RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05151
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20060216

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E3, Administrative Specialist, medically separated for “chronic radiating low back pain” and “chronic right knee pain,” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  In addition to the back and right knee condition, the CI requested review of additional conditions not identified by the Medical Evaluation Board (MEB) and Physical Evaluation Board (PEB).  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 PEB to be unfitting for continued military service, and when specifically requested by the CI, those conditions identified by the 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 – 20060201	VARD - 20070228	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Low Back Pain	5237	10%	Lumbar Strain	5242	20%	20061130	
Right Knee Pain	5099-5003	0%	Chondromalacia Patellae and Right Knee Strain	5099-5014	10%	20061130	
Depressive Disorder	Not Unfitting	Bipolar Disorder (PTSD NSC)	9432	30%	20061214	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Low Back Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI’s back condition began in August 2003 after being thrown onto his back during hand-to-hand combat training.  An MRI in January 2005 noted disc bulges at L3-L4 and L4-L5 with mild neural foraminal narrowing.  The CI was not a surgical candidate per neurosurgery.

Thoracolumbar range of motion (ROM) measurements performed by physical therapy (PT) on 29 April 2005 showed flexion of 80 degrees (normal 90) and combined ROM of 195 degrees (normal 240) after repetition.  There was no objective evidence of painful motion recorded.  

The 8 September 2005 MEB NARSUM examination, 5 months prior to separation, noted complaints of back pain, rated 6/10, but increased to 9/10 with severe back spasms which occurred approximately once every 2 weeks.  With spasms the pain would radiate down his leg. Physical examination noted tenderness of the paravertebral muscles from approximately T10 to the sacrum.  The examiner observed the CI walking easily without exhibiting pain, undressing easily which included taking off socks and getting on the examination table without difficulty or signs of pain.  

Thoracolumbar ROM measurements performed by PT on 29 November 2005, 3 months before separation revealed flexion of 45 degrees and combined ROM of 170 degrees, after repetition, and with complaints of pain in all planes of motion.  

The 30 November 2006 VA Compensation and Pension (C&P) examination, 9 months after separation, showed thoracolumbar spasm and tenderness with an antalgic gait.  ROM was flexion of 45 degrees with combined ROM of 160 degrees with painful motion.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the back condition 10%, coded 5237 (lumbar spine strain), citing pain-limited motion and tenderness.  The VA rated the back condition 20%, coded 5242 (degenerative arthritis of the spine), based on the C&P examination, citing forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 

The panel agreed that a 20% rating, but no higher, was justified for limitation of flexion (greater than 30 degrees but not greater than 60 degrees) as reported on the pre-separation ROM study most proximate to separation  and the post-separation VA examination.  There was no evidence of intervertebral disc syndrome which resulted in incapacitating episodes requiring physician-prescribed bed rest to warrant consideration of rating under that alternate VASRD formula.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the back condition, coded 5237.  

Right Knee Pain.  According to the STR and MEB NARSUM, the CI’s right knee condition began in February 2003 when his knee popped while running during physical training.  The CI underwent right knee arthroscopy with patellar chondroplasty on 30 May 2003 with removal of loose bodies and fibrillated cartilage.  Examination of the menisci was normal.  The CI did well until April 2004 when he developed right knee pain.    

The 1 April 2005 PT evaluation documented an antalgic gait and a positive McMurray’s test (for meniscal pathology).  PT MEB ROM measurements on 29 April 2005 revealed right knee ROM following repetitive motion of 130 degrees (normal 140) and extension of 5 degrees (normal 0).   There was no mention of painful motion.  

The MEB NARSUM examination, 5 months prior to separation, noted complaints of constant gnawing dull pain varying from 1-6/10, made worse with walking or standing.  The knee would also swell at times.  There was a reported history of meniscal surgery.  The CI was seen by orthopedics for an evaluation on 13 September 2005.  Physical examination showed a completely normal gait and full ROM without pain.  The only finding was a slight click as the patella slid over the medial side femoral grove.  The 19 September 2005 rehabilitation consult noted impaired mobility, impaired transfers, and a slight antalgic gait, but that consult was for the back and not the right knee.  

Additional measurements were performed by PT on 29 November 2005, 3 months prior to separation documenting right and left knee ROM following repetitive motion of 130 degrees and extension of 5 degrees (noted as hyperextension).  The examiner stated “ROM restricted only by soft tissue limitation.”  

At the VA C&P evaluation, 9 months after separation, the CI reported right knee pain, weakness, stiffness, swelling, intermittent buckling and instability.  Physical examination showed an antalgic gait (may have been caused by back spasm) with no swelling or instability.  There was abnormal tracking of the patella with sub-patellar tenderness.  McMurray’s test for meniscal pathology was equivocal.  The ROM study showed flexion of 135 degrees and extension of 0 degrees with painful motion.  There was no additional loss of motion on repetitive use.  X-rays were normal.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 0%, analogously coded 5099-5003 (degenerative arthritis), citing full ROM.  The VA rated the right knee condition 10%, analogously coded 5099-5014 (osteomalacia), based on the C&P examination, citing painful or limited motion of a major joint.  

The panel deliberated on the probative value of the medical history and examinations in evidence.  The NARSUM, PEB, and C&P examinations recorded a history of meniscal surgery; however, the source operative arthroscopic report from 2003 did not indicate any abnormal meniscal findings, and there was no other evidence of meniscal surgery.  

Multiple examinations documented subjective functional loss and/or antalgic gait, but only the VA examination documented painful knee motion.  It was noted that although prior PT evaluations and the subsequent VA examination documented painful motion the PT examinations closest to separation did not.  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 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 no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), to support a rating under that code.  The persistence of pain after meniscal surgery would warrant a 10% rating under the 5259 code (cartilage, semilunar, removal of symptomatic); however, despite the repeated histories and PEB disability description, the panel could not find source documentation that the CI had meniscal surgery.  Given the disparate meniscal surgery histories and examinations, the panel majority adjudged there was sufficient evidence of functional loss (antalgic gait at PT and painful motion on the C&P examination) supporting a 10% rating (based on §4.59, §4.40 and §4.45).  Coding analogous to 5259 (meniscal), degenerative changes (5003), or bony changes (5014) was discussed, with the majority favoring the VA rating coding.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 10% for the right knee condition, coded 5099-5014.  

Contended PEB Condition:  Depressive Disorder.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The mental health (MH) disorder was profiled and judged to fail retention standards on the initial MH addendum and the MEB, but no MH symptoms were implicated in the 17 January 2006 commander’s statement.  The 9 June 2005 MH addendum noted mild depression/anxiety with use of chronic medication and “with significant improvement of irritability and mood and no significant report of anxiety continued.”  Mental status examination was normal.  Impairment was mild for military duty and for social or industrial adaptability with a Global Assessment of Functioning score of 80 (transient symptoms or no more than slight impairment).  The 3 January 2006 MEB addendum listed the MH disorder with a profile of S-1.  The commander’s statement indicated only physical limitations.  There was no performance-based evidence from the record that the condition 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 the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the back condition, the panel recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a.  In the matter of the right knee condition, the panel majority recommends a disability rating of 10%, coded 5099-5014 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended depressive disorder, the panel recommends no change from the PEB determination 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	
Low Back Pain	5237	20%	
Right Knee Pain	5099-5014	10%	
	COMBINED	30%	

AR20190008579, 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.  Inquiries 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.

	

Minority Opinion

I disagree with the panel majority in regards to the rating for the unfitting right knee and recommend no change of the 0% PEB rating.  The examination evidence does not detail painful motion until 9 months after separation (see above VA C&P examination), which is consistent with post-separation worsening.  Please review the chronological evidence for the right knee condition detailed below:

-	30 May 2003, operation report, patellar chondroplasty, no meniscal pathology
-	1 March 2005, PT examination, mild antalgic gait, normal ROM, positive McMurray’s
-	1 April 2005, PT examination, mild antalgic gait, normal ROM, positive McMurray’s
-	29 April 2005, MEB ROM measurements, no compensable limitation of motion
-	13 September 2005, orthopedic examination for MEB, “has not seen ortho for knee within one year, request current eval,” full ROM without pain, no patellar crepitus, gait completely normal, only finding was slight click of the patella as noted above
-	29 November 2005, MEB ROM measurements, no compensable  limitation of motion
The case file clearly showed no pre-separation evidence of compensable limitation of motion or painful motion of the right knee to warrant a rating greater than the 0% awarded by the PEB.  The panel majority relies on functional loss (antalgic gait) and 9-month post-separation evidence of painful motion to justify their 10% rating recommendation.  However, it is highly likely that the antalgic gait, in every instance, was caused by back spasms as noted in the adjudication for the back above.  

The pre-separation orthopedic examination appears to hold the most probative value because it was done by an orthopedics, was complete and was most proximate to separation.  This examination showed full ROM without painful motion and a completely normal gait.  Therefore, in the matter of the right knee condition and IAW VASRD §4.71a, the panel minority recommends no change in the PEB adjudication.