RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-05188
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a Reserve E5, Unit Supply Specialist, medically separated for “bilateral knee pain” with a disability rating of 10%.  “Chronic back pain” was determined to have existed prior to service (EPTS) and was not rated.   

CI CONTENTION:  “Chronic low back pain, migraines, injury to both knees, lumbar disc injury, neck pain, neuropathy of the upper extremities, ringing in both ears.”  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 - 20070621	VARD - 20080505	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain 	5003	10%	Left Knee Sprain	5260	10%	20080108	
			Right Knee Sprain	5260	10%	20080108	
Chronic Back Pain	5299-5237	EPTS	Lumbar Stain	5237	NSC	20080108	
Cervical Spondylosis	Not Unfitting	Cervical Strain	5237	10%	20080108	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	30%	20080108	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB combined the right and left knee conditions as a single unfitting condition coded 5003 (degenerative arthritis) and rated 10%.  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.  

According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI began to have knee pain in February 2006 after she fell and hit her knees on a metal bar shortly after being mobilized.  An MRI of the left knee on 28 March 2007 showed a grade 1 sprain of the medial collateral ligament and an MRI of the right knee showed mild thinning of the trochlear cartilage (degenerative changes) and suggested a possible right medial meniscus tear, however no surgery was recommended for either knee.  

The 13 December 2006 MEB NARSUM examination, 8 months prior to separation, noted complaints of bilateral knee pain.  Physical examination showed an antalgic gait and use of a cane.  Knee range of motion (ROM) showed 3 degrees of hyperextension (normal 0) to flexion of 130 degrees (normal 140).  Both knees were stable.  There was global tenderness without effusion and positive pain with patellofemoral joint grind.  Pain was noted during testing for meniscal pathology and instability.  There was tenderness of the medial and lateral joint lines.  The 13 December 2006 MEB examination (recorded on DD Forms 2807-1 and 2808) showed, “ok” knee ROM with medial and lateral tenderness, but no evidence of instability.  Both knees were permanently profiled and implicated in the commander’s statement as impairing the CI’s duty performance. 

At the 16 November 2007 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported weakness with prolonged walking of 10-15 minutes, stiffness, difficulty going up and down stairs and giving way when walking without support.  Physical examination showed no sign of swelling, weakness, tenderness, subluxation, guarding of movement or locking pain.  Right and left knee flexion was 140 degrees and extension was 0 degrees.  Pain occurred at 140 degrees for both knees.  Additional limitation was noted with repetitive use with pain being the major functional impact.  Bilateral knee X-rays were negative.  

As previously elaborated, the panel must first consider whether the right and left knee conditions remained separately unfitting, having been de-coupled from the combined PEB adjudication.  Both knees were profiled, implicated in the commander’s statement and judged to fail retention standards.  The panel concluded there was not a preponderance of evidence in the service records which overcame the panel’s presumption that the right and left knee conditions were reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting knee conditions at the time of separation.

The PEB rated the bilateral knee condition 10%, coded 5003 (degenerative arthritis), citing degenerative joint disease without limitation of motion.  The VA rated the right and left knee conditions separately at 10% each, coded 5260 (leg, limitation of flexion) based on the C&P examination, citing painful motion and functional loss.  

There was no limitation of motion of either knee which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  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), to support a rating under the respective codes for either knee.  There was no fracture, non-union, or malunion of either femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  However, the panel majority agreed there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for each knee.  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 and 10% for the left knee condition, both coded 5299-5260 IAW VASRD §4.59 (painful motion).  

Chronic Back Condition.  The PEB determined the chronic back condition EPTS based on the CI’s history of chronic back pain since a motor vehicle accident (MVA) in August 2005 prior to entering military service.  The panel found no evidence to indicate this was not correct.  The panel next considered whether or not there was evidence of service aggravation. 

According to the STR and MEB NARSUM, the CI’s back condition began in August 2005 as noted above.  The CI underwent therapy and by November 2005 had resumed running.  However, the back condition was aggravated while wearing full battle gear during training shortly after being mobilized in January 2006.  An MRI in February 2006 showed degenerative disc disease at L4-5 with mild annular disruption and the CI was placed on medical hold effective 28 March 2006. 

A presumption of service aggravation may only be overcome by a preponderance of competent medical evidence and accepted medical principles that the natural progression of a pre-existing condition was clearly unaltered by any consequence of military service.  In this case, the CI was performing all physical requirements while mobilized in June and July of 2005.  Following her MVA in August 2005 she improve and returned to running.  A line of duty determination was issued for aggravation of the back condition.  The PEB provided no evidence or accepted medical principle on which to base a contention that the course of the back condition was not permanently aggravated due to participating in field exercises with full battle gear.  The panel agreed the presumption of service aggravation was not overcome and the back condition was eligible for disability rating.  

The MEB examination showed lumbar lordosis with tenderness and spasm at L2-L5, and sacroiliac tenderness.  The MEB NARSUM examination showed flexion of 20 degrees (normal 90) with localized tenderness, muscle spasm and guarding.  However, some evidence of non-organic pain responses were noted.  

At the VA C&P examination the CI reported stiffness and constant pain in the lower back traveling down the left leg causing difficulty standing and walking.  The required use for a back brace and cane were detailed.  However, no incapacitation was reported.  Physical examination showed a normal gait.  There was no evidence of radiating pain on movement or ankylosis of the lumbar spine.  Muscle spasms were present along with thoracic tenderness.  The ROM study of the thoracolumbar spine showed painful flexion of 90 degrees and combined ROM of 240 degrees (normal).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB did not rate the back condition, analogously coded 5299-5237 (lumbosacral strain) citing compelling evidence supported a finding of EPTS not permanently aggravated beyond natural progression by such service and existed prior to activation.  The VA did not service connect (NSC), the back condition, citing the condition existed prior to service and was not permanently worsened as a result of service.  

Although the MEB NARSUM examination supported a higher rating, the C&P examination was the most proximate examination to separation, was more thorough and included repetition of motion.  Therefore, the panel placed greater probative weight on the C&P examination for its rating recommendation at separation.  There was insufficient limitation of motion to support a 10% rating, however the panel agreed a 10% rating was justified for the presence of painful motion.  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 the panel concluded the back condition was permanently aggravated by service and recommends a disability rating of 10%, coded 5243.

Contended PEB Conditions:  Migraine Headaches and Cervical Spondylosis.  The panel’s main charge is to assess the fairness of the PEB determination that the contended conditions were not unfitting.  The migraine headaches and cervical spondylosis conditions were profiled and implicated in the commander’s statement.  However, both conditions were assigned a “2” profile, which designates a condition which may require physical limitations but is not in all cases disqualifying for continued military service.  Neither of the conditions was judged to fail retentions standards.  

The neck pain was intermittent, described as dull, averaging 6/10 in pain intensity and worsened with flexion of neck such as reading.  Symptoms improved with hyperextension and massaging of neck muscles.  Headaches were intermittent and responded well to prophylactic and abortive migraine medications.  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 bilateral knee condition, the panel majority recommends that each joint be separately adjudicated as follows: an unfitting right knee condition coded 5299-5260 and rated 10%, and an unfitting left knee condition, coded 5299-5260 and rated 10%, both IAW VASRD §4.71a.  The single voter for dissent recommends no change but does not elect to submit a minority opinion.  In the matter of the back condition, the panel concluded there was permanent service aggravation and recommends a disability rating of 10%, coded 5243 IAW VASRD §4.71a.

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	
Right Knee Pain 	5299-5260	10%	
Left Knee Pain 	5299-5260	10%	
Chronic Back Pain 	5243	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.  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.