RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-02542
BRANCH OF SERVICE:  Army	BOARD DATE:  20150116
SEPARATION DATE:  20051111

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-7 (Human Resources) medically separated for chronic bilateral knee and low back pain (LBP).  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The CI was permitted to take all forms of the Army physical fitness test alternate aerobic portion.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The knee and back conditions, characterized as “tricompartment osteoarthritis bilateral knees, chronic pain” and “L4-5 slight left paracentral disc protrusion and DDD [degenerative disc disease], mild disc dissection L5-S1, chronic low back pain,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated the CI as fit for duty based on his ability to perform most functional activities as a soldier of his grade and functional specialty.  The CI appealed for reconsideration outlining his inability to participate in a regular physical training (PT) program and the constant pain that he was in.  The reconsideration IPEB adjudicated “chronic bilateral knee pain” and “chronic low back pain” as unfitting, rated 10% and 0% respectively, with likely application of AR 635-40.  The CI made no further appeals and was medically separated.

CI CONTENTION:  “I believe with the number of issues I had at the time of discharge 10% was low for the amount of time I spent for dedicated service and intent to retire, with conditions that have only worsened with time.  I should at least be able to enjoy Post priveledges, ie. Commissary, PX, flights etc as a Medically retired veteran.” [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 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 Veterans Affairs Schedule for Rating Disabilities (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. 

In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:

Service Recon IPEB – Dated 20050729	VA - (4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5003	10%	Osteoarthritis of Lt Knee	5260	10%	20060303	
			Osteoarthritis of Rt Knee	5260	10%	20060303	
Chronic Low Back Pain	5237	0%	Degenerative Disc Disease of L-Spine	5242	10%	20060303	
Other x 0 (Not In Scope)	Other x 2	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20060804 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Bilateral Knee Condition.  Service treatment records indicated the CI had dislocated his right knee cap when he was 17 years old, as noted on his entry physical.  The narrative summary (NARSUM) dated 11 April 2005, 7 months prior to separation, noted the CI developed bilateral knee pain (5-7/10) and swelling in 1999 with training exercises:  airborne operations, ruck marching, running, squatting, kneeling, long walking, and stair use.  He was referred to orthopedics in 2003 after the knees did not improve with pain medicine.  He reported chronic bilateral knee pain (4/10) that was worse with all activities and not responsive to medications and rest.  History and Physical exam performed in 2003 revealed crepitus (popping and cracking sounds) in both knees with motion.

Physical therapy MEB range-of-motion (ROM) testing on 21 April 2005 stated “normal knee range” for measured active and passive ROMs of 0-135 degrees for each knee (normal is 0-140 degrees).  Orthopedics evaluation dated 22 April 2005 note was included in the NARSUM and indicated X-rays showed bilateral tricompartmental osteoarthritis.  The CI reported he had pain and discomfort following a jump after the PT testing in 2004 and pain with using his left knee to shift gears.  Examination showed ROM of 0-122 degrees on the left and 0-124 degrees on the right.  There was crepitus over both patellas (knee caps) with passive motion (L>R) and no meniscal signs.  “With stressing the patellas, there is pain in both a caudad and cephalad direction, a little less going from medial to lateral.”  The NARSUM exam noted bilateral knees with crepitus with flexion, extension, and grinding and pain with flexion greater than 90 degrees.  There was no gross swelling or evidence of instability.  The consultant and NARSUM examiner indicated that the CI could not participate in lower extremity training or aggressive activity.

At the VA Compensation and Pension (C&P) exam, dated 3 March 2006, 4 months after separation, the CI reported baseline pain was 1/10 and he had lost no time from work.  Examination of the knees revealed no swelling, effusion, or deformity bilaterally, but there was crepitus with flexion and extension bilaterally.  Squatting created discomfort.  There was mild pain upon flexion of the left and right knee at 125 degrees that lessened at 90 degrees.  There was no change in function by Deluca standards.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the two knee pain conditions into a single unfitting condition characterized as: “Chronic bilateral knee pain,” coded 5003 and rated at 10%.  The VA coded the knees separately at 5260, leg, limitation of flexion and assigned a disability rating of 10% for each knee.  The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each disability rating.  In this case, both knees were considered to fail retention standards; both were implicated by the NARSUM and in the commander’s statement; and, both were profiled.  Members agreed therefore that each knee can be reasonably justified as separately unfitting.  Each knee had radiographic evidence of osteoarthritis, crepitus, and flexion less than the normal limits (140 degrees) and therefore identical ratings for each knee was warranted.  The Board agreed that there was sufficient evidence of painful motion to warrant a 10% rating for each knee IAW VASRD §4.59 (painful motion) and §4.45 (the joints).  Other pathways to a higher rating were considered, but there was no ankylosis or objective instability, no meniscal removal and no limitation of motion sufficient to warrant any rating higher than 10% for each knee.  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 right knee condition and 10% for the left knee condition, each coded 5003.

Low Back Condition.  The NARSUM noted the CI developed LBP and spasm while stationed in Kosovo in 2000.  Conservative treatment with a muscle relaxant, steroid injection, and a temporary profile initially relieved the pain.  He had several more episodes in 2002, 2002, and 2003, experiencing pain (6/10).  He performed parachute jumps about 30 times per year.  In September 2004 he developed chronic LBP (5/10) with rare spasm and episodes of numbness and tingling in his left leg.  Magnetic resonance imaging performed in October 2004 showed L4/5 slight left paracentral disc protrusion superimposed upon DDD and mild disc desiccation of L5/S1.  Physical exam of the lumbar spine showed pain with flexion and rotation, with normal neurological testing, normal strength in lower extremity muscles and no muscle wasting.  Gait and spinal contour were not mentioned.  He was evaluated by Physical Medicine and Rehab in November 2004.  He received a combination of interventions that included acupuncture, trigger point injections and physical therapy but they provided minimal and transient relief.  A lumbar epidural corticoid steroid injection at L4-5 did not relieve his symptoms after a week.  He received a P3 profile that restricted all physical activities, including running, ruck marching, jumping, and lifting greater than 15 lbs.

At the orthopedics evaluation dated 22 April 2005, the CI rated his back pain as 8/10.  He had no bowel or bladder problems.  His P3 profile was primarily for back pain.  He reported tingling in the left foot primarily when the back pain was severe.  Physical exam of the lumbar spine noted he was able to forward flex slowly.  He could stand on his toes and heels well.  Straight leg raise (for radicular symptoms) was negative.  Lower extremity reflexes were intact.  No abnormal gait or abnormal spinal contour was mentioned.  The orthopedics specialist and NARSUM physician opined the CI could not return to soldier duties and failed to meet retention standards.  Physical therapy MEB ROM testing on 21 April 2005 the day prior to the orthopedic evaluation documented active forward flexion to 60 degrees (normal 90 degrees) and a combined ROM of 160 degrees (normal 240 degrees).  The examiner stated “Mildly limited lumbar ROM with pain, particularly at greater than 20⁰ flexion.”

At the VA C&P exam, the CI reported he had LBP after repetitive parachute jumping.  The pain was constant (5/10 point scale) and became sharp, up to eight with flare-ups.  Pain was limited by movement; bending, prolonged sitting over 30 minutes and prolonged standing of 2-3 hours.  He reported putting on his shoes and socks could be difficult.  Anti-inflammatory medicine, heat, and rest alleviated the pain.  He was working as a TSA screener at the airport and had lost no time from work.  Exam of the lumbar back showed no obvious deformity, no muscle spasm, negative test of straight leg raising, and no pain with palpation.  There was pain with forward flexion of the back at 80 degrees, and pain with extension, bilateral flexion and rotation.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under the 5237 code citing “Combined passive back ranges of motion equal 198 degrees with notation that pain does limit ranges,” while the VA rated the condition 10%, coded 5242.  Ratings under the VASRD general spine formula use active (versus passive) ROMs, and notes 2, and 4 direct that spine measurements be truncated at the VA normal and rounded to the nearest 5 degrees before combining.  The PEB disability description therefore indicated likely application of AR 635-40 (mechanical loss of motion only).

The rating for the back in this case relied predominately on limited ROMs as there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour and no incapacitating episodes (physician prescribed bed rest).  All exams documented limited ROMs and painful motion (IAW VASRD §4.59) to warrant a minimum of a 10% rating, and the PT MEB exam would have warranted a 20% rating for forward flexion not greater than 60 degrees.  The Board therefore deliberated between a 10% and 20% spine rating.  The orthopedic exam did not provide full spine measurements for complete rating, and the NARSUM exam noted only pain with flexion/rotation without specifying any ROM degree measurements.  However, the level of limited forward flexion from the PT MEB exam was not supported by the partial orthopedic ROM accomplished the following day, the bulk of the treatment records, or by the post-separation VA C&P exam (which was closer to the date of separation).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59 (painful motion), the Board recommends a disability rating of 10% for chronic LBP coded 5237.

The Board finally deliberated if additional disability was justified for peripheral nerve impairment.  The CI had symptoms of intermittent numbness and tingling in his legs.  However, there were no complaints of muscle problems, and objective peripheral nerve, muscle strength, and reflex testing was normal.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  There was insufficient evidence in this case of functional impairment attributable to peripheral neuropathy that adversely impacted duty performance.  The Board therefore concluded that no peripheral nerve (radiculopathy) condition could be recommended for additional disability rating.

Mental Health Review.  During an initial pain assessment dated 22 November 2004, the CI indicated that his pain affected his emotions, causing him to be angry and sad and indicated that he was only taking pain medication.  There were no service MH treatment records in evidence.  On the MEB history and physical (DD Form 2807), dated 31 March 2005, the CI indicated he had constant anxiety around his children, trouble sleeping at times, and was taking antidepressant medication and undergoing counseling for depression.  The profiling section of the DD Form 2808 listed a diagnosis of “anxiety - not disqualifying, stable with meds” and assigned an S1 profile.  The examiner was silent about the criteria in support of any anxiety diagnosis.  The commander’s statement (8 months prior to separation) mentioned that the CI had depression as a result of his DDD and degenerative arthritis of his knees and had gained weight affecting his mental wellbeing, but did not state a MH condition was an impediment to performance of duty.  The NARSUM listed a diagnosis of “anxiety, stable with medication - not disqualifying,” and Prozac (antidepressant) was a listed medication (with the antidepressant Wellbutrin also noted in the medication list in April 2005).  The MEB DA Form 3947 and the PEB Form 199 did not mention a MH condition.  There was no VA mental disorder exam or rating in the record.

The Board reviewed the records for evidence of inappropriate changes in diagnosis of the MH condition during processing through the DES.  The evidence of the available records showed a diagnosis of anxiety, not disqualifying, was rendered during the DES process (DD Form 2808), but not listed on the MEB.  The anxiety diagnosis was not forwarded by the MEB or adjudicated by the PEB; therefore the Board determined that this applicant did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  It was unclear if the noted “anxiety” was considered a symptom or a MH diagnosis of an anxiety disorder.  Board members concluded that the preponderance of evidence did not support a formal Axis I diagnosis of anxiety at the time of separation as adequate pre-separation evidence was lacking.  There was not a preponderance of evidence for diagnosing any other MH disorder.

The Board next considered whether any mental condition, regardless of diagnosis, was unfitting for continued military service.  The Board’s threshold for recommending a not-unfit determination requires a preponderance of evidence.  All Board members agreed that evidence of the record reflected minimal occupational impairment on the basis of MH related symptoms.  The commander’s statement indicated depression (or depressed mood) might be present as a result of pain from orthopedic injuries but did not specifically state it was a cause of duty impairment.  At no time during the applicant’s military service did he require a psychiatric hospitalization or emergency care.  No MH condition was permanently profiled or was judged to fail retention standards.  There was no indication from the record that any MH condition significantly interfered with satisfactory duty performance.  The Board therefore concluded that there was insufficient evidence that any MH condition rose to the level of being unfitting at the time of separation.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a determination of unfit for any mental health condition; and therefore, no MH disability rating can be 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.  As discussed above, PEB reliance on AR 635-40 for rating the back condition was likely operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the chronic bilateral knee pain (tri-compartment osteoarthritis) condition, the Board unanimously recommends that each joint be separately rated as follows:  an unfitting left knee condition coded 5003 and rated 10%, and an unfitting right knee condition, coded 5003 and rated 10%, both IAW VASRD §4.71a.  In the matter of the chronic LBP condition, the Board unanimously recommends a disability rating of 10%, IAW VASRD §4.71a, with no additional peripheral nerve rating.  In the matter of any contended MH condition, the Board unanimously recommends no additional disability rating.  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	
Chronic Left Knee Pain (Tri-compartment Osteoarthritis)	5003	10%	
Chronic Right Knee Pain (Tri-compartment Osteoarthritis)	5003	10%	
Chronic Low Back Pain	5237	10%	
COMBINED (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131123, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

				
XXXXXXXXXXXXXXX
President
DoD 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, AR20150010429 (PD201302542)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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