RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01331
BRANCH OF SERVICE:  Army	BOARD DATE:  20141008
SEPARATION DATE:  20020826

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (88N/Transportation Management) medically separated for herniated nucleus pulposus (HNP) and bilateral knee pain.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back and knee conditions, characterized as “herniated nucleus pulposus” and “bilateral retropatellar pain syndrome,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also forwarded one other condition (hearing defect right ear) for PEB adjudication.  The Informal PEB found the HNP unfitting at 10% and the bilateral knee pain unfitting at 10%.  The knee pain condition was rated with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The right ear condition was determined to be not unfitting.  The CI made no appeals at that time and was medically separated.

CI CONTENTION:  “While I was on active duty I suffered a parachute accident.  I was medically separated with 20% disability.  My injuries were very severe (herniated/ruptured disks, traumatic brain injury, knee, ankle, and hip injuries.  I now have a rating of 80% and my conditions have only gotten worse.  I respectively request a change in separation from medically separated to medically retired.”  [sic]

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 HNP and bilateral knee pain are addressed below.  The hearing defect of right ear is also addressed below.  No other conditions are within the defined purview of the Board.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20020730 | VA - (4 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Herniated Nucleus Pulposus | 5293 | 10% | Herniated Nucleus Pulposus | 5293 | 20% | 20020424
Chronic Bilateral Knee Pain | 5099-5003 | 10% | Patellofemoral Joint Syndrome, Right Knee | 5299-5259 | 10% | 20020424
| | | Patellofemoral Joint Syndrome, Left Knee | 5299-5257 | 0% | 20020424
Other x 1  (Not in Scope) | Other x 2
Combined:  20% | Combined:  30%
Derived from VA Rating Decision (VARD) dated 20020805 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed by the CI regarding the impairment with which his conditions continue to burden him, and the significant impact they have had on his quality of life.  It is noted for the record that the Board is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates.  The DES has neither the role nor the authority to compensate members for future severity or potential complications of conditions.  That role and authority is granted to the Department of Veterans Affairs (DVA).  The Board evaluates VA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation.  While other injuries or conditions may have been present, compensation can only be offered for those conditions that cut short a CI’s career, and then only to the degree of severity present at the time of separation.  The VA, however, is empowered to compensate for all service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

Herniated Nucleus Pulposus (HNP).  In September 1999, the CI injured his back during a parachute landing fall.  About 2 weeks later, he suffered another injury while playing football.  He was diagnosed with HNP.  He was seen by neurosurgery and was advised to have surgery on his back, but the CI declined.  He was treated with physical therapy, chiropractic manipulation, and medication.  However, the back pain persisted and an MEB was initiated.  In April 2002, the CI had a VA Compensation and Pension (C&P) exam.  He complained of low back pain, which radiated down the right leg to the foot.  He also reported numbness and tingling of the right foot.  His pain was worsened with prolonged sitting, bending at the waist, lifting, or twisting.  On physical examination (PE), he was in no acute distress.  Gait was slow, but there was no obvious dysfunction regarding standing or walking.  There was painful motion and tenderness in the lumbar region diffusely.  No evidence of muscle spasm or weakness was noted.  Both lower extremities had normal motor function.  Patellar jerks and ankle jerks were normal.  Lumbar range-of-motion (ROM) was measured and is summarized in the chart below.

The MEB PE was a month later, on 28 May 2002.  At that exam, he was in no apparent distress.  Muscle testing revealed slightly decreased motor strength in the right lower extremity.  Leg flexion and plantar flexion were 4/5 on the right, compared to 5/5 on the left.  Sensation testing was normal.  Lumbar ROM was not recorded.  The April 2002 C&P ROM evaluation which the Board weighed in arriving at its rating recommendation, is summarized in the chart below.

Lumbar ROM
(Degrees)

VA C&P ~4 mos. Pre-Sep
(20020424)

Flexion | 50
Extension | 25
Right Lateral Flexion | 30
Left Lateral Flexion | 30
Right Rotation | 20
Left Rotation | 20

The Board directs attention to its rating recommendation based on the above evidence.  The VA Schedule for Rating Disabilities (VASRD) coding and rating standards for the spine, which were in effect at the time of the CI’s separation, were modified on 23 September 2002, and then were changed again 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 service on 26 August 2002.

The Board reviewed the data from the back examinations noted above, and found certain inconsistencies.  On 24 April 2002, lumbar flexion was measured at 50 degrees.  However, the examiner stated that the CI was able to drive a car.  Sitting in a car requires lumbar flexion greater than 50 degrees.  Based on a thorough review of the evidence in the treatment record, the Board determined that, at the time of separation, the CI’s back condition was best described as “mild” or “slight.”  There was insufficient evidence to support classifying the condition as “moderate” or “severe.”  After due deliberation, the Board determined that a disability rating of 10% was warranted.  The Board tried to find a path to a higher rating, using other codes which could be applied to the back condition.  The other VASRD codes that were considered did not result in a higher rating, since the record did not show sufficient evidence of a disabling spine abnormality which would justify a higher rating.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the back pain condition, characterized as HNP.

Knee pain.  The CI has had a long history of right knee pain.  In November 1990, he was suspected of having a torn medial meniscus of the right knee.  Arthroscopy was done, and revealed that his menisci were intact.  Resection of plica was performed.  Following surgery, he continued to have problems with the right knee.  Then in September 1999, both knees were painful after a faulty parachute landing fall.  He was seen by orthopedics and was diagnosed with retropatellar pain syndrome (RPPS).  At the April 2002 C&P exam, the CI reported bilateral knee pain, but no instability or locking.  He said that the left knee was slightly worse than the right.  On PE, both knees were normal in appearance.  There was normal ROM, negative Drawer test, negative McMurray’s test, and absence of additional limitations.  There was no obvious dysfunction regarding standing or walking.  Both lower extremities had normal motor function. One month later, at the May 2002 MEB PE, both knees had full ROM.  There was no effusion or joint line tenderness.  Tests for ligamentous instability were all negative.  The patellar grind test was positive bilaterally (indicating possible retropatellar abnormality at the patello-femoral junction, which is a common finding with RPPS).

Once again, the Board carefully reviewed all evidentiary information available.  The Army PEB chose diagnostic code 5099-5003 (analogous to degenerative arthritis) for the knee pain.  The two knees were bundled together and treated as a single unfitting condition.  The Board evaluated whether or not it was appropriate for the two knees to be “bundled” together.  The Board must determine if the PEB’s approach of combining the knees under a single rating was reasonably justified in lieu of separate ratings.  The Board must apply separate ratings in its recommendations if compensable ratings for each knee are achieved IAW the VASRD.  If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each “unbundled” condition was separately unfitting.  After due deliberation, the Board agreed that the evidence does not support a conclusion that each of the knee pain problems, separately, would have rendered the CI unable to perform his required military duties.  Therefore, the Board does not recommend a separate disability rating for each of the knees.  The Board determined that it is appropriate for the right knee pain to be bundled with the left knee pain, and treated as a single unfitting condition.

The painful knee condition was essentially non-compensable based on the VASRD §4.71a diagnostic codes for loss of knee motion (5260 and 5261).  However, IAW VASRD §4.40 (functional loss), when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  A 10% rating is warranted when there is satisfactory evidence of functional loss and disability due to painful motion.  There was no path to a higher rating since there was no evidence of ligamentous instability, subluxation, or other significant joint abnormality.  After due deliberation, the Board determined that a disability rating of 10% was appropriate.  Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the chronic bilateral knee pain due to RPPS.
Other PEB Condition.  Hearing loss (right ear) was adjudicated by the PEB as not unfitting.  The Board’s main charge with respect to this condition is to assess the appropriateness of the PEB’s fitness adjudication.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  This hearing loss condition was reviewed by the action officer and considered by the Board.  The Board noted that this condition was not specified as failing retention standards.  There was no indication from the record that this condition significantly interfered with satisfactory duty performance.  The commander’s statement dated 1 March 2002, was focused on the back condition and did not mention hearing loss.  After due deliberation, and in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the hearing loss condition.  Therefore, no additional disability ratings are recommended.

Other Contended Conditions.  As noted above; traumatic brain injury, ankle injuries, and hip injuries were not within the Board’s scope of review.

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 CI’s conditions were adjudicated independently of that policy by the Board.  In the matter of the HNP condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the chronic bilateral knee pain condition and IAW VASRD §4.40 and §4.71a, the Board recommends no change in the PEB adjudication.  In the matter of the hearing defect of right ear, the Board unanimously recommends no change in the PEB fitness determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130910, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20150004179 (PD201301331)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl						     XXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA

PD-2013-01331