RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	 CASE:  PD-2013-01898	
BRANCH OF SERVICE:  Army	 BOARD DATE:  20140729
SEPARATION DATE:  20041109

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (74C20/Telecommunications Operator) medically separated for chronic low back pain (LBP) and chronic right 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 MEB characterized the back condition as “chronic LBP with 4/5 Waddell signs and no radicular symptoms” and the right knee pain as “chronic right knee pain following trauma…”  Both conditions were deemed medically unacceptable by the MEB and were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions as “medically acceptable” for PEB adjudication.  The PEB adjudicated “chronic LBP…no radicular symptoms” and “chronic right knee pain” as unfitting, rated 0% and 0% respectively.  The remaining MEB referred conditions were determined to be “medically acceptable.”  The CI made no appeals and was medically separated.

CI CONTENTION:  “I am concerned with the army rating of 0% versus the overall VA rating of 60% for the same disqualifying items.  Primarily, lower back pain was the condition that disqualified me for duty.  This pain continues to affect my daily life today.  I have missed work on numerous occasions due to this condition, have been prescribed a myriad of medications and have participated in physical therapy; none of which have provided me with a proper quality of life.  I missed the opportunity to continue my military career, was unable to participate in many functions with my children, and have had difficulty in performing "normal" household duties.  Standing or walking for long periods of time renders a great amount of discomfort that is only relieved by rest and medication.  Unfortunately, I am unable to take the medication that provides the greatest relief while still maintaining the ability to operate a motor vehicle or to be effective in my work environment.  This causes me to forego medication often in order to maintain employment.  I respectfully request this re-evaluation in the hopes of obtaining the proper recognition of medical retirement due to the fact that the disqualifying
aspects of my back were caused and aggravated while serving on active duty, prevented me from completing my military career, and continue to plague me to this day.”

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 chronic back and right knee pain are addressed below; 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 20041004	VA - (4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…no Radicular Symptoms	5299-5237	0%	Degenerative Arthritis, Lumbar Spine	5242	40%	20050307	
Chronic Right Knee Pain	5299-5257	0%	Residuals, Right Tibial Plateau Fracture s/p ORIF	5299-5262	20%	20050307	
	Not Unfitting	No VA Entry	
Other x 3 (Not in Scope)	Other x 6	20050307	
Combined:  0%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20050513 (most proximate to date of separation).

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations, and DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The Board acknowledges that the original VA Compensation and Pension (C&P) examination dated 7 March 2005 was referenced, but not available in the evidence before it and could not be located after the appropriate inquiries.  Further attempts at obtaining the relevant documentation would likely be futile and introduce additional delay in processing this case.  The missing evidence will be referenced below in relevant context and it is not suspected that the missing evidence would significantly alter the Board’s recommendations.
 
Chronic Low Back Pain.  The CI first reported LBP in May 1996, without discrete traumatic injury and persisted throughout the balance of his service career.  Initial X-rays of the lumbar spine were normal.  In January 2000, he was evaluated in the emergency room for acute back pain and a history of “momentary” numbness into both lower extremities after “falling and twisting lower back.”  The record also noted that the described radicular symptom was “now resolved.”  There was no consistent radiculopathy present.  A magnetic resonance image (MRI) conducted on 18 November 2003, revealed multi-level facet arthropathy (degenerative arthritis) of the lumbosacral spine.  He was not a surgical candidate and was referred to pain management.  Multiple conservative treatment modalities were pursued to include pharmacology and chiropractic care resulting in either minimal or temporary pain relief.  There were no periods of incapacitation.  At the MEB narrative summary (NARSUM) examination performed in May 2004, (5 months prior to separation), the CI reported the inability to perform prolonged walking, standing, or sitting.  “Even sitting to perform [his] duty causes too much pain.”  Additionally, he reported the inability to carry a ruck sack or to lift over 20 pounds.  The physical examination revealed a “stiff” gait and peri-lumbar tenderness.  Sensory, motor, and strength findings were normal.  There was no comment in regards to the presence of spasms and ROM revealed slight incremental decrease in extension and right rotation.  The thoracolumbar flexion was 90 degrees (normal 90 degrees) and combined range-of-motion (ROM) was 220 degrees (normal 240 degrees).  There was no comment on the presence of painful motion.  The VARD associated with the missing C&P examination indicated a 40% disability impairment rating citing decreased forward flexion.  The VA’s combined ROM was 143 degrees.

The Board directs attention to its rating recommendation based on the above evidence.  Although the PEB and VA titled the unfitting back condition slightly differently, they both utilized (in various combinations) similar codes of 5237 (lumbosacral strain) and 5242 (degenerative arthritis) respectively; citing normal X-rays by the PEB and limited ROM by the VA.  The Board acknowledged that the 40% rating by the VA appeared to be in error in that it was based off thoracolumbar flexion of 20 degrees (the degree initiating painful motion) rather than the true measurement of 42 degrees, which is VASRD compensable at 20%.  It is obvious that there is a clear disparity in the combined ROM between the NARSUM and VA examinations, with significant implications regarding the Board's rating recommendation.  The Board carefully deliberated its probative value assignment to these different evaluations and reviewed the service treatment records for corroborating evidence in the 12-month period prior to separation.  Absent the original C&P document and having to resort to transcribed medical notes in the VARD, Board members assigned proportionately more probative value to the actual NARSUM (physician authored) examination document as a basis for the Board’s rating recommendations.  Board members agreed that the MEB’s compensable ROM supported a 10% rating; and members also agreed that the presence of lumbar tenderness found on the MEB examination supported the General Rating Formula for Diseases and Injuries of the Spine at 10% “... localized tenderness not resulting in abnormal gait or abnormal spinal contour.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10%, coded 5242 for the low back condition.

Chronic Right Knee Pain.  The CI underwent a surgical re-setting with screw and plate insertion for a right tibia plateau (multi-fracture) sustained from a motorcycle accident in May 2002.  Post-operatively, his recovery went very well with progressive bone healing and full ROM to the right knee within 6 months.  However, in June 2003, he began to develop “mild discomfort” about his right knee with prolonged walking which was initially thought to be caused by displaced surgical hardware.  Additional radiologic tests revealed normal bone growth without degenerative changes.  Orthopedics determined the additional discomfort was from “soft tissue irritation” secondary to the surgically placed hardware.  At the MEB NARSUM, the CI reported “…mild discomfort [to right knee] that persists with activities, prolonged standing or sitting.”  The physical exam revealed anterior knee pain with a ROM from 0-120 degrees (normal 0-140).  There was no laxity or instability present.  The VARD associated with the missing C&P examination indicated a 20% disability impairment rating for the right knee citing decreased and painful ROM.   

The Board directs attention to its rating recommendation based on the above evidence.  Both the PEB and VA utilized analogous coding options citing different primary identifiers.  The PEB and VA coded 5257 (knee, impairment) at 0% and 5262 (tibia/fibula impairment) at 20% respectively.  Board members agreed that the nature of the injury and the persistent functional limitations in evidence (ROM 0-120) were difficult to reconcile with a 0% rating and it was argued that VASRD §4.40 (functional loss) was supported to achieve the minimum compensable rating of 10% analogously coded under 5260 (leg; limited flexion).  Additionally, members extensively considered other rating options under the knee and leg codes to include 5257 (knee impairment) and 5262 (tibia/fibula); however, absent instability or evidence of mal-union, neither code is sufficiently supported.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10%, coded 5299-5260 for the right knee 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 low back condition, the Board unanimously recommends a disability rating of 10%, coded 5242 IAW VASRD §4.71a.  In the matter of the right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5260 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	
Low Back Pain 	5242	10%	
Right Knee Pain	5299-5260	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130930, 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, AR20150002634 (PD201301898)

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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA