RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1100440 SEPARATION DATE: 20040222

BOARD DATE: 20120621

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SPC/E-4 (19D/Cavalry Scout), medically separated for bilateral anterior knee pain syndrome and low back pain (LBP). The CI injured his knees and back in an accident that occurred while on drill status prior to mobilization. The bilateral anterior knee pain syndrome and LBP did not improve adequately with treatment and the CI was unable to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3 profile and referred for a Medical Evaluation Board (MEB). Major depressive disorder (MDD), in partial remission; adjustment disorder with depressed mood; occupational difficulties; epicondylitis; gastroesophageal reflux; onychomycosis; vision deficit, requiring E2 profile; and elevated cholesterol conditions, identified in the rating chart below, were also identified and forwarded by the MEB. The PEB adjudicated the bilateral anterior knee pain syndrome conditions as unfitting, rated together at 0%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD) and both AR 635-40 (B.24 f.) and the US Army Physical Disability Agency (USAPDA) pain policy. The LBP condition was not included in the LOD investigation determination and was thus considered to have existed prior to service (EPTS) and not service-aggravated. The remaining condition(s) were determined to be not unfitting. The CI made no appeals, and was medically separated with a 0% disability rating.

CI CONTENTION: “I request for a review of all applicant's medical conditions. Issue #1 Failure of Army to properly screen for TBI and related psychological problems after a traumatic injury. Issue #2 Failure of the Army to approve LOD for back injuries in a timely manner for MEB. Issue #3 Failure of MEB examining doctors to fully examine applicant with a history of head injury. Issue #4 Failure of the Army and National Guard with submitting of applicant's military medical records to the examining doctors and to the MEB. Issue #5 Army's general policy of not following VA rating scales and being biased to National Guard reserve members regarding MEB's.”

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The conditions MDD, in partial remission, and adjustment disorder with depressed mood, as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview; and, are addressed below, in addition to a review of the ratings for the unfitting conditions of bilateral anterior knee pain and LBP. The other requested conditions are not within the Board’s purview. 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 Army Board for the Correction of Military Records (BCMR).

RATING COMPARISON:

Service PEB – Dated 20031223	VA (~41 Months Post-Separation) – All Effective Date 20070718
Condition	Code	Rating	Condition	Code	Rating	Exam
Bilateral Anterior Knee Pain Syndrome	5099-5003	0%	Patellofemoral Pain Syndrome, Right Knee	5260	10%*	20090709
			Patellofemoral Pain Syndrome, Left Knee	5260	10%*	20090709
Low Back Pain	5299-5237	Not included in LOD	Degenerative Disc disease, Thoracolumbar Spine	5242	20%*	20090709
Major Depressive Disorder, in partial remission/ Adjustment Disorder with Depressed Mood/Occupational Difficulties	Not Unfitting	Schizoaffective Disorder	9211	70%*	20090831
		Major Depressive Disorder/ Adjustment Disorder/Occupational Difficulties	9400-9434	NSC	N/A
Epicondylitis	Not Unfitting	Tendinitis, Left Elbow	5206	10%*	20090709
Onychomycosis	Not Unfitting	Tinea Pedis and Onychomycosis, both feet	7899-7813	0%*	20090709
GERD	Not Unfitting	GERD	7399-7346	NSC	N/A
Vision Deficit, requiring E2 profile	Not Unfitting	Refractive Error	6099-6079	NSC	N/A
Elevated Cholesterol	Not Unfitting	Obesity/High Cholesterol	7099-7005	NSC	N/A
↓No Additional MEB/PEB Entries↓	Not Service-Connected x 6 others
Combined: 0%	Combined: N/A*

*All initially NSC in VARD 20080114 prior to any VA C&P examination.

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. However the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board utilizes VA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation and is limited to conditions adjudicated by the PEB as either unfitting or not unfitting. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Bilateral Anterior Knee Pain Syndrome. There were three goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Bilateral Knee ROM	Ortho ~5 Months Pre-Separation (20030910)	MEB ~3-5 Months Pre-Separation (NARSUM 20031105 Exam 20030915)	VA C&P ~41 Months Post-Separation (20090709)
	Right	Left	Right	Left	Right	Left
Flexion (140⁰ Normal)	130°	130°	140°	140°	130°	135°
Extension (0⁰ Normal)	0°	0°	0°	0°	0°	0°
Comment	Normal gait; no effusion; negative Lachman’s, drawer and pivot shift; no laxity with varus or valgus stress; no joint line tenderness; marked tenderness at the distal pole of both patellae; positive patellar grind and retropatellar tenderness bilaterally; lower extremities are neurovascularly intact; x-rays unremarkable	Positive patellar grind test bilaterally; not clear if goniometer was used; normal x-rays 20030520	Decreased ROM with pain and crepitation, no additional loss with repetitive motion; no abnormal varus or valgus; medial and lateral collateral and anterior and posterior cruciate ligaments all intact; negative Lachman’s moderate patellofemoral tenderness and crepitation with patellar compression on right knee, mild on the left; negative McMurray’s; can squat 60% but limited by pain and crepitation bilaterally
§4.71a Rating	10%	10%	10%	10%	10%	10%

The commander’s statement notes the CI first injured his knees as a result of doing physical training while on drill status in June 2002 and received treatment including physical therapy at a civilian facility. His knees were reinjured during a fall down stairs in March 2003 while on drill status. A LOD investigation dated 12 September 2003 concluded this injury occurred in the LOD. The CI had re-enlisted in the National Guard in May 2002 after a break in service and his enlistment report of medical history on 18 May 2002 does not indicate the presence of knee pain. The report of physical examination is not available for review. The record available for review does not include any episodes of care for knee pain prior to March 2003.

The orthopedic narrative summary (NARSUM) addendum completed on 10 September 2003 noted the CI’s knee pain occurred after the fall described above. He did have abrasions on his knees that had become infected and this was treated with antibiotics. The CI reported anterior knee pain just behind the kneecaps with any squatting, stairs or any running. He denied any recurrent effusions or any instability symptoms. He had been treated with nonsteroidal anti-inflammatory medications, rest, and physical therapy without resolution of his symptoms. The examination findings and ROM measurements are in the chart above. The examiner noted the CI had had more than 6 months of non-operative management of his bilateral anterior knee pain and had achieved maximal medical improvement. No surgery was indicated.

The MEB NARSUM was dictated on 5 November 2003, but the physical exam was completed on 15 September 2003. It included the same clinical history recorded above. It also noted normal knee x-rays and aggravation of knee pain with stair climbing, squatting, kneeling, and crawling. The CI was taking ibuprofen at the time of the examination. The physical exam findings, including ROM measurements are in the chart above. However, is not clear if a goniometer was used or not and the examiner did not address whether pain was present during motion of the knees.

The MEB NARSUM examiner noted the bilateral knee pain had existed prior to federal service and was not aggravated by federal service and this information was included on the MEB DA Form 3947 that was forwarded to the PEB. However, a LOD investigation completed on 12 September 2003 determined this injury occurred in the LOD as the CI was on drill status when the injury occurred. The PEB on 23 December 2003 rated the condition of bilateral knee pain at 0% with the application of both AR 635-40 (B.24 f.) and the USAPDA pain policy but did not consider the condition to have EPTS. The PEB thus applied a 0% rating for bilateral knee pain based on full range-of-motion (ROM) with patellar compression positive.

The VA cited the MEB DA Form 3947 stating the bilateral knee pain had EPTS (EPTS) in the rationale for its initial finding of not service-connected. This decision was made prior to any VA Compensation and Pension (C&P) examination. After a C&P examination was completed and the examiner noted that, at least as likely as not (50/50 probability), the bilateral knee pain resulted from the injury that occurred while the CI was on drill status in March 2003, the VA service-connected the condition and did not consider the condition to have EPTS.

The PEB rated bilateral knee pain under the single analogous 5003 (degenerative arthritis) code. This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation. The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself. As §4.71a criteria are met for separate joint ratings in this case, the Board is pursuing separate ratings and fitness evaluations as follows.

The orthopedic ROM measurements appear to have been completed with a goniometer. However, it is not clear if the MEB NARSUM examiner used a goniometer for the knee ROM measurements. The MEB NARSUM examiner clearly stated she used a goniometer for the back ROM measurements on the Optional Form 275 dated 4 November 2003. However, there is no such statement about the knee ROM measurements. The two examinations were completed only 5 days apart, September 10 and September 15, 2003. As the orthopedic examination appears more likely to be based on goniometric measurements, the orthopedic ROM measurements are awarded a higher probative value.

Either knee pain condition by itself is sufficient to warrant the permanent functional limitations noted on the permanent profile. The right and left knee pain conditions are not considered to have EPTS and the disability ratings should be rated based on the limitations present at the time of separation. The orthopedic examination supports a rating of 10% based on noncompensable pain-limited range of motion of both the right and left knees. With the application of reasonable doubt, MEB NARSUM exam also supports a rating of 10% based on painful motion. However, as a higher probative value is granted to the orthopedic examination ROM measurements, reasonable doubt is not required to warrant a 10% rating for each knee. Additionally, although the VA examination was completed more than three years after separation, it also supports a 10% rating for each knee and shows the CI had permanent functional limitations that resulted from the accident while on drill status. 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 pain syndrome condition and 10% for the left knee pain syndrome condition.

Low Back Pain Condition. There were three goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Thoracolumbar ROM	Ortho ~5 Months Pre-Separation (20030910)	MEB ~3-5 Months Pre-Separation (ROM-20031104 NARSUM 20031105)	VA C&P ~41 Months Post-Separation (20090709)
Flexion (90⁰ Normal)	50⁰	35° (75⁰, 55° (P 25°), 35°(P 25°))	60⁰ with pain
Ext (0-30)	20⁰	20° (25⁰, 28°, 22°)	15⁰ with pain
R Lat Flex (0-30)	20⁰	15° (30⁰,15°, 17°)	25⁰ with pain
L Lat Flex 0-30)	20⁰	20° (30⁰, 24°(P 20°), 21°)	25⁰ with pain
R Rotation (0-30)	Not measured	30° (30⁰, 30⁰, 30⁰)	20⁰ no pain
L Rotation (0-30)	Not measured	30° (30⁰, 35⁰, 35⁰)	20⁰ no pain
Combined (240⁰)	170°-110°	150⁰	165⁰
Comment	Normal gait; minimal tenderness over right paravertebral muscles; Straight leg test both sitting and standing produced only back pain; positive tight hamstrings bilaterally; Bilateral lower extremities: Reflexes 2+ and equal, muscle strength 5/5, sensation intact in all dermatomes;0/5 Waddell signs; x-rays unremarkable	All measured with goniometer except lateral rotation was estimated; P=pain; tenderness to pressure over the right side of the lumbosacral junction but no spasm or deformity; negative straight leg raise bilaterally; Waddell’s signs were negative; reflexes 2+ and equal throughout and motor strength was normal; decreased sensation in right lower extremity along outer calf and foot in S1 dermatome	No increased loss of ROM with repetitive motion; no list or spasm; tenderness in the right and left paralumbar regions; sitting straight leg raising (SLR) produced back pain at 80° on the right and at 80° on the left; supine SLR both sides produced back pain at 65°; x-rays 20030520 were normal; x-ray 20090709 showed degenerative disc diseases in the thoracic and lumbar spine, most pronounced at L1 to L3
§4.71a Rating	20%	20%	20%

The commander’s statement notes the CI also injured his back during the fall down stairs in March 2003 while on drill status. This back injury was also determined to have occurred in the line of duty (LOD) and a memorandum dated 27 January 2009 attests to this finding. The CI had re-enlisted in the National Guard in May 2002 after a break in service and his enlistment report of medical history dated 18 May 2002 does not indicate the presence of back pain. The report of physical examination is not available for review. The record available for review does include one episode of care for a muscle strain of the back in February 1976 with a restriction of no heavy lifting for an unspecified time period. There are multiple other visits from 1975 and 1976 but no other visits were for back pain and this one incidence appears to have been minor. The record available does not contain any other episodes of care for back pain prior to March 2003. Other than the permanent MEB profile, there are no temporary or permanent profiles related to back pain in the record.

The MEB NARSUM, dated 5 November 2003, notes the CI reported he had had intermittent LBP for 10 to 15 years, occasionally requiring treatment by a chiropractor but never causing any lost work time, either at his civilian job or at any military duty or training. In March 2003 he was helping to move a desk, slipped on some steps and fell down four steps, landing on his knees. He subsequently developed increasing low back and knee pain and saw his civilian doctor. One visit on 3 April 2003 noted the CI had been feeling stiff and achy for 9 days with LBP that radiated up to his neck. He reported he had been seen at Balboa hospital after the accident and had had knee x-rays done but no back x-rays. He was also requesting 3 month’s worth of medications he needed for deployment. The physical exam noted full ROM of his back but he moved slowly due to pain. The examiner also noted the CI appeared to be stiff and had some discomfort with ambulation. The neurologic exam was normal. Treatment with Ibuprofen for pain was recommended but duty limitations were not addressed.

The MEB NARSUM also reported the CI was seen by chiropractor and in physical therapy for multiple treatments. When he arrived at Fort Carson and went through Soldier Readiness Processing (SRP), he was referred to family practice and was given a permanent P3 profile but no further action was taken. He deployed with his unit to Tooele Depot in Utah and he was subsequently referred back to Fort Carson for a fitness for duty evaluation. This was completed by orthopedics on 10 September 2003 and the examination with ROM measurements is in the chart above. This evaluation reported the CI had developed knee abrasions as a result of the fall that became infected and were treated with antibiotics. In the few days after the fall the CI had right-sided LBP with intermittent radiations to the hip area but no numbness, tingling, or bowel or bladder incontinence. The CI reported his pain was increased with any running, sit-ups, bending at the waist, and lifting more than 30 pounds. The orthopedic surgeon noted the CI had had more than 6 months of non-operative management of his LBP and had reached maximal medical improvement. No surgery was indicated and he recommended the CI be referred to the PEB.

