under the alternate VASRD formula for IVDS.  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.  

Contended PEB Conditions:  Bilateral Osteoarthritis in the Knees, Bilateral Pes Planus and Right Shoulder Pain.  The panel’s main charge is to assess the fairness of the PEB determinations that the contended conditions were not unfitting.  All of the conditions were profiled and determined to fail retention standards.  The panel noted the PEB adjudicated bilateral knee and bilateral pes planus conditions as not unfitting and in this circumstance when unbundled there must be a preponderance of evidence that each joint is unfit to overcome the PEB’s not unfitting determinations.  

Bilateral knee condition.  According to the STR and the MEB NARSUM, the CI gradually developed bilateral knee pain, but began having more problems in 2004.  He reported popping and knee pain when going up and down stairs with some swelling.  The right knee was worse than the left.  An orthopedic examination on 24 January 2004 noted the left knee was minimally symptomatic, whereas the right knee was markedly symptomatic.  Bilateral knee X-rays were normal.  The ROM study showed bilateral knee ROM of 0-120 degrees (0-140 normal) with pain and crepitus with deep knee bends.  Both knees were stable and testing for meniscal pathology was positive on the right.  The diagnosis was chondromalacia patella for both knees and probable meniscal tear on the right.  An MRI of the right knee in January 2005 showed chondromalacia patella.  

The CI underwent arthroscopy of the right knee on 29 April 2005 with chondroplasty of the medial femoral condyle and patella.  No meniscal tears were seen.  MRI of the left knee on 5 July 2005 showed chondromalacia patella with a non-displaced defect in the patella, degenerative meniscal changes, without tear, and a small effusion.  

Decreased flexion of the right knee to 90 degrees (normal 140) was noted on the MEB examination, but the left knee was not addressed.  The MEB NARSUM examination noted complaints of bilateral knee pain, right greater than left.  Physical examination showed right knee ROM was flexion of 130 degrees and extension was 0 degrees and left knee flexion was 129 degrees and extension was 0 degrees.  There was no swelling or evidence of instability.  The PT ROM study on 27 September 2005, which was the same as noted on the MEB NARSUM, but the therapist commented that the CI was able to ascend and descend stairs, but complained of left medial knee pain while descending.  The CI had an abnormal gait with a limp favoring the right leg and he was wearing a right knee brace.  

At the 8 months post-separation C&P examination, the CI reported constant right knee pain with stiffness, swelling, locking and giving way.  He also reported difficulty with prolonged standing, stooping and stairs.  The CI reported the condition did not cause incapacitation.  Physical examination showed no swelling, tenderness, crepitus, weakness, abnormal movement, subluxation or guarding of movement.  Knee ROM was flexion of 110 degrees and extension of 0 degrees, with painful motion.  After repetition the joint motion was additionally limited by 10 degrees by pain, fatigue, and lack of endurance and pain had the major impact.  There was no evidence of instability or meniscal pathology.  

The panel first considered if the right and left knee conditions were unfitting at separation.  Both knees were profiled and judged to fail retention standards.  The commander’s statement implicated recent surgical procedures which could have referred to the right knee and/or the right shoulder.  The left knee may have been implicated by the commander noting future surgical procedures would likely impact the CI’s duty performance.  At treatment visits in the STR the right knee condition was noted to be worse than the left and there was more support in the commander’s statement that the right knee impaired the CI’s duty performance than the left.  After lengthy debate, the panel majority concluded there was a preponderance of evidence that the right knee condition was unfitting, but not the left.  Members agreed it required speculation to conclude the left knee was implicated by the commander and even if so, the commander himself would have been speculating that future surgeries would additionally impair the CI’s duty performance.  

The panel directed attention to its rating recommendation for the unfitting right knee based on the above evidence.  The VA rated the right knee condition 10%, coded 5099-5010 (analogous to traumatic arthritis) based on the April 2005 C&P examination.  The 10% rating was continued after the September 2006 C&P examination.  

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 evidence of painful and limited motion with imaging evidence of arthritis to support a 10% rating under code 5003.  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.  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).  There was therefore no higher than a 10% rating supported with any applicable VASRD §4.71a code.  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 5003.  

Bilateral pes planus.  According to the STR and MEB NARSUM, the CI reported worsening of his pes planus symptoms in 2003 with pain in the bottoms of his feet, aggravated by activity.  At serial podiatry visits beginning in September 2005, the CI began to note significant improvement in his bilateral foot pain with treatment of posterior tibial tendonitis, pes planus and plantar fasciitis of both feet.  At a podiatry visit on 20 October 2005 the CI reported an 80 percent improvement in his foot pain since he started physical therapy.  At a 1-month pre-separation podiatry follow-up visit, the CI reported no pain in his feet and continued to wear orthotics.  Physical examination showed no pain to palpation along the posterior tibial tendon or plantar fascia.  The panel first considered if the bilateral foot condition was unfitting at separation.  Although both feet were profiled and judged to fail retention standards, podiatry notes proximate to separation indicated continued treatment led to resolution of the CI’s bilateral foot pain prior to separation.  Therefore, the panel concluded there was not a preponderance of evidence that the bilateral pes planus condition was unfitting at separation and so no additional disability rating is recommended.  

Right shoulder.  According to the STR and MEB NARSUM, the CI underwent right shoulder surgery on 22 July 2005 for debridement of a degenerative labral tear and open acromioplasty.  The 23 March 2006 VA Rating Decision showed the CI had a 20% disability rating for the right shoulder since June of 1987, which was increased to 100% for surgery in July 2005, and returned to 20% after the surgical recovery period.  There are NCO evaluation reports in the record from 2000 to 2003 which indicate the CI performed his duties in a superior fashion, and was an excellent leader, including regarding physical fitness objectives, despite having chronic shoulder problems of a similar severity.  

The panel first considered if the right shoulder condition was unfitting at separation.  The shoulder was listed on the final profile; however, the panel noted there was no shoulder condition listed on the April 2005 permanent profile at MEB initiation.  The shoulder condition was implicated by the commander’s statement and judged to fail retention standards; however, the panel noted the MEB NARSUM and commander’s statement occurred only a couple months after the shoulder surgery, which happened after the CI was referred into the DES process.  The PEB indicated the shoulder was not unfitting because it had been a longstanding problem and had not prevented the CI’s successful performance of his duties.  Although members agreed the right shoulder may have been unfitting for continued military service following the July 2005 surgery, IAW DoDI 1332.38 adequate performance to the point of referral into the physical evaluation process supports a finding of fitness for duty, even if the condition may preclude continued military service.  Therefore, the panel concluded there was not a preponderance of evidence to overcome the PEB’s determination that the right shoulder was not unfitting and so no additional disability rating is 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 contended right knee condition, the panel majority agrees it was unfitting and recommends a disability rating of 10%, coded 5003 IAW VASRD §4.71a.  The single voter for dissent recommends no change from the PEB determination as not unfitting but does not elect to submit a minority opinion.  In the matter of the contended left knee, bilateral pes planus and right shoulder conditions, 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	
Chronic Low Back Pain	5299-5242	10%	
Chronic Cervical Pain	5299-5237	10%	
Right Knee Osteoarthritis	5003	10%	
COMBINED	30%	

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), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application.

Sincerely,		      

Enclosure