RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
BRANCH OF SERVICE: ARMY
SEPARATION DATE: 20030906
NAME: XXXXXXXXXXXXXX
CASE NUMBER: PD1200646
BOARD DATE: 20121213
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SPC/E‐4 (91W/Medical Specialist), medically
separated for a low back and a right knee condition. The CI did not improve adequately with
surgical treatment and post‐rehabilitative treatment for the right knee condition and
conservative treatment for the low back condition and was unable to perform within her
Military Occupational Specialty (MOS), meet worldwide deployment standards or meet physical
fitness standards. She was issued a permanent L3 profile referred for a Medical Evaluation
Board (MEB). The Physical Evaluation Board (PEB) adjudicated the back and right knee
conditions as unfitting, rated 10% and 10%, respectively, with Department of Defense
Instruction (DoDI) 1332.39, AR 635‐40 and the US Army Physical Disability Agency (USAPDA)
pain policy. The CI made no appeals, and was