The MEB NARSUM was dictated on 5 November 2003, but the physical exam was completed on 20030915 and the ROM measurements were completed on 4 November 2003. This NARSUM reports the same clinical history and notes an MEB was initiated in August 2003. At the time of this exam, the CI reported daily LBP, worsened by sleeping in the wrong position, repeated bending, heavy lifting, walking more than 10 minutes, or standing more than 10 minutes (especially if unsupported). The ROM measurements and exam findings are in the chart above. Of note, this examiner found an area of decreased sensation in the S1 dermatome but the orthopedic evaluation did not.

The MEB NARSUM examiner noted the LBP had existed prior to federal service and was not aggravated by federal service and this information was included on the MEB DA Form 3947 that was forwarded to the PEB. The PEB on 23 December 2003 did not rate the condition of LBP as it was not included in the LOD determination the PEB had available. The accident had occurred prior to the CI’s activation on 14 May 2003 and the condition was not considered to be related to active service. However, the LOD investigation eventually did determine this injury occurred in the LOD as the CI was on drill status when the injury occurred. This determination was not made until January 2009 and was not available to the PEB. The VA also cited the MEB DA Form 3947 stating the back pain had EPTS in the rationale for its initial finding of not service-connected. This decision was made prior to any VA C&P examination. After a C&P examination was completed and the examiner noted that, at least as likely as not (50/50 probability), the LBP resulted from the injury that occurred while the CI was on drill status in March 2003, the VA service-connected the condition and did not consider the condition to be EPTS.

The history of minor back pain as evidenced in the record and the CI’s report in the MEB NARSUM would not have caused the functional limitations the CI had at the time of separation. His pain and decreased ROM were due to the injury that occurred while he was on drill status which was ultimately determined to have occurred in the LOD. Therefore the condition at the time of separation is not considered to be EPTS and should be rated based on the limitations present at the time of separation. The examinations of September and November 2003 both support a rating of 20% based on limitation of thoracolumbar spinal flexion not greater than 60 degrees. Although the VA examination was completed more than 3 years after separation, it also supports a 20% rating and shows the CI had permanent functional limitations that resulted from the accident while on drill status. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the LBP condition.

Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were MDD, in partial remission, and adjustment disorder with depressed mood. The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. 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.

Neither of these conditions was profiled; neither was implicated in the commander’s statement; and, neither was judged to fail retention standards. A psychiatric addendum to the NARSUM was completed in October 2003 and it noted a history of mental illness beginning in 1993. The CI had been on medication and in therapy with satisfactory relief of his symptoms of depression and anxiety both prior to and during his mobilization. Although the examiner assessed a GAF of 65, he noted the CI had a good prognosis and opined that his psychiatric condition was not unfitting for military service. All evidence was reviewed by the action officer and considered by the Board. There was no indication from the record that either of these conditions 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 any of the contended mental health conditions; and, therefore, no additional disability ratings 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 both AR 635-40 (B.24 f.) and the USAPDA pain policy for rating bilateral knee pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the right knee pain syndrome condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5014 IAW VASRD §4.71a. In the matter of the left knee pain syndrome condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5014 IAW VASRD §4.71a. In the matter of the LBP condition, the Board unanimously recommends a disability rating of 20%, coded 5237 IAW VASRD §4.71a. In the matter of the contended MDD, in partial remission, and adjustment disorder with depressed mood conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. 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 Anterior Knee Pain Syndrome	5099-5014	10%
Left Anterior Knee Pain Syndrome	5099-5014	10%
Lumbosacral Strain	5237	20%
COMBINED (with BLF 1.9)	40%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110222, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB / ), 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for XXXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20120011855 (PD201100440)

1. Under the authority of Title 10, United States Code, section 1554(a), I accept, in part, so much of the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the subject individual to increase the rating for knee pain from 10% to 20%. There is insufficient justification to support the Board’s full recommendation in accordance with Army and Department of Defense regulations.

2. I reject the PDBR recommendation for a 20% rating for low back pain. The Physical Evaluation Board (PEB) appropriately determined that the individual’s back pain was not incurred or permanently aggravated while entitled to base pay. Although the PDBR states that the individual received a Line of Duty (LOD) in 2009 that adds back pain to his previous LOD, his clinical evaluation at the San Diego Naval Hospital after the incident in March 2003 does not mention any back injury or back complaint. The only diagnosis at that time was knee contusions. The original LOD was generated almost 6 months after the individual’s knee contusions (September 2004) and does not mention anything about back pain. The individual was noted to have a greater than 10 year history of back pain prior to 2003. He has not documented that his back pain was a result of any incident that occurred while on active duty.

3. 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.

4. 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 XXXXXXXXXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA