RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201040
BRANCH OF SERVICE:  Army	BOARD DATE:  20130507
SEPARATION DATE:  20030505

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (98H/Communications Locator/Interceptor) medically separated for chronic pain in her knees and lower back.  The CI experienced bilateral knee pain and low back pain (LBP) of insidious origin.  She was treated with physical therapy and non-steroidal anti-inflammatory medication.  Eventually, the CI’s condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The bilateral knee and LBP, characterized as “bilateral anterior knee pain slight/intermittent consistent with patellofemoral pain” and “chronic low back pain slight/intermittent uncomplicated and non-radicular” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “chronic pain, bilateral knees and low back” as unfitting, rated 0% referencing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated with a 0% disability rating.

CI CONTENTION:  “Polyarthritis bilateral knees.  Arthralgia chronic Knee pain.  Rating should be higher.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e. (2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting bilateral knee condition is addressed below.  Although not specifically contended, the rating for the low back condition is addressed below as it is an included unfitting condition along with the bilateral knee condition by the PEB.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the respective Service Board for Correction of Military Records.  The Board acknowledges the CI’s contention regarding the significant impairment with which her service-connected condition continues to burden her; but, must emphasize that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

RATING COMPARISON:  

Service IPEB – Dated 20030327	VA - (~7 yrs. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Bilateral Knees and Low Back	5099-5003	0%	Bilateral Knee Condition	5260	NSC	20100814	
			Back Condition	5299-5237	NSC	STR	
No Additional MEB/PEB Entries	Other x 7	STR	
Combined:  0%	Combined:  NSC	
Derived from VA Rating Decision (VARD) dated 200100715 (most proximate to date of separation [DOS]).   
NOTE:  CI underwent Comp and Pension exam on 20100814 for joints only (not including back).  VARD 20100824 (6 weeks post original VARD) determined no change in NSC status of bilateral knee and back condition.  VARD 20121026 continued denial of service connection for bilateral knee and back conditions (although both conditions annotated at 0% in the rating decision).  In addition, VARD 20120824 granted a 10% disability for depression (9434), while designating this condition NSC, with a combined evaluation for pension of 10%.

ANALYSIS SUMMARY:  The Board must determine if the PEB’s approach of combining the conditions under a single rating was reasonably justified in lieu of separate ratings.  The Army PEB combined the CI’s pain problems into a single unfitting condition, characterized as: “Chronic pain, bilateral knees and low back.”  The condition was coded 5099-5003 and rated at 0%.  Although the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each ‘unbundled’ condition can be reasonably justified as separately unfitting in order to remain eligible for service rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  After due deliberation, the Board agreed that the evidence does not support a conclusion that either the right knee problem, left knee problem, or LBP problem, separately, would have rendered the CI unable to perform her required military duties.  Accordingly, the Board does not recommend separate disability ratings for the knees and the lower back.  It is reasonably justified for all her painful problems to be combined and treated as a single unfitting condition.

Chronic pain, bilateral knees and lower back.  In 2001, the CI began having pain in both knees.  It was insidious in onset and worsened with increased activity, prolonged standing or prolonged sitting.  The pain was also aggravated by changes in the weather.  The CI was treated with physical therapy (PT) and medications, but her knee pain persisted and an MEB was initiated.  The MEB physical examination (PE) of the knees was in January 2003.  There was minimal patellofemoral crepitus bilaterally, but no effusion or joint line tenderness.  Patellar apprehension, anterior drawer, posterior drawer, Lachman’s, McMurray’s, varus stress test, and valgus stress test were all negative.  Muscle strength and deep tendon reflexes (DTRs) were normal in both legs.  Range-of-motion (ROM) for both knees was “full.”  At the VA Compensation and Pension (C&P) exam, 7 years after separation (August 2010), the CI reported bilateral knee pain that was made worse with standing, bending, cold weather, or rain.  PE revealed no atrophy of quadriceps muscle, and knee flexion to 140 degrees without crepitus.  The examiner did three repetitions through a full ROM without any increase of pain.  There were stable ligaments, negative McMurray’s, negative Lachman’s, and negative drawer tests (anterior and posterior).  X-rays of both knees were normal.

The CI’s problem with LBP began in 2002.  At the January 2003 MEB evaluation, PE of the back revealed normal paravertebral musculature and a normal lordotic curve.  The CI easily bent forward and touched her hands to the floor.   She had normal side bending.  Straight leg raise (SLR) was negative both standing and seated.  The CI easily did heel-walk and toe-walk.  The remainder of the PE was normal.  The VASRD coding and rating standards for the spine which were in effect at the time of separation were changed to the current standards in September 2003.  The older standards were based on the rater’s opinion regarding degree of severity, whereas current standards specify certain rating thresholds, with measured degrees of ROM impairment.  IAW DoDI 6040.44, the Board must use the VASRD coding and rating standards which were in effect at the time of the CI’s separation from military service.

The Board carefully reviewed all of the evidentiary information available, and directs attention to its rating recommendation.  After consideration of the examinations noted above, the Board determined that the CI’s painful condition was essentially non-compensable based solely on the VASRD §4.71a codes for loss of knee motion (5260 & 5261), and lumbar spine disability (5292 & 5295).  However; IAW VASRD §4.40, §4.45, and §4.59, a 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of the musculoskeletal system.  The Board tried to find a path to a rating higher than 10%, using other codes which could be applied separately to the pain conditions.  The other VASRD codes that were considered did not result in a higher rating, since the record did not show evidence of a significantly disabling musculoskeletal abnormality which would justify a rating higher than 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends a separation disability rating of 10% for the chronic pain in both knees and the lower back.  This recommendation is IAW VASRD §4.71a application combined ratings of two or more joints under code 5003.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  As noted above, PEB reliance on the USAPDA pain policy was operant in this case and the condition was adjudicated independently of that policy/instruction by the Board.  In the matter of the chronic pain in both knees and lower back, the Board unanimously recommends a separation disability rating of 10%, IAW VASRD §4.40, §4.45, §4.59, and §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic pain, bilateral knees and lower back	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120615, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB),

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for AR20130011450 (PD201201040)

1.  I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum.   

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA