RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01584
BRANCH OF SERVICE:  Army	BOARD DATE:  20141202
SEPARATION DATE:  20041109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SGT/E-5 (63B20/Light Weight Vehicle Mechanic) medically separated for left knee pain, back pain, and neck pain.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent U3/L3 profile and referred for a Medical Evaluation Board (MEB).  Four medically unacceptable conditions, characterized as “left knee degenerative cartilaginous changes,” “low back pain most consistent with myofascial pain syndrome,” “tarsal tunnel syndrome,” and “cervical spine pain and kyphosis secondary to myofascial pain syndrome and degenerative changes,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (right shoulder pain, gastroesophageal reflux disease and hearing loss) as medically acceptable for PEB adjudication.  The Informal PEB (IPEB) adjudicated his left knee condition as unfitting, rated at 0%.   The CI’s neck and back conditions were adjudicated as unfitting however, were determined to be existed prior to service (EPTS) conditions, therefore were not compensable.  The remaining conditions were deemed to be not unfitting.  The CI non-concur with the IPEB’s findings, hence, requested and was scheduled for a Formal PEB (FPEB).  However, the CI later withdrawn his request for a FPEB, recanted his non-concurrence of the IPEB findings, made no further appeals and medically separated. 

CI CONTENTION:  “Chondromalacia left knee, arthritis of the cervical spine associated with left knee, and lumbar spine arthritis associated with the left knee are rated from 11/10/2004.”

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 and EPTS findings for the unfitting knee, back and neck 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 Military Records.

RATING COMPARISON:

Service IPEB – Dated 20040826	VA - (~8 Months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Pain with Degenerative Joint Disease	5099-5003	0%	Chondromalacia, Left Knee	5099-5014	10%	20050705	
Neck and Back Pain with Kyphosis and Myofascial Pain and Degenerative Changes	5237	---%	Lumbosacral Spine Associated with Left Knee pain	5237	10%	20050705	
			Cervical Spine Associated with Left Knee Pain	5237	10%	20050705	
Other x 4 (Not in Scope)	Other x 1 	
Rating:  0%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20051020 (most proximate to date of separation)

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.  Additionally, the Board acknowledges the CI’s contention for ratings of his neck and back conditions which was determined to be not compensable by the PEB.  Disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any contested condition was most likely incompatible with military service, a disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

Left Knee Pain with Degenerative Joint Disease.  The evidence supports that the CI suffered an injury to his left knee while on duty in in November 1997.  He was evaluated, diagnosed with a left knee medial collateral ligament sprain and treated with a brace.  He continued to experience left knee pain and a magnetic resonance imaging (MRI) scan performed in February 1998 revealed mild degeneration of a portion of the medial and lateral meniscus of the left knee.  He underwent an arthroscopic procedure in April 1998.  However, no documentation of that procedure was present in the service treatment records for Board review; only statements that his knee pain did not improve.  He was treated by a civilian physical therapist, without positive result of pain management.  Two subsequent MRI exams confirmed the findings of the first MRI scan.  The narrative summary (NARSUM) prepared 4 months prior to separation noted the CI had a 4-5/10 constant burning, deep pain in the left knee that could increase to 8-9/10 with certain activities.  He stated that he fell several times because his knee buckled but that had not occurred in several months.  The pertinent physical exam findings are summarized in the chart below.  

At the VA Compensation and Pension (C&P) exam performed 8 months after separation, the CI reported a history essentially the same as that summarized above.  At that time, he had established a lawn care business; however, his son preformed all heavy lifting tasks and the CI rode the lawn mower.  He denied that the knee had ever locked up on him, but he did report instability of unknown frequency.  The physical exam findings are summarized below:  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 the chart below.

Left Knee ROM (Degrees)	NARSUM ~4 Mos. Pre-Sep	VA C&P ~8 Mo. Post-Sep	
Flexion (140 Normal)	“Full ROM”	120	
Extension (0 Normal)	“Full ROM”	0	
Comment	Pos. painful motion & tenderness to palpation; No effusion; Pos. crepitus; No instability	Pos. painful motion & tenderness to palpation; No Deluca criteria or effusion; No instability	
§4.71a Rating	10%* (PEB 0%)	10%* (VA 10%)	
* IAW VASRD §4.59, Painful motion

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the left knee pain by application of the analogous VASRD code 5099-5003, degenerative arthritis, and rated it 0% citing “arthritis one major joint.”  The VA applied 5099-5014, osteomalacia (rated under 5003), and rated it 10%.  The Board reviewed the document that established the left knee injury as having occurred in the line of duty.  Both the NARSUM and C&P exams document knee ROMs measurements that are non-compensable IAW VASRD 4.71a.  Additionally, there was no evidence on either exam or the service treatment records that would allow application of any knee specific VASRD code for a rating recommendation.  However, both exams did document the presence of pain limited motion that, IAW VASRD §4.59, is compensable at the 10% evaluation level.  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 left knee pain condition.
Back and Neck Pain and Kyphosis Secondary to Myofascial Pain Syndrome and Degenerative Changes.  The evidence supports that the CI’s back and neck conditions did not incurred while on active duty status.  This was adequately documented in the C&P exam by the following statement:

“The veteran states that at the time of the left knee injury, he sustained aggravation to his back, neck, and shoulder which were preexisting conditions.”

Additionally, the NARSUM examiner made the following statement:

“SGT L-- states that he first recalls having back trouble after a civilian work-related injury in 1992.  He was pulling a box of crushed cans out of the back of a truck (he worked for a recycling company.)  He suddenly had pain shoot from his neck into his right shoulder and down to his right buttock area.  He was on workman's compensation for about 3 months and then tried to return to work.  He was unable to do so for very long, primarily because of his right shoulder and neck pain.”

The CI contends that both his preexisting back and neck pain were exacerbated by his left knee injury.  A causality linkage of the back and neck conditions with the unfitting left knee condition, even if conceded, is not a basis in itself for disability rating.  Concurrent conditions of this nature must in and of themselves be separately unfitting to merit additional rating.  While the back and neck conditions were identified on the profile completed at entry into the disability evaluation, there is no other evidence that they caused any duty limitation.  Additionally, the commander’s statement contained the following passage:

“… has not performed a scheduled drill in over five years with the PAARNG or any other Military Organization.”

The Board’s main charge with respect to these conditions is an assessment of the fairness of the PEB’s adjudication.  The Board’s threshold for countering the PEB’s adjudication is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, and requires a preponderance of evidence.  An established principle for fitness determinations is that they are performance-based; and, the Board is confronted in this case with the lack of any evidence that the limitations imposed by the back and neck conditions prohibited the performance of the duties required of his MOS.  Based on the documents present for review, Board members agree that the back and knee conditions were EPTS with no citable evidence that there was any increased disability or permanent aggravation.  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’s adjudication for the back and neck pain and kyphosis secondary to myofascial pain syndrome and degenerative changes conditions and so no additional disability ratings are recommended.

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 left knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5003 IAW VASRD §4.71a.  In the matter of the neck and back pain with kyphosis and myofascial-pain and degenerative changes conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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	
Left Knee Pain	5299-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130924, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150007431 (PD201301584)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA