RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201225
BRANCH OF SERVICE:  Army	BOARD DATE:  20130404
SEPARATION DATE:  20020907

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (12B/Combat Engineer) medically separated for cervical and bilateral knee conditions.  He first complained of neck pain in 1994; which was exacerbated by a motor vehicle accident (MVA) in 1996; and, which significantly worsened during a 2001 deployment to Kosovo.  It was diagnosed as degenerative disc disease (DDD) (no surgical indications).  He developed bilateral knee pain (without specified injury or precipitant) in 1991, which worsened over time; and, was diagnosed as retropatellar pain syndrome (RPPS).  Neither condition responded adequately to various treatment modalities to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was consequently issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The neck and knee conditions, characterized as “chronic neck pain with evidence of spondylosis” and “chronic bilateral knee pain, retropatellar pain syndrome,” 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 – neck and bilateral knees” as a single unfitting condition, rated 10%, referencing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated with that disability rating.

CI CONTENTION:  The application states simply, “I was medically discharge [sic] with a 10% disability.”

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 cervical and knee conditions are addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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.

RATING COMPARISON:

Service PEB – Dated 20020607	VA (4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain – Neck and Bilateral Knees	5099-5003	10%	Cervical Degenerative Disc Disease 	5293	10%	20030113	
			RPPS, Bilateral Knees	5010	10%*	20030113	
No Additional MEB/PEB Entries	Other x4	10%	20030113	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20030122 (most proximate to date of separation [DOS]).
*VARD dated 20091023 rated knees separately at 10%, effective 20020908; based on exam dated 20090904 (7 years post - separation.

ANALYSIS SUMMARY:  The PEB combined the cervical and bilateral knee conditions under a single disability rating, coded analogously to 5003.  Although 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.  To that end, the evidence for the cervical and bilateral knee conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Cervical Spine Condition.  The first entry for neck pain in the service treatment record (STR) was in 1994, and described radiation to the right arm; with a similar complaint following push-ups in 1995.  The complaint was sporadic until exacerbated by a motor vehicle accident (MVA) in 1996, and the neck was first profiled in 1997.  The CI was followed by physical therapy (PT), and fared relatively well until the symptoms were aggravated by armor load during a 2001 deployment to Kosovo.  Imaging from March 2002 reported, “Mild spondylosis throughout the cervical spine with evidence of mild degenerative disk disease at the C4/5 [with right foraminal narrowing] and C5/6 levels.  No evidence of disk herniation.”  Multiple outpatient entries document grossly normal range-of-motion (ROM) and the only contrary entry (“limited all motions”) was in 2001 following deployment.  Although there was intermittent right radicular pain, multiple normal neurologic examinations are in evidence.  The narrative summary (NARSUM) recorded “neck pain at rest, baseline 4/10 which increases markedly with exercise or wearing Kevlar, lifting and during cold weather.”  The physical exam noted tenderness and “full [ROM] in extension, flexion, rotation” with pain at “full extension.”  Strength was 5/5, and all neurologic findings were normal.  At the VA Compensation and Pension (C&P) evaluation (4 months post-separation), the CI reported constant neck pain with all movement which he rated 9/10.  No interim injury or aggravation since separation was reported.  The physical exam documented the absence of spasm, made no note of tenderness; and, reported normal neurologic testing.  The VA examiner’s ROM measurements were flexion 20 degrees (normal 45 degrees), extension 20 degrees (normal 45 degrees), and left/right rotations of 45 degrees (normal 80 degrees).

Directing attention to its recommendations, the Board first considered if the cervical spine condition met the Board’s threshold for separate rating (as elaborated above).  It is noted that the condition was considered to fail retention standards, it was the basis for a U3 profile, it was specifically cited in the commander’s performance statement; and, it prohibited the use of personal protective equipment.  Members agreed, therefore, that the cervical condition was reasonably justified as separately unfitting and that it met VASRD §4.71a criteria for separate rating.  Accordingly, it should be afforded separate disability rating.
With regard to rating, it is noted that the 2002 VASRD coding and rating standards for the cervical spine (which must be applied to the Board’s recommendation IAW DoDI 6040.44) differ significantly from the current §4.71a general rating formula for the spine.  The only available 2002 coding options for this case are excerpted below for the reader’s convenience.
5290 Spine, limitation of motion of, cervical
Severe ...................................................................................................................................... 30	
Moderate ................................................................................................................................. 20	
Slight ........................................................................................................................................ 10
           5293 Intervertebral disc syndrome:
Pronounced; with persistent symptoms compatible with: sciatic neuropathy with 
   characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other 
   neurological findings appropriate to site of diseased disc, little intermittent relief ............ 60
Severe; recurring attacks, with intermittent relief .................................................................. 40
Moderate; recurring attacks .................................................................................................... 20
Mild .......................................................................................................................................... 10
Postoperative, cured ................................................................................................................. 0
The PEB’s 5003 (degenerative arthritis) coding is not applicable for the cervical spine as a separately rated condition.  The VA’s decision for its 10% rating under 5293 cited “mild symptoms associated with intervertebral disc syndrome.”  No rationale was provided for forgoing a rating under 5290, given the moderately compromised ROMs documented by the VA examiner.  The Board considered a 20% rating under 5290 based on said ROMs; but, members agreed that that this could not be supported because the NARSUM ROMs and the STR evidence convincingly demonstrate the lack of significant ROM impairment at separation.  The development of the significant ROM limitations and reported increase in severity over the interval between separation and the VA evaluation are not consistent with the stable clinical course for an extended period preceding separation; and the degree of ROM limitation is not explained by spasm or other physical findings.  It was concluded therefore that the maximum rating under 5290 which could be supported was 10%, justified by VASRD §4.59 (painful motion).  There was no documentation of ‘recurring attacks’ which would achieve a higher rating under 5293.  There was no documentation of an active radiculopathy at separation which would support additional rating under a peripheral nerve code.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separate disability rating of 10% for the cervical condition under code 5290 of the VASRD in effect.

Bilateral Knee Condition(s).  There are sporadic entries for bilateral knee pain (occasionally left only or right only) in the STR dating to 1991.  It was diagnosed early as bilateral RPPS, and first profiled (as bilateral) in 1997.  X-rays were normal.  The CI was treated with anti-inflammatories, activity restriction, and PT.  Gross ROM observations recorded in the STR were all normal; and, there was no documentation of painful motion or antalgic gait.  The NARSUM noted “chronic bilateral knee pain, which is aggravated by exercise and improved by rest.”  The physical exam noted a normal gait, a finding of crepitus and “no ligamentous laxity ... in any direction.”  The ROM evaluation noted bilateral flexions of 140 degrees (normal) and normal extension.  Painful motion was not specified.  At the 4 month post-separation C&P evaluation, the CI rated his pain 6 out of 10, “24 hours a day, 7 days a week ... exacerbated by strenuous activity, by lifting or doing a lot of walking.”  Detailed physical findings were normal, except for “There may be slight tenderness in the anterior knee with the patella going against the knee with motion.”  Gait was normal, and there were no signs of cartilage impingement or ligamental laxity.  The VA ROM measurements were bilateral flexion of 105 degrees (minimum compensable 45 degrees) and normal extension.

Directing attention to its recommendations, the Board first considered if the knee condition(s) met the Board’s threshold for separate rating (as elaborated above).  It is noted that the bilateral knee condition was considered to fail retention standards; it was the basis for a L3 profile; it was specifically cited in the commander’s performance statement; and, it logically interfered with at least the field requirements (per the commander) of the MOS.  Members agreed, therefore, that the bilateral knee condition was reasonably justified as separately unfitting and that it met VASRD §4.71a criteria for separate rating.  Accordingly, it should be afforded separate disability rating.

With regards to its rating recommendation, the Board first deliberated whether separate right and left ratings or a single bilateral rating (as per the post-separation VA rating decision) was in order.  A bilateral rating under code 5099-5024 (tenosynovitis) is analogously compatible with both the pathology and disability; and, since it defaults to 5003 rating criteria (without regard to radiographic findings), a 10% rating for two major joints is supported.  There is thus VASRD §4.71a latitude for a bilateral rating.  As noted above, there are no unilateral distinctions with regards to clinical features or fitness considerations.  It is speculative to conclude that the RPPS disability confined to a single knee would not have rendered the CI incapable of performing his MOS; but, it is also reasonable to surmise that it was the overall effect of both knees which rendered him unfit.  It is further noted that a §4.71a basis for individual rating is questionable based on evidence.  The probative value of the post-separation ROM limitation noted on the VA exam is subject to the same issues cited in the cervical discussion; and, the preponderant evidence supports normal ROM.  Achieving a minimal compensable rating via painful motion would be speculative at best from the evidence, and equivocal from the VA evidence.  Supporting VASRD §4.40 (functional loss) criteria to achieve a compensable rating is also quite speculative, since there is no functional evidence attributable to a single knee.  Members thus agreed that there were insufficient grounds for recommending separate right and left knee disability ratings in this case.  Considering the totality of the evidence and with deference to reasonable doubt, the Board recommends a separate disability rating of 10% for the bilateral knee condition under code 5099-5024.

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 discussed above, PEB reliance on the USAPDA pain policy for rating the cervical and knee conditions was operant in this case and they were adjudicated independently of that policy by the Board.  In the matter of the service-combined cervical/bilateral knee condition, the Board unanimously recommends that it be rated for two separate unfitting conditions as follows:  the cervical spine condition coded 5290 with a disability rating of 10%; and, a bilateral knee condition coded 5099-5024 with a disability rating of 10%; both IAW VASRD §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 his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Degenerative Disc Disease, Cervical Spine	5290	10%	
Patellofemoral Pain Syndrome, Bilateral Knees	5099-5024	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120711, 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 AR20130009486 (PD201201225)

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 20% 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