Author: JOHN J. D'ORAZIO
Last saved by: julie.raveau
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xx	 CASE:  PD1201636	
BRANCH OF SERVICE:  MARINE CORPS 	 BOARD DATE:  20130402
DATE OF PLACEMENT ON TDRL:  20000901
Date of Permanent SEPARATION:  20050701		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Duty Sgt/E-5 (0151 / Administrative Clerk) medically separated for herniated nucleus pulposus and chronic right knee pain.  His bone and joint symptoms began in April 1998 when a person fell 15 feet on top of him during a training accident.  Since that time, the CI had numerous problems with his knee and lower back.  The herniated nucleus pulposus and chronic right knee pain conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was placed on limited duty and referred for a Medical Evaluation Board (MEB).  The herniated nucleus pulposus and chronic right knee pain conditions, characterized as chronic right knee pain; right knee chondromalacia of patella and chronic low back pain (LBP), secondary to #2, status post(s/p) IDET treatment; 12-3 herniated nucleus pulposus were forwarded to the Physical Evaluation Board (PEB) IAW SECNAVINST 1850.4E.  No other conditions were submitted by the MEB.  The PEB adjudicated herniated nucleus pulposus and chronic right knee pain as unfitting, rated 20% and 10%, and placed the CI on the Temporary Disability Retired List (TDRL).  The remaining conditions: chronic LBP, lumbar degenerative disc disease (DDD), mechanical back pain exacerbation, and right knee chondromalacia of patella were determined to be not unfitting and determined to be related Category II conditions.  He continued on TDRL with interim reevaluations in 2002 and 2003, and then underwent a final evaluation after approximately 4 years on TDRL.  At that time, the PEB adjudicated the herniated nucleus pulposus and chronic right knee pain as permanently unfitting rated 20% and 0% respectively, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals, and was medically separated with a 20% combined disability rating.

CI CONTENTION:  “Initial rating of 30% TDRL was reduced to 20%. I believe this was a gross reduction as my medical conditions at the time were severe, substantial, and increasing from my initial board at the time of my finalization of my case in 2005.  I believe the PEB conditions were not evaluated properly.”  The CI further lists on his application all his conditions from the VA for which he was awarded compensation.

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 herniated nucleus pulposus and chronic right knee pain 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 Board for Correction of Naval Records. 

RATING COMPARISON:  

Final Service PEB - 20050330 | VA (2 Mos. Post Separation)* - Effective 20000901
On TDRL - 20000901 | Code | Rating | Condition | Code | Rating | Exam
Condition | | TDRL | Sep. | | | |
Herniated Nucleus Pulposus | 5295 | 20% | 20% | Residual Postoperative Injury, Lumbar Spine, With Lumbar Disk Disease | 5299-5295 | 10% | 20001004
Chronic Right Knee Pain | 5299-5003 | 10% | 0% | Residual Postoperative Chondromalacia, Right Knee | 5299-5259 | 10% | 20001004
Chronic Low Back Pain | Category II | Other x 1 (NSC) | 20001004
Lumbar Degenerative Disc Disease | Category II | |
Mechanical Back Pain Exacerbation | Category II | |
Right Knee Chondromalacia of Patella | Category II | |
No Additional MEB/PEB Entries. | |
Combined:  30% → 20% | Combined: 20%
*Reflects VA rating exam proximate to TDRL placement; no VA rating evidence proximate to permanent separation.

ANALYSIS SUMMARY:  The CI’s opinion that his condition worsened over the course of his TDRL period was considered in the Board’s deliberations.  The Board takes the position that subjective improvement or worsening during the period of TDRL should not influence its coding and rating recommendation at the time of permanent separation.  The Board’s relevant recommendations are assigned in assessment of the permanent separation and rating determination, and the TDRL rating assignment is not considered a benchmark.  It is recognized that the PEB sometimes applies an overly generous initial rating in order to meet the DoD requirement of 30% disability for placement on TDRL.  This is in the member’s best interest at the time and does not mean that a final lower rating is unfair, even if perceived as incongruent with subjective severity from one rating to the next.  Thus the sole basis for the Board’s recommendation is the optimal VASRD rating for disability at the time the CI is permanently separated.

Herniated Nucleus Pulposus.  Range-of-motion (ROM) in evidence is provided in the following table:

Thoracolumbar ROM
(Degrees)

MEB ~ 6 Mos. Pre-TDRL Placement

VA C&P ~ 1 Mo. Post-TDRL Placement

TDRL #2 ~ 20 Mos. Pre-Permanent Separation

Flexion (90 Normal) | “mid-shin” | 90 | 60
Extension (30) | - | 30 | 15
R Lat Flexion (30) | - | 30 | 30
L Lat Flexion (30) | - | 30 | 30
R Rotation (30) | - | 30 | -
L Rotation (30) | - | 30 | -
Combined (240) | - | 240 | -
Comment | Pain with motion, tenderness | Pain at extremes of ROM, tenderness | Pain with motion
§4.71a Rating | 20% | 10% | 20%

The CI underwent a thermal annuloplasty in February 2000 for an L2-3 herniated nucleus pulposus which resulted in improved back pain and full relief of his radicular symptoms.  At the spine clinic MEB exam in March 2000, 5 months before placement on TDRL, the CI reported back pain and right lower extremity weakness, and no bladder or bowel changes.  The examiner noted flexion to the mid-shin with slight pain, and no tenderness or spasm.  Bilateral lower extremity strength was 5 out of 5 (normal), except for right quadriceps strength of 4 out of 5.  Slight numbness was found in the L3 sensory distribution to the right thigh.  Knee and ankle reflexes, and gait, were normal.  At the pain management clinic MEB exam (March 2000), the CI rated his pain at 7 out of 10 on a 1-10 scale and worse with prolonged sitting, standing and activity.  At a second spine clinic exam (May 2000), the examiner found decreased lumbar ROM in all parameters with pain and tenderness of the para-lumbar muscles.  The straight leg test was negative bilaterally.  The lower extremity strength and sensory exams were normal.  At the VA Compensation and Pension (C&P) exam in October 2000, a month after placement on TDRL, the CI reported back pain with subjective stiffness and fatigability, and occasional pain and paresthesia in the right leg.  He was not using a brace or cane.  The examiner noted tenderness over the lumbar spine, no radicular signs, and a normal gait.  At the first TDRL exam (March 2002), the CI noted that he was involved in a motor vehicle accident (MVA) in December 2001, which aggravated his pain and led to L4-5 and L5-S1 discectomies in February 2002.  The CI reported constant 2-3 out of 10 LBP and he avoided lifting and running, although walking helped his pain and narcotic pain medication use had decreased.  The neurosurgeon noted some give-away on right quadriceps testing; the lower extremity strength, reflexes, and sensory exams were otherwise in the normal range.  The surgeon cited an MRI of the thoracolumbar spine in January 2002 (prior to the recent surgery) which showed multilevel DDD; disc bulging at T11-12 and L5-S1; and a right sided disc bulge at L4-5.  At the second TDRL exam (November 2003) 20 months prior to permanent separation, the CI described pain radiating to his legs.  The surgeon reported ROM (reflected in the table above) with pain and no paraspinal spasm.  Lower extremity strength was normal; knee and ankle reflexes were increased.  X-rays of the thoracolumbar spine reportedly showed mild post-operative decrease of lumbar disc height.  A letter from the CI’s civilian orthopedist to the PEB, dated 16 November 2004 (8 months prior to permanent separation), stated that episodes of significant pain caused 1-2 missed work days per month, and that a brace was sometimes worn.  Physical examination noted a healed lumbar surgical incision, lumbar tenderness and some spasm.  ROM was noted to be “significantly restricted.”  Muscle strength was 5/5 and deep tendon reflexes were normal.  At the final TDRL exam in December 2004, 7 months before permanent separation, the CI reported LBP with spasms, decreased ROM, subjective weakness in the legs, altered gait, and no bladder bowel changes.  Examination showed decreased sensation in the distribution of L4 thru S1.  The surgeon observed that the CI ambulated with a “slightly antalgic gait to the right.”  The exam was otherwise silent regarding lumbar spine ROM, tenderness or spasm.  X-rays of the lumbar spine were reportedly normal except for the L4-5 disc fusion.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB and VA applied the same analogous 5295 code (lumbosacral strain), but assigned different ratings for the condition at the time of placement on the TDRL.  The PEB’s 20% rating was reasonably conceded under the 5295 or 5292 code (limitation of lumbar motion), given the findings on the exams.  Board members agreed there was no route to a higher rating under any applicable spine codes.  However, the Board also agreed the C&P exam, performed closer to the time of TDRL placement and further removed from the thermal annuloplasty procedure than the service exams, held higher probative value than the service exams, and concluded that those VA exam findings supported the 10% rating assigned by the VA.  But, since the Board is prohibited from making recommendations that lower the PEB’s combined rating, it was decided that a rating less than the 20% assigned by the PEB could not be recommended.  The Board next considered the rating at the time of permanent separation.  The 2000 VASRD coding and rating standards for the spine, which were in effect at the time of placement on TDRL and were utilized in the preceding Board recommendation, were changed to the current §4.71a rating standards on 26 September 2003, prior to the CI’s permanent disability disposition.  The older ratings were based on a judgment as to whether the disability was mild, moderate or severe.  The current standards are grounded in ROM measurements.  The PEB elected to use the old spine standards for the permanent adjudication, but IAW DoDI 6040.44, this Board must consider the appropriate rating for the CI’s back condition at separation based on the VASRD standards in effect at the time of separation.  Although the VA exam most proximal to the time of placement on the TDRL supported a 10% rating, worsening of the lumbar condition occurred over the course of the TDRL.  While this decline appeared to be related to an intervening MVA, the Board concluded that there is no latitude to therefore reduce the probative value of subsequent examinations.  The Board noted that the VA declined to increase the spine rating in a 2002 decision in part because the MVA caused injury to a segment of the lumbar spine that was not previously service-connected.  Board members agreed however that such a conclusion requires speculation that disc disease had not already spread by natural progression and that physical examination can reliably distinguish back pain from adjacent or nearby lumbar segments.  In deliberating a recommendation, Board members considered that the most proximal ratable ROM data was 20 months prior to separation.  Lumbar flexion at that exam supported a 20% rating IAW the new §4.71a spine formula.  The examination findings reported by the orthopedist 8 months prior to separation noted “significantly restricted” but un-quantified ROM, and muscle spasm but no mention of secondary abnormal gait or spinal contour (findings which can also support a 20% rating).  It was also not evident from the final TDRL examination if the abnormal gait was due to lumbar muscle spasm; no other data upon which to base a rating was provided at this exam.  Board members concluded that in the absence of useful data more proximal to permanent separation, there is no justification for making a recommendation other than the 20% rating supported by the exam findings 20 months prior to permanent separation.  The Board also agreed that there was no evidence of incapacitating episodes that would provide a compensable rating under the formula for intervertebral disc syndrome; and that additional rating for radiculopathy was not justified because objective evidence of functional deficits due to radiculopathy was absent.  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 herniated nucleus pulposus condition, but recommends a 5243 code (Intervertebral disc syndrome) IAW the newer, general spine formula in effect at the time of separation.

Chronic Right Knee Pain.  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.

Right Knee ROM
(Degrees)

VA C&P ~ 1 Mo. Post-TDRL Placement

TDRL #2 ~ 20 Mos. Pre-Permanent Separation

TDRL #3 ~ 7 Mos. Pre-Permanent Separation

Flexion (140 Normal) | 140 | 135 | 140
Extension (0 Normal) | 0 | 0 | 0
Comment | +crepitus and tenderness | Painful motion, subjective instability, mild tenderness | Mild crepitus, slight antalgic gait
§4.71a Rating | 10%* | 10% | 10%* (PEB 0%)
	*Conceding painful motion (§4.59)

The CI underwent arthroscopic surgery in October 1998 for patellar chondromalacia.  At the MEB exam in February 2000, 6 months before placement on TDRL, the CI reported right knee pain.  The examiner noted “full ROM,” positive patellar grind and quadriceps inhibition, and no effusion or joint line tenderness.  The lachman and anterior/posterior drawer tests (anterior and posterior cruciate ligaments) and McMurray (meniscus) test were negative.  Varus-valgus stress (collateral ligaments) tests were stable.  The neurologic and vascular exam of the distal right lower extremity was normal.  X-rays of the knee were reportedly normal.  An orthopedic exam in May 2000 noted ROM 0-110 degrees, patellar tenderness, mild effusion, and stable ligament exam.  A follow-up exam in June 2000 noted normal ROM and no effusion, but patellar tenderness was present.  At the VA Compensation and Pension (C&P) exam in October 2000, a month after TDRL-entry, the CI reported knee pain, as well as subjective stiffness, give-way, swelling, and fatigability.  He reported problems with standing, walking, climbing, squatting, and crawling, although he was functioning on the job and managing normal daily activities.  He occasionally wore a brace and was not taking any medication.  The examiner noted tenderness and crepitus, but no effusion.  Ligament tests were normal.  He ambulated without difficulty and could squat.  At the first TDRL exam (March 2002), the CI reported subjective instability of both knees.  The orthopedic surgeon noted bilateral ROM of 0-125 degree and positive patellar grind, and no effusion or joint line tenderness; normal ligament tests; and negative straight leg raise.  Mild atrophy of the right medial thigh muscle was noted.  X-rays of the knees reportedly showed no abnormalities.  At the second TDRL exam (November 2003), the CI reported bilateral knee pain with activity and subjective weakness and laxity.  The orthopedic surgeon noted mild joint line tenderness and pain with patellofemoral stress.  ROM was 0-135 degrees.  Strength and ligament tests were normal.  X-rays of the knees reportedly showed degenerative joint disease (DJD) in the right knee.  The civilian orthopedist (8 months prior to permanent separation), stated that the CI continued to experience right knee pain for which he wore a brace.  Physical examination noted a positive patella apprehension sign and tenderness in the medial and lateral joint spaces.  Crepitus was present and ROM was “decreased.”  There was no effusion.  X-rays were reportedly normal.  At the final TDRL exam in December 2004, 7 months before separation, the CI reported daily knee pain without significant swelling, right greater than left; he reported some pain with squatting and climbing, and used knee braces for stability.  The orthopedic surgeon noted mild patellofemoral crepitus, no effusion, and no ligament instability.  The examiner observed that the CI “ambulates with his braces with a slightly antalgic gait to the right” but as previously stated, it is not clear if the gait disturbance was due to lumbar or knee pain.  X-rays of the knees reportedly showed bilateral patellofemoral osteoarthritis.  

The Board directs attention to its rating recommendation based on the above evidence.  At the time of entry on the TDRL, the PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis), while the VA assigned a 10% rating under an analogous 5259 code (removal of symptomatic semilunar cartilage).  The Board agreed that there was no route to a rating higher than the PEB’s 10% under any of the applicable knee codes.  The Board next considered the rating at the time of permanent separation.  Although the CI’s civilian orthopedist reported “decreased ROM” the final TDRL examiner documented normal goniometric ROM.  Board members debated if sufficient evidence was present to warrant a minimal rating under §4.59 (painful motion).  It was concluded this approach was supported by the use of a brace, and the presence of a limp, crepitus and patellar apprehension.  The Board agreed there was no evidence of knee instability, and thus additional rating was not justified under this pathway.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the chronic right knee pain condition.  

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the herniated nucleus pulposus condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB rating, but recommends using the 5243 code at the time of permanent separation, IAW VASRD §4.71a.  In the matter of the chronic right knee pain condition, the Board unanimously recommends no change in the PEB adjudication at the time of placement on TDRL, and a permanent rating after removal from the TDRL of 10%, coded 5299-5003 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

UNFITTING CONDITION | VASRD CODE | RATING
| | TDRL | PERMANENT
Herniated Nucleus Pulposus | 5295 | 20% |
Herniated Nucleus Pulposus | 5243 | | 20%
Chronic Right Knee Pain | 5299-5003 | 10% | 10%
COMBINED | 30% | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 201220915, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
	           xx
	           Acting Director
	           Physical Disability Board of Review

MEMORANDUM FOR DEPUTY COMMANDANT, MANPOWER & RESERVE AFFAIRS
		                COMMANDER, NAVY PERSONNEL COMMAND
	     	          		           	                          
Subj:  PHYSICAL DISABILITY BOARD OF REVIEW (PDBR) RECOMMENDATIONS          

Ref:   (a) DoDI 6040.44
          (b) PDBR ltr dtd 28 May 13 ICO  
          (c) PDBR ltr dtd 22 May 13 ICO  
          (d) PDBR ltr dtd 22 May 13 ICO  
          (e) PDBR ltr dtd 17 May 13 ICO  
          (f)  PDBR ltr dtd 10 May 13 ICO  
          (g) PDBR ltr dtd 17 May 13 ICO  
                                        
1.  Pursuant to reference (a), I approve the recommendations of the Physical Disability Board of Review set forth in references (b) through (g).
	
2.  The official records of the following individuals are to be corrected to reflect the stated disposition:

     a.  former USN:  Disability separation with a final disability rating of 20% (increased from 10%) effective 1 March 2003.

     b.  former USN:  Disability separation with a final disability rating of 20%  (increased from 10%) effective 15 September 2002.

     c.  former USMC:  Disability retirement with a final disability rating of 40% (increased from 20%) and placement on the Permanent Disability Retired List effective 14 January 2004. 

     d.  former USN:  Disability retirement with a final disability rating of 30% (increased from 20%) and placement on the Permanent Disability Retired List effective 15 November 2002.

     e.  former USMC: Disability retirement with a final disability rating of 30% (increased from 20%) and placement on the Permanent Disability Retired List effective 31 August 2005.  

     f.  former USMC:  Disability separation with a final disability rating of 20% (increased from 10%) effective 15 November 2001.  

3.  Please ensure all necessary actions are taken, included the recoupment of disability severance pay if warranted, to implement these decisions and that subject members are notified once those actions are completed.

						  xx
						  Assistant General Counsel
						    (Manpower & Reserve Affairs)

PD1201636