RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02101
BRANCH OF SERVICE:  AIR FORCE	BOARD DATE:  20150305
SEPARATION DATE:  20040322

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Aerospace Ground Equipment Craftsman) medically separated for bilateral knee pain and low back pain (LBP) conditions.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty or satisfy physical fitness standards.  He was issued a temporary L4 profile and referred for a Medical Evaluation Board (MEB).  The Informal PEB (IPEB) adjudicated “bilateral knee pain” and “chronic low back pain,” as unfitting, rated 10% and 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The IPEB addressed an obesity condition and adjudicated it as not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “As advised by Veteran Affairs letter dated 09/06/2013, signed by A-- A. H--, Under Secretary for Benefits under The Wounded Warrior signed into law in 01/28.2008 I am afforded the opportunity for a review to ensure I was evaluated appropriately and rated accordingly.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20031204 | VA - (11 Mos. Post-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Bilateral Knee Pain | 5003 | 10% | DJD, Right Knee | 5260 | 10% | 20040505
| | | DJD, Left Knee | 5260 | 10% | 20040505
Chronic Low Back Pain | 5237 | 10% | Herniated Disc T-56 with Thoracic and Lumbar Back Pain | 5237 | 10% | 20040505
Other x 1  (Not in Scope) | Other x 7 (Not in Scope) | 20040505
Combined:  20% | Combined:  40%
Derived from VA Rating Decision (VARD) dated 20050211 (most proximate to date of separation [DOS]).
* Ratings in chart are taken from the VARD with the first C&P exam done 11 months after separation.  The VARD closest to separation the VA only used the Service treatment records.

ANALYSIS SUMMARY:

Bilateral Knee Pain Condition.  Treatment records evidence that the CI initially presented with left knee pain in April 2000.  He was treated with activity modification and anti-inflammatory medications.  An orthopedic evaluation dated 11 September 2000 noted left knee pain with stairs and prolonged sitting.  A diagnosis of mild osteoarthritis (OA) of the patella and medial and lateral knee compartments was rendered.  The CI underwent a course of physical therapy without pain relief.  X-rays performed on 26 January 2001 confirmed the diagnosis of OA.  A magnetic resonance imaging (MRI) study performed on 8 May 2002 revealed a left knee meniscal tear, an effusion, and OA.  On 2 July 2002, the CI underwent arthroscopic meniscal and degenerative cartilage debridement.  Six weeks after surgery the CI reported 80% pain improvement; however, in November 2002, the CI noted increased left knee pain with prolonged standing and activity.  At an orthopedic evaluation dated 15 January 2003, the CI reported persistent left knee and gradual onset right knee pain.  The physical examination documented an antalgic gait, full right knee range-of-motion (ROM), joint line tenderness, and mild peripatellar tenderness with crepitus.  An assessment of right knee degenerative arthrosis with potential meniscal tear was rendered.  On 25 February 2003, the CI underwent a right knee arthroscopy with partial removal of the medial meniscus (partial medial meniscectomy) and chondroplasty.  A pain clinic evaluation dated 12 May 2003 noted bilateral knee pain with squatting and limitation of flexion to 110 degrees (normal 140 degrees).  Despite surgical and conservative management the CI continued to report persistent bilateral knee pain and was referred for a medical board.  The narrative summary (NARSUM) noted chronic knee pain recalcitrant to surgery.  The MEB examination was not in evidence.  

At the VA Compensation and Pension (C&P) examination performed 2 months after separation, the CI reported constant pain rated 2-3/10.  He rated the pain flare 2-3 times per day, lasting approximately for 20-30 minutes, and rated 8/10.  At the time of the examination, the CI reported that he was not being treated for his bilateral knee pain.  The bilateral knee examination demonstrated full range of motion, tenderness with manipulation of the patella, and mild crepitus.  A diagnosis of minimal degenerative arthritis bilateral knees was rendered.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the bilateral knee pain condition as a single unfitting condition with a disability rating of 10% coded 5003 (degenerative arthritis).  The VA separately rated each knee as degenerative joint disease at 10%, coded 5260; leg limitation of flexion.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for each compensable joint.  IAW DoDI 6040.44, if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each condition subsumed under the single disability rating must be reasonably justified as separately unfitting in order to remain eligible for rating.  In this case a bilateral condition was profiled and determined to fail retention standards.  Both knees were identified as recalcitrant to surgical and conservative intervention.  Members agreed that each knee is unfitting and that identical coding and ratings are applicable.

The Board then considered if the evidence supported a higher than 10% rating for each knee.  There was no evidence of knee ankylosis (5256), leg limitation of flexion to 30 degrees (5260), leg limitation of extension to 15 degrees (5261), moderate knee abnormality due to bony malunion (5262), recurrent subluxation/lateral instability (5257), or occasional incapacitating episodes (5003) for a 20% rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt); §4.59 painful motion; and §4.40 functional loss, the Board recommends a disability rating of 10% for each knee for bilateral knee pain condition.

Chronic Low Back Pain Condition.  Treatment records evidence that the CI sustained trauma during a bombing on 25 June 1996.  Subsequent to the bombing the CI reported intermittent thoracolumbar and left chest wall pain.  An MRI study of the thoracic spine dated 12 June 2003 demonstrated a disc protrusion at thoracic level 5-6.  A pain clinic consultation note dated 4 September 2003 noted that the CI was started on neuropathic and low dosage narcotic pain medications.  An MRI of the lumbar spine dated 25 March 2004 was unremarkable.  A pain clinic note dated 13 May 2004 documented transient relief of the thoracic pain with administration of a nerve block and persistent lumbar pain.  The examiner opined that the lumbar pain was “probably referred from the facets” and was probably secondary to recurrent injuries and heavy lifting.  The examiner recommended pain management with minimal medications.  The NARSUM noted chronic back and left rib pain.  The MEB examination was not in evidence.  At the VA C&P examination performed 2 months after separation, the CI reported constant thoracic and intermittent lumbar pain with exacerbations 1-2 days per week.  He used Vicodin for his pain flare-ups.  The physical examination demonstrated full range of motion with tenderness over thoracic level six.  A diagnosis of mechanical thoracic and lumbar back pain was rendered.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic LBP condition as unfitting. The PEB and VA rated the thoracolumbar pain at 10%, coded 5237 (lumbosacral strain).  The Board considered whether there was evidence supporting a higher than 10% rating for the chronic LBP condition.  There was no evidence of thoracolumbar forward flexion of less than 60 degrees; combined thoracolumbar motion less than 120 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour for a 20% rating.  Considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 10% for the chronic low back condition was appropriately recommended in this case.  The Board concluded therefore that this condition could not be recommended for additional disability rating.

Obesity Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the obesity condition was not unfitting.  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.  The obesity condition was not profiled nor judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that obesity condition significantly interfered with satisfactory duty performance.  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 fitness determination for the obesity condition contended conditions and IAW DoDI 1332.38 E5.1.3.10 obesity does not constitute a physical disability; therefore it is not ratable.

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 bilateral knee pain condition, the Board unanimously determined that each knee was separately unfitting and recommends a disability rating of 10% for each knee, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the chronic LBP condition 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; 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
Right knee pain | 5099-5003 | 10%
Left knee pain | 5099-5003 | 10%
Chronic low back pain | 5237 | 10%
COMBINED (w/ BLF) | 30%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131002, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD 20762

Dear XXXXXXXXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2013-02101.

	After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was not appropriate under the guidelines of the Veterans Affairs Schedule for Rating Disabilities.  Accordingly, the Board recommended your separation be re-characterized to reflect disability retirement, rather than separation with severance pay.

	I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding, accept their recommendation and determined that your records should be corrected accordingly.  The office responsible for making the correction will inform you when your records have been changed.

	As a result of the aforementioned correction, you are entitled by law to elect coverage under the Survivor Benefit Plan (SBP).  Upon receipt of this letter, you must contact the Air Force Personnel Center at (210) 565-2273 to make arrangements to obtain an SBP briefing prior to rendering an election.  If a valid election is not received within 30 days from the date of this letter, you will not be enrolled in the SBP program unless at the time of your separation, you were married or had an eligible dependent child, in such a case, failure to render an election will result in automatic enrollment.  

Sincerely,

XXXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings

cc:
SAF/MRBR
DFAS-IN

PD-2013-02101