RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1201630	SEPARATION DATE:  20031106
BOARD DATE:  20130416

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (74B/Information Systems) medically separated for bilateral tibial/knee and lumbar spine conditions.  He experienced an onset of bilateral anterior tibial pain, bilateral knee pain and low back pain (LBP) during his first physical fitness test in basic training in 1996.  The knee pain was diagnosed as patellofemoral syndrome (PFS); the tibial pain as shin splints, and the back pain as degenerative disc disease (DDD).  In 1999, the CI was found fit for duty by the Physical Evaluation Board (PEB).  In 2003, a Military Occupational Specialty (MOS)/Medical Retention Board (MMRB) referred the CI back to the Disability Evaluation System (DES).  Despite profile restrictions and a further trial of conservative management, none of the conditions could be adequately rehabilitated to meet the physical requirements of his MOS or satisfy physical fitness standards.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “bilateral tibial pain without stress fracture”, “bilateral anterior knee pain” and “low back pain without radiculopathy” for PEB adjudication IAW AR 40-501.  No other conditions were submitted.  The PEB adjudicated the bilateral tibia/knee pain as a single unfitting condition, rated 10%, referencing the US Army Physical Disability Agency (USAPDA) pain policy; and adjudicated the low back condition as unfitting, rated 10%, citing criteria in the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The PEB also specifically referenced Army Regulation (AR) 635-40 and Department of Defense Instruction (DoDI) 1332.39 in its decision.  The CI made no appeals, and was medically separated with a 20% combined disability rating.

CI CONTENTION:  “Department of Veteran’s Affairs determined my initial percentage at 40%.  This was a total percentage based on DDD L5-S1, bilateral knee pain, shoulder bursitis in both shoulders and neck pain.  All listed injuries were determined to be service connected.”

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 ratings for the unfitting knee/tibial and lumbar conditions are addressed below.  The shoulder and neck conditions specified in the application were not identified by the MEB/PEB, and thus are not within the DoDI 6040.44 defined purview of the Board.  Those, and any other conditions or contention not requested in this application, remain eligible for future consideration by the respective Army Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20030812	VA (1 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Tibia and Anterior Knee Pain	5099-5003	10%	PFS, Left Knee 	5024-5260	10%	20031208	
			PFS, Right Knee 	5024-5260	10%	20031208	
Chronic Low Back Pain	5299-5295	10%	DDD, Lumbosacral Spine	5242	10%	20031208	
No Additional MEB/PEB Entries	Other x 3	10%	20031208	
Combined:  20%	Combined:  40%	
Derived from VA Rating Decision (VARD) dated 20040227 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions present at the time of separation.  The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the DES operates.  While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career and then only to the degree of severity present at the time of final disposition.  However the Department of Veterans Affairs, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the veteran’s disability rating should the degree of impairment vary over time.

Bilateral Tibia/Knee Pain Condition(s):  The CI experienced bilateral tibia pain and bilateral anterior knee pain concurrently during basic training in 1996.  There was no injury noted.  He was treated with physical therapy (PT) and anti-inflammatories, and carried on temporary profiles.  An October 1996 bone scan was consistent with mild bilateral shin splints (periostitis without cortical stress fractures), and repeat scanning (7 months later) showed worsening periostitis (still without cortical fractures).  The CI continued with aggressive PT and further trial of conservative management for another year without success.  Review of the service treatment record (STR) revealed that the CI’s bilateral tibial and knee pain was profiled and more problematic during the period between 1996 and 1997.  After 1997, the CI had one visit for bilateral knee pain (March 1999) after a 2½ mile walk.  He was referred to the MMRB in 1998, and found fit by a PEB in June 1999 (see summary).  Another MMRB was convened in October 2001 which retained the CI in his current MOS, finding that “your permanent medical condition does not impede the satisfactory performance of your MOS in a worldwide field environment.”  The CI wrote a letter rebutting the findings of that MMRB and requested his case be referred to the DES.  For the subsequent 2+ year period leading up to separation, there was no STR evidence of a medical visit for management of the CI’s bilateral tibia/knee pain.

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in this chart:

Knee ROM	MEB/Ortho 4 Mos. Pre-Sep	VA C&P 1 Mo. Post-Sep	
	Left	Right	Left	Right	
Flexion (140° Normal)	130°	130°	130°	130°	
Extension (0° Normal)	0°	0°	0°	0°	
Exam	Neg varus/valgus instability, Lachmans and pivot shift; Bilateral tibias are mildly tender to palpation; No medial/lateral joint line tenderness; Pos. bilateral patellar grinds that reproduce symptoms	Pos. tenderness to anterior aspect of knees with no obvious swelling or effusion present; Neg. varus/valgus, anterior and posterior cruciate ligament instability; Pos. pain with patellar grind bilaterally; Normal strength and reflexes bilaterally	

The narrative summary (NARSUM) prepared 4 months prior to separation noted that the pain in his shins and knees was rated 2/10, increasing to 5/10 with activity.  Pertinent physical exam findings are summarized in the chart above.  The orthopedic surgeon opined that, “when [the CI] is able to control his own activities, these symptoms should abate and his prognosis for a full recovery is excellent.”  At the VA Compensation and Pension (C&P) evaluation (a month post-separation), the CI reported that he had “intermittent pain that occurred about every two to three months.”  His pain would increase to a 6/10 and last for one to two days.  From a functional standpoint, he had increased pain with kneeling/squatting and was unable to run.  Pertinent physical exam findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB combined the bilateral knee and tibial 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.  All members agreed that the tibial periostitis and the knee PFS conditions were associated with the same disability and fitness implications.  An attempt to provide separate tibial and PFS ratings would, in fact, be confounded by VASRD §4.14 (avoidance of pyramiding); and, amendable to separate or bilateral ratings IAW VASRD §4.20 (analogous rating) permitting same when “the anatomical localization and symptomatology are closely analogous.”  Therefore, the only relevant choice before the Board was whether the tibial/knee rating should be confined to a single bilateral rating as conferred by the PEB; or, separate right and left ratings as conferred by the VA (although the VA rated only the knees, not the tibial diagnosis).

As noted above, there are no unilateral distinctions with regards to clinical features or fitness considerations.  Although it is somewhat speculative to conclude that the tibial/knee disability confined to a single knee would not have rendered the CI incapable of performing his MOS, it is 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, given the lack of compensable ROM limitation or clear documentation of the presence of painful motion.  Members agreed that there was a paucity of evidence in support of a conclusion that each extremity was separately unfitting at the time of separation.  The commander’s statement did not specify any condition as the cause of the duty limitations; and, there was a protracted period leading up to separation during which no clinical acuity for the lower extremity conditions was manifest.  The tibial and knee diagnoses were most compatible with VASRD codes 5022 (periostitis) and 5024 (tenosynovitis), both of which default to rating criteria of 5003 (degenerative arthritis) as applied by the PEB.  With the lack of compensable ROM limitation or incapacitating episodes, this yields a bilateral rating of 10% for 2 or more major joints.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the bilateral tibia/knee pain condition.

Lumbar Spine Condition.  The CI complained of LBP that began shortly after he entered active duty in 1996, without a specific injury.  He noted occasional bi-radicular pain, but had no motor symptoms or objective neurological findings.  He was followed in PT and chiropractic, issued temporary profiles, and treated conservatively.  Imaging in June 1999 revealed DDD at L5/S1 and degenerative facet changes at L4 to S1, without evidence of disc herniation or neural encroachment.  Surgery was not recommended, and the CI was furthermore not considered a candidate for epidural steroid injections (ESI) due to the lack radiculopathy or imaging evidence of peripheral nerve impingement.  The lumbar condition was included in the 1999 PEB proceedings which returned him to duty, and it was more clinically active than the tibial/knee condition during the interval prior to separation.

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Thoracolumbar ROM	MEB 4 Mos. Pre-Sep	VA C&P 1 Mo. Post-Sep	
Flexion (90° Normal)	18” from floor (roughly 70⁰)	85°	
Ext (0-30°)	20°	25°	
Combined (240°)	N/A	210°	
Comment	Non-tender to palpation; Mild paraspinal tenderness; Negative Trendelenburg; Non-antalgic gait. Sensation intact; No increased symptoms with axial load; Negative straight leg raise; Normal Deep Tendon Reflexes & Strength	Pos. Tenderness lower spine; Neg. straight Leg Raise; Normal Deep Tendon Reflexes and Strength	
§4.71a Rating	10%*	10%	
* Painful motion IAW VASRD 4.59

The NARSUM prepared 4 months prior to separation noted that his back pain was 8/10 with exacerbations to 10/10 with activity.  Pertinent physical exam findings are detailed in the chart above.  At post-separation C&P exam a month later, the CI described his pain as a constant dull ache of 5/10 with no radicular symptoms.  He reported flare ups at least once every other week which increased the pain to a 10 and lasted for approximately 10 minutes, although he was no longer using anti-inflammatory medication.  From a functional standpoint, he reported occupational problems with heavy lifting.  Pertinent physical exam findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence; noting that the CI was separated after a significant change in VASRD codes and criteria for the spine, compared to those applied by the PEB.  IAW DoDI 6040.44, the Board’s recommendation must be premised on the VASRD in effect; although, the same evidence of course remains probative to the Board’s recommendation under the applicable VASRD criteria.  The PEB’s 10% rating for “characteristic pain on motion” under the older code 5295 (lumbosacral strain) was consistent with the VASRD applied, and a higher rating was not supported by the evidence.  The VA’s 10% rating under the current §4.71a formula (as also applicable to the Board’s recommendation) is consistent with the ROM evidence from the C&P examination.  The ROM evidence also remains within the 10% parameters of the current formula.  There was no evidence of ratable peripheral nerve impairment or documentation of incapacitating episodes which would provide for additional or higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB rating for the lumbar spine condition; but, recommends rating under code 5242 (degenerative arthritis of the spine) IAW the VASRD in effect at separation.

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, DoDI 1332.39, and AR 40-501 for rating the unfitting conditions was operant in this case; and, they were adjudicated independently of those directives by the Board.  In the matter of the bilateral tibial/knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the lumbar spine condition, the Board unanimously recommends no change in the PEB rating of 10%; but stipulates a change of code to 5242 to comply with VASRD §4.71a in effect at separation.  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	
Chronic Bilateral Tibia and Anterior Knee Pain	5099-5003	10%	
Degenerative Disc Disease, Lumbar Spine	5242	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120831, 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 AR20130010334 (PD201201630)

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 description without modification of the combined rating or recharachterization 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