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AF | PDBR | CY2012 | PD 2012 01035
Original file (PD 2012 01035.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX   CASE: PD-2012-01035
BRANCH OF SERVICE: Army  BOARD DATE: 20140411
SEPARATION DATE: 20040417


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Guard Reserve (AGR) MSG/E-8 (37F/Psychological Operations) medically separated for right knee and neck pain. The knee and neck conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent U4/L4 profile and referred for a Medical Evaluation Board (MEB). The knee and neck conditions, characterized as “right knee surgery and chronic right knee pain” and “cervical pain,” were the only conditions forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB combined the two conditions and adjudicated “right knee pain with a history of an injury, and chronic neck pain without any specific history of trauma or injury” as unfitting, rated 0% citing the US Army Physical Disability Agency (USAPDA) pain policy. The CI appealed to the Formal PEB, but withdrew her request as she was allowed to continue in her AGR position and accumulate 20 creditable years for reserve retirement. The CI was separated with 20 years basic pay.


CI CONTENTION: The CI writes: “Should have been medical retirement, 20 yrs. total including reserve time, 18 yrs. active duty.”


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 rating for the unfitting knee and neck conditions is addressed below; and, 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 20031022
 VA - (5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
R Knee Pain and Chronic Neck Pain 5099-5003 0% S/P Surgery R Knee for Medial Femoral condyle Osteochondral Defect 5299-5257 0% 20040901
Degenerative Disc Disease, C5-6-7 5243 0% 20040901
Other x 0 (Not in Scope)
 Other x 6 20040901
Combined: 0%
 Combined: 0%
Derived from VA Rating Decision (VA RD ) dated 200 40928 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: The PEB combined the right knee pain and chronic neck pain conditions under a single disability rating, coded analogously to 5003. Although the VA Schedule for Rating Disabilities (VASRD) §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. IAW DoDI 6040.44 the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for service rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. The commander’s statement implicated both the knee and neck pain conditions, with separate examples as to the limitations imposed from each and the physical profile profiled both the right knee surgery and neck pain as upper extremity and lower extremity permanent level four limitations (U4, L4). To that end, the evidence for the right knee pain and neck pain conditions are presented separately; with attendant recommendations regarding separate unfitness and separate rating if indicated.

Right Knee Pain. The first entry in the medical record for the knee condition is from 21 September 2001, for a pop of the right knee. On the MEB physical examination, performed on 9 May 2003, 11 months prior to separation, the physical examination revealed a right knee mild effusion, with range-of-motion (ROM) flexion 30 degrees shy of the left (140 is normal – 30 = 110) and extension 10 degrees shy (normal is 0). The narrative summary (NARSUM) on 13 May 2003, 11 months prior to separation, notes the CI injured her knee on 1 September 2001 and had immediate pain and swelling when the knee twisted and popped. She went to the emergency room and was provided crutches and 72 hours of quarters. She was treated with physical therapy without improvement. She was evaluated by orthopedics and had a repair of her right knee lateral meniscus and holes were drilled into the patellar cartilage. She continued with pain and swelling after physical therapy. She had a second arthroscopy on 30 May 2002, and continued with pain and swelling. She underwent a Carticel cartilage replacement and a right high tibial osteotomy. She continued with physical therapy and had improved flexion, constant pain of 3/10 daily, and 8-9/10 with work outs during therapy. She wore a hinged brace while ambulating, only took medications for severe pain as needed and iced her knee daily. The note stated the CI used Celebrex (nonsteroidal anti-inflammatory [NSAID]) daily, Percocet (narcotic) as needed, Valium (muscle relaxant) as needed, Benadryl as needed and Tylenol #3 (narcotic) as needed. Physical examination of the right knee revealed mild effusion, stable anteriorly, laterally and medially. ROM was flexion 110 degrees (described as 30 degrees shy of full compared to the left knee, 140 degrees is normal) and extension 10 degrees (0 is normal) shy of full compared to the left knee. A right knee X-ray performed on 13 May 2003 showed status post tibial osteotomy with surgical hardware and a healed osteotomy defect of the medial tibial plateau, no acute abnormalities, slight irregularity of the subchondral contour of the medial femoral condyle also apparent on preoperative X-rays from September 2001, no osteophytes or other abnormalities to definitely confirm the presence of degenerative joint disease. The physical profile was a permanent lower extremity level four (L4) for the right knee surgery condition with limitations of walking at own pace and distance, running, bicycling and swimming at own pace and distance, walk or run in pool at own pace, no backpack, no helmet, no carrying rifle, no firing rifle, no lifting more than 10 pounds. On 19 May 2003, the commander’s statement documented the CI’s knee condition made her unable to perform airborne operation, running or road marching, which were in her military occupational specialty specifications. On 6 June 2003, 10 months prior to separation, an orthopedic follow-up revealed ROM of extension -5 degrees (normal zero), and extension 130 degrees (normal 140). The MEB orthopedic consultation on 12 June 2003, 10 months prior to separation, documented the physical examination was stable knee, well healed incisions, slightly tender to palpation on the medial aspect of tibia at the hardware site, intact neurological and vascular exam distally, ROM was -5 degrees of extension (normal is 0), and 35 degrees of flexion. At the VA Compensation and Pension (C&P) exam performed on 1 September 2004, 5 months after separation, the CI reported she had four surgeries on her right knee, the last one being 2003 “Carticel” replacement. Physical examination of the right knee revealed that pulses were normal, and reflexes were normal, and decreased right knee ROM with knee flexion and extension decreased to approximately 100 degrees (normal is 0-140).

The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Right Knee ROM
(Degrees)		 MEB NARSUM
11 Mo. Pre-Sep
(200 30513 )		 PT ~ 11 Mo. Pre-Sep
(200 30514 )
 VA C&P ~ 5 Mo. Post-Sep
(200 40901 )
Flexion (140 Normal) 110 135 decreased
Extension (0 Normal) 10 -5 -
Comment - - -
§4.71a Rating 10 % 10 % 10 %

The Board first considered if the right knee condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. Members agreed that the functional limitations in evidence justified the conclusion that the limitations were integral to the CI’s inability to perform her MOS rating and, accordingly a separate rating was recommended.

The Board directs attention to its rating recommendation based on the above evidence. The Board considered the VASRD diagnostic code 5099 (analogous rating to) – 5003 (degenerative arthritis) used by the PEB for a 0% rating. The VASRD instructs that application of codes 5099-5003 are to be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved, which in this case is leg extension. The Board found that the ROMs were compensable under code 5261 (leg, limitation of extension of) and rated at 10% due to the limitation of 10 degrees, found in the NARSUM examination, and applying the principle of reasonable doubt. The Board did not find the 12 June 2003 orthopedic ROM evaluation to be consistent with the rest of the examinations and radiological findings, with a ROM of -5 to just 35 degrees. After thorough and conscientious study, the Board could not consider it valid or assign any degree of probative value for a rating to that evaluation. Such a degree of sudden-onset temporary limitation of motion would have been highly alarming to any examiner since 6 days prior flexion was 130 degrees by the same orthopedic examiner and not in concurrence with the known pathology at the time. The Board considered VASRD code 5262 (leg limitation of flexion of) which requires flexion limited to 45 degrees for a 10% rating in the CI’s favor did not apply. The Board then considered codes 5299 (rated analogous to) – 5257 (knee, other impairment of) and found the evidence did not rise above the slight (10%) rating, for a favorable adjudication. The Board also considered code 5259 (cartilage, semilunar, removal of, symptomatic) which has a maximum rating of 10%, providing no rating advantage. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.10 (functional impairment), §4.40 (functional loss), and §4.59 (painful motion), the Board recommends a disability rating of 10% for the right knee pain condition.

Chronic Neck Pain. The right-handed CI was seen by neurology clinic on 8 December 2002, in which she was diagnosed with a C7 cervical nerve impingement. The note documented a history of right-sided neck pain with radiation to the right arm, originating at the base of the neck, down to the tips of the 2nd and 3rd digits with numbness and twitching. She reported she awoke a month prior with this neck pain. She did not recall any trauma. Physical examination revealed normal reflexes, decreased pin sensation 2nd and 3rd digits distally and vibration sense was normal. Neck examination revealed pain reproduced on flexion. On MEB physical examination, on 9 May 2003, the cervical spine ROM were extension painful at 15 degrees (normal 45) and flexion to 30 degrees (normal 45), left rotation 80 (normal 80), right rotation 65 (normal 80) with mild right sided spasm. The NARSUM on 13 May 2003, 11 months prior to separation, notes the CI developed neck pain on the right side on 20 November 2002 upon awakening from sleep. She was given Tylenol #3 (narcotic) and Naprosyn (NSAID) and placed on quarters for 48 hours. She continued with the right neck pain, radiating into her right arm with numbness and tingling into her index finger and middle finger. The note stated she was referred to neurology. The NARSUM also stated she was seen by orthopedics and the CI preferred conservative treatment with Celebrex (NSAID). Physical examination revealed mild right cervical muscle spasm, reflexes 1+ on right, and 3+ on left, otherwise normal neurological examination of the upper extremities. ROM is summarized below with extension painful at 15 degrees (normal 45) and flexion of 30 degrees with pain (normal 45). A magnetic resonance imaging study showed focal degenerative disk with large disk osteophyte complexes at C5-6 and C6-7 levels and moderate stenosis at the C6-7 level (and a small area of cervical cord signal abnormality which likely represents a tiny syrinx from C5-6 to C6-7). The commander’s statement on 19 May 2003 stated that on November 2002 the CI began experiencing neck pain and that the constant pain and lack of motion caused from this disease affected even the simplest of work related tasks, such as sitting at a computer, reaching for an object and at times even holding a pencil. At the VA C&P exam performed 5 months after separation the applicant complained of pain since 2002 that radiated to the right arm. Physical examination of the neck was supple, with full ROM, flexion, and extension normal, decreased sensation to the right medial arm and the 4th and 5th digits.

The goniometric ROM evaluations in evidence, which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Cervical ROM
(Degrees) 		MEB NARSUM ~ 11 Mo. Pre-Sep
(20030513)
 PT ~11 Mo. Pre-Sep
(20030514)		 VA C&P ~5 Mo. Post-Sep
(20040901)
Flex (45 Normal) 30 25 Full
Extension (45) 15 35
R Lat Flexion (45) # 25
L Lat Flexion (45) # 25
R Rotation (80) 65 40
L Rotation (80) 80 45
Combined (340) - 195 -
Comment With pain
§4.71a Rating 20% 20% 0%

The Board first considered if the neck pain condition, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. Members agreed that the functional limitations in evidence justified the conclusion that the limitations were integral to the CI’s inability to perform her MOS rating and, accordingly a separate rating was recommended.

The Board directs attention to its rating recommendation based on the above evidence. The Board considered the VASRD diagnostic codes 5099 (analogous rating to) – 5003 (degenerative arthritis) used by the PEB for a zero percent rating. Application of codes 5099-5003 instructs to rate on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. The Board also considered code 5243 (intervertebral disc syndrome) used by the VA for a 0% rating. The VASRD instructs code 5243 can be rated either under the general rating formula for diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes, “whichever method results in the higher evaluation when all disabilities are combined.” Deliberations proceeded about which examination would hold the most probative value for a rating determination. The VA C&P examination was “full” ROM, without specified goniometric measurements. Using the VASRD §4.46 (accurate measurement) guidance, which states the “use of a goniometer in the measurement of limitation of motion is indispensable in examinations” and after thorough and conscientious study, the Board assigned less probative value to this C&P evaluation than the previous exams. The C&P examination was also performed after separation when the CI was not performing her military duties; thus, that examination was also assigned less probative value during deliberations using the VASRD §4.2 (interpretation of examination reports) which states that each disability must be considered from the point of view of the Veteran working or seeking work. The examinations prior to separation were limited in flexion/extension by goniometric measurement, and in congruence with the radiological and neurological abnormalities and the expected natural course of the disease. The Board found that the ROMs were compensable under code 5243 (intervertebral disc syndrome). Using the general rating formula for diseases and injuries of the spine at the time of separation, the cervical spine condition met the criteria for a rating of 20% due to forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees found in the NARSUM and PT ROM examinations, which were the goniometric ROM measurements closest to the date of separation. The condition also met the 10% rating by the combined ROM of the cervical spine greater than 170 degrees but not greater than 335 degrees (measured at 195 degrees in the PT ROM examination). Debate centered on VASRD §4.7 (higher of two evaluations) which states: “Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned” regarding the flexion/extension ratings versus the combined ROM which could be rated lower. The pain component of this condition, whether or not it radiates, was subsumed under the VASRD general rating formula for diseases an injuries of the spine rating. There was no evidence of ratable peripheral nerve impairment, or documentation of incapacitating episodes, which would provide for a higher rating than 20%. 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 neck pain condition by a vote of 2:1. The single voter for dissent, who recommended a 10% rating, submitted the appended minority opinion. There were no other conditions within the Board’s scope of review for consideration.


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 the USAPDA pain policy for rating the right knee pain and chronic neck pain conditions was operant in this case and the conditions were adjudicated independently of that policy by the Board. In the matter of the right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5261 IAW VASRD §4.71a. In the matter of the neck pain condition, the Board majority recommends a disability rating of 20%, coded 5243 IAW VASRD §4.71a and the single voter of dissent, who recommended a 20% permanent rating, submitted the appended minority opinion.
RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows; and, that the separation be recharacterized to reflect permanent disability retirement, effective as of the date of her prior separation:

UNFITTING CONDITION VASRD CODE RATING
Right Knee Pain 5261 10%
Neck Pain 5243 20%
COMBINED 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120618, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                                   
XXXXXXXXXXXXXXX
President
Physical Disability Board of Review
invalid font number 31502


MINORITY OPINION : Th e overall facts of the case are presented in the majority advisory. The minority voter feels that based on current VASRD guidelines for rating diseases and injuries of the s pine, to include the c ervical spine, a rating of 10% is fair and equitable. Review of the rating criteria indicates two possible choices for rating, forward flexion or the combined ROM .

There were three probative sets of ROM data in the file. Two sets of service data were approximately 11 months prior to separation and performed within one day of each other, with the VA data 5 months after separation. Both service sets of data had forward flexion less than 30 degrees; however, they both had combined ROM greater than 170 degrees, with 195 and 190 degrees, respectively. The VA data identified full ROM, for which the VA awarded a 0% rating for the neck.

While a valid argument can be made for the flexion data, when one views the totality of evidence in the case file, a more accurate evaluation of the neck at the time of separation would be based on the combined ROM.

The PEB reviewed the CI’s medication profile and found that review of the NARSUM supplied pharmacy record notes the last prescription for pain medication was in March 2003, 13 months prior to separation. Additionally, when the CI was seen by orthopedics for her neck, she indicated a preference for conservative treatment with Celebrex. However, her last prescription for Celebrex, with no refills, was in December 2002, 17 months prior to separation.

Based upon the totality of the evidence, the minority voter believes that the combined ROM is the fairest adjudication of the CI’s neck condition at time of separation.


RECOMMENDATION: The minority voter therefore, recommends modification of the CI’s disability determination as follows:

UNFITTING CONDITION VASRD CODE RATING
Right Knee Pain 5261 10%
Neck Pain 5243 10%
COMBINED 20%
invalid font number 31502
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, AR20140019640 (PD201201035)


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 invalid font number 31502

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