RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00741
BRANCH OF SERVICE:  Army	BOARD DATE:  20150428
SEPARATION DATE:  20061101

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 Network Switching Systems Operator-Maintainer medically separated for low back pain (LBP).  The back condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The back condition, characterized as “chronic low back pain (slight/constant) secondary to intervertebral disc degeneration lumbar), along with one other condition (right knee pain, slight/frequent) was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated the CI fit for duty, but a Reconsideration PEB adjudicated “chronic low back pain…” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining right knee condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “See attached award letter from VA approving 30% Service connection within one year from discharge and secondary conditions were not considered.”  The CI also attached a one page statement to his application which was reviewed by the Board and considered in its recommendations.

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 Recon PEB – Dated 20060921	VA - (~1 Mo. Pre-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Low Back Pain…	5243	10%	Degenerative Disc Disease, L4-L5	5242	20%	20060918	
Right Knee Pain	Not Unfitting	R Knee Patellofemoral Syndrome	5099-5010	10%		
Other x 0 (Not in Scope)	Other x 0 (Not in Scope)		
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20061204.

ANALYSIS SUMMARY:

Low Back Condition.  The service treatment record (STR) documents that the CI sustained a back injury in April 2004 during basic training.  The CI fell approximately 4 feet from an obstacle, and landed on his head.  A 28 November 2005 lumbar spine X-ray was normal.  On 1 February 2006 the CI underwent chiropractic manipulation, electrical stimulation, and hot pack therapy.  On 17 July 2006 (3 months prior to separation), the narrative summary (NARSUM) recounted the history and interventions to date.  The CI failed conservative therapy (physical therapy [PT], chiropractic treatment, and medications) and was not deemed a surgical candidate.  It documented “… rates his pain as 7/10, aggravated by bending, squatting, twisting, standing, and running … the pain is all day … problems sleeping … can't get into a comfortable position … numbness and tingling in both legs and his feet … No bowel or bladder dysfunction.”  The physical exam reported a normal gait with pain when elevating on his toes and heel walking.  Back exam showed tenderness in the right lower lumbar paraspinal area.  Straight leg raise tests (assesses sciatic nerve root compression by a herniated disc) were negative.  Pain limited the range-of-motion (ROM).  The spine ROMs are summarized in the chart below.  A 20 July 2006 lumbar spine magnetic resonance imaging showed focal L5-S1 disc extrusion of disc material, focal L4-L5 disc protrusion, and no significant neuroforaminal narrowing.  The 4 August 2006 electrodiagnostic studies were normal, specifically there was no evidence of a left sided lumbar radiculopathy (irritation of or injury to a nerve root).  On 17 August 2006 the spine clinic orthopedic surgeon evaluated the intervertebral disc herniation and degeneration and documented “This patient is not a surgical candidate for his low back pain secondary to age, in my opinion. … His left leg symptoms are minimal per his report and so I would not think a simple discectomy would give him satisfactory relief.”  An 18 September 2006 lumbosacral spine X-ray showed minimal narrowing of the L4-5 disc space.  In the 18 September 2006 (a month prior to separation) Compensation and Pension (C&P) exam the CI complained of back weakness, stiffness, and low back pain.  “The pain occurs constantly … travels to left leg … Crushing … and sharp in nature.  From 1 to 10 … is at 8 … elicited by physical activity.”  The physical exam showed a normal posture and gait without an assistive device for ambulation.  The feet had no signs of abnormal weight bearing.  The spine exam revealed symmetry of motion and normal curvatures.  The thoracolumbar spine exam revealed tenderness with no evidence of radiating pain on movement.  Muscle spasms and lumbar spine anklylosis were absent.  The spine ROMs are summarized in the chart below.  Spine ROM was additionally limited following repetitive use by pain, fatigue, and lack of endurance.  It was not additionally limited by weakness or incoordination.  Motor function, sensory function, and reflexes were normal.  On 21 September 2006 the CI underwent left L4/L5/S1 facet joint injections with corticosteroids and local anesthetic.  The 16 January 2007 primary care back exam documented full ROM, no spasm, no tenderness, and normal vertebral alignment.  Muscle strength (5/5) and reflexes were normal.  The 25 April 2007 spine center orthopedic surgery evaluation documented “Complains of low back pain … There is no radiation … left thigh is numb.  Bowel and bladder functions are normal.  …The patient describes it as a deep ache.  Current pain on … 1 to 10 is a 5, at best is a 3, at worst is an 8 … constant back pain and intermittent leg pain.”  The physical exam documented the CI had a normal gait and was able to toe and heel walk.  The spine exam showed no tenderness, asymmetry, or deformity.  The lumbar spine ROM was normal in all directions.  Motor function, muscle tone, and muscle bulk were normal.  Reflexes were normal and symmetrical.  Straight leg raise and FABERE (for Flexion, ABduction, External Rotation, and Extension; assesses hip and sacroiliac joint pathology) tests were negative.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB, a month prior to separation, rated the low back condition at 10% (VA code 5243; intervertebral disc syndrome).  The PEB cited disc protrusion without neurologic deficit, tenderness, and ROM limited by pain.  The VARD, a month after separation, rated the low back condition at 20% (5242; degenerative arthritis of the spine).  The VARD cited degenerative disc disease, tenderness, decreased ROM, and ROM additionally limited due to pain, fatigue, and lack of endurance.  Board members agreed that, based on the limitation of motion in evidence on the respective exams, the corresponding ratings by the PEB and VA were appropriate.  In the after separation exams, while the CI did not have resolution of symptoms, he experienced restoration of full ROM.  Of particular note, the ROMs performed at a dedicated “spine center” by an orthopedic surgeon were “normal in all directions.”  Other routes to a rating higher than the PEB’s 10% were considered, but there was inconsistent evidence of additional functional loss from repetitive use to warrant application of VASRD §4.45; and no evidence of incapacitating episodes that would justify a minimum rating under the alternative formula for rating intervertebral disc disease.  After due deliberation, considering all of the evidence, and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the lumbar spine condition.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right knee 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.

Contended Right Knee Condition.  The STR documents that the CI sustained a right knee injury when he stepped in a hole while running.  A 5 May 2004 right knee X-ray was negative.  At the 24 February 2005 family medicine encounter the CI complained of lateral right knee joint pain that was worse with weight bearing.  The CI was able to straighten the knee and the knee did not suddenly “lock up” or “buckle.”  The physical exam documented right knee tenderness without swelling, induration, erythema (redness), warmth, or crepitus (a grating sound or sensation).  There was no collateral ligament laxity and Lachman's and drawer tests (assess integrity of cruciate ligaments) were negative.  Knee ROM was full.  A 4 April 2005 PT encounter reported the CI noted some right knee pain and lateral instability during exercise.  The CI had been unable to walk, given a knee immobilizer and crutches, and attended “knee class.”  Physical exam revealed vague knee pain with palpation and muscle weakness.  There was no deformity or crepitus.  Knee motion was normal.  There was no evidence of instability as Apley and McMurray tests (assess integrity of menisci) and Lachman's and drawer tests were negative.  The NARSUM recounted the history of injury and treatment.  It documented “He has not had a relief of his symptoms to resume his previous level of functioning.  The pain is worse at night, but states he feels it most of the time, rated at 5/10, aggravated by lifting heavy loads, prolonged standing, running, and feels somewhat better with medication and rest.”  The physical exam reported a normal gait with pain when elevating on his toes and heel walking.  Knee exam revealed “Mild popping both knees.  No ligamentous instability.”  The right knee ROMs are summarized in the chart below.  The diagnosis listed right knee pain (slight/frequent) which was medically acceptable.  An 18 September 2006 right knee X-ray was normal.  The C&P exam documented “The pain occurs constantly … is localized … sharp in nature.  From 1 to 10 … the pain level is at 5 … elicited by physical activity … is relieved by rest and medication ….”  The physical exam showed a normal posture and gait without an assistive device for ambulation.  The feet had no signs of abnormal weight bearing.  The right knee demonstrated tenderness and crepitus.  There was no evidence of ligamentous joint laxity or meniscus injury.  The right knee ROMs are summarized in the chart below.  Right knee ROM was additionally limited following repetitive use by pain, fatigue, and lack of endurance.  It was not additionally limited by weakness or incoordination.  Motor function, sensory function, and reflexes were normal.

The Board directed attention to its rating recommendation based on the above evidence.  While the MEB and PEB found the right knee condition met retention standards, was not unfitting, and therefore not rated, it was profiled and implicated in the commander’s statement.  The VARD, rated the right knee condition at 10% (5099-5010; rating by analogy-traumatic arthritis).  The VARD cited painful motion.  The MEB and C&P exams did not demonstrate limitation of motion to support a minimum rating under VA codes for limitation of flexion or extension (5260, 5261).  There was no instability no dislocated meniscus to support minimum ratings under the respective codes (5257, 5258).  Board members agreed that there was sufficient evidence of painful motion (§4.59) prior to separation, as well objective exam findings, to support a 10% rating under 5099-5010.

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 surmised from the record or PEB ruling in this case that no prerogatives outside the VASRD were exercised.  In the matter of the low back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right knee condition, the Board unanimously agrees that it was unfitting and unanimously recommends a disability rating of 10%, coded 5099-5010 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board recommends modifying the case determination as follows, effective the date of medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Low Back Condition	5243	10%	
Right Knee Condition 	5099-5010	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140203, 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, AR20150013343 (PD201400741)

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		     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA