RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-05535
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060125

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was a National Guard E4, Petroleum Supply Specialist, medically separated for “chronic back pain due to degenerative disc disease [DDD]” and “chronic bilateral knee pain” rated 10% and 0%, respectively, with a combined disability rating of 10%.  

CI CONTENTION:  “I’m still having to take physical therapy for them and still have problems sleeping with bad dreams and PTSD.”  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 – 20051201	VARD - NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Back Pain…	5299-5242	10%	No VA Examination Proximate to Separation	
Chronic Bilateral Knee Pain	5099-5003	0%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:   NA	

ANALYSIS SUMMARY:  

Chronic Back Pain.  According to the service treatment record (STR) and MEB NARSUM, the CI experienced a sudden onset of back pain in early February 2005, and could not get out of bed.  Lumbar spine X-rays on 7 February 2005 were normal but repeat X-rays on 18 March showed mild disc space narrowing between L5 and S1.  Thoracic spine X-rays and an MRI on the same day were normal.  During the 20 October 2005 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported low back pain and spasms.  Physical examination recorded “full range of motion” (ROM), and that the CI was able to get his fingertips to his ankles with pain.  There was no tenderness, edema or erythema of the lumbar spine.    

The 28 October 2005 MEB NARSUM examination, noted complaints of back pain, rated at 8/10, which increased to 10/10 with prolonged standing and walking.  The examiner noted the CI was in no acute distress and that there was paraspinal muscle tenderness to light palpation bilaterally in the lumbar and lumbosacral areas.  Flexion was to 40 degrees (normal 90) and combined ROM was 175 degrees (normal 240).  Motor strength and reflexes were normal.  There was no VA examination proximate to separation in evidence.

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 thoracolumbar ROM limited by pain.   Panel members noted there was no injury or trauma to the back and that spine X-rays and an MRI revealed minimal pathology.  Multiple examiners recorded mild to moderate muscle spasms with a normal gait.  Although not reported as goniometric measurements, the MEB physical examination noted the CI was able to reach his fingertips to his ankles, exceeding 60 degrees of thoracolumbar flexion.  The panel agreed that the examination was more consistent with outpatient notes and more reflective of the anticipated severity based on the clinical pathology.  The significant NARSUM ROM limitations (8 days after the MEB examination) were consistent with a flare of back pain.  Therefore, the panel placed greater probative value on MEB examination.  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 Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded analogously to 5003 (arthritis, degenerative) and rated 0% with application of the US Army Physical Disability Agency pain policy.  This 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 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 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 adjudicated by the PEB.  

According to the STR and MEB NARSUM, the CI reported bilateral knee pain in January 2005 and giving way without any history of trauma or injury. On 1 February 2005, X-rays showed findings consistent with bilateral stress reaction of the tibia but normal knees. A bone scan on 1 March 2005 was suggestive of early stress fractures in both tibial plateaus, but MRIs of both knees on 24 March were normal.  A second bone scan on 25 August 2005 showed mild improvement in comparison to the bone scan in March.  During the MEB examination, the CI reported bilateral knee pain, but the examiner noted “normal” lower extremities.  The MEB NARSUM examination documented complaints of knee pain rated at 7/10, which increased to 9/10 with activity, and decreased to 5-6/10 with rest.  Physical examination showed left peripatellar tenderness, positive patellar grind, slight crepitus with motion, and slight effusion.  Palpation of the right knee showed some lateral capsular and lateral and patellar pole tenderness.  Knee flexion was to 97 degrees (normal 140) on the left and 90 degrees on the right, with pain; extension measurements were not provided.  

The panel directed attention to its rating recommendation based on the above evidence.  As noted above, the PEB bundled the right and left knees and applied a single 0% rating, coded 5099-5003.  In this case, both knees were profiled, implicated by the NARSUM and commander’s statement, and failed retention standards.  The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to either knee over the other.  Since undue speculation would be required to conclude that impairment from either knee would not have interfered with the performance of military duties, members determined that each knee was reasonably justified as separately unfitting.  The panel agreed there was no limitation of flexion or extension (5260, 5261) that supported a compensable rating, however, 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.  Additionally,  there was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258); history of surgery to remove a meniscus (5259); or 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).  After due deliberation, considering all the evidence, the panel recommends a disability rating of 10% for the right knee condition and 10% for the left knee condition, both coded 5003.

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 bilateral knee condition, the panel recommends that each joint be separately adjudicated as follows: an unfitting right knee condition coded 5003 and rated 10%, and an unfitting left knee condition, coded 5003 and rated 10%, both 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 Back Pain	5299-5242	10%	
Left Knee	5003	10%	
Right Knee	5003	10%	
COMBINED	30%	

XXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXX:

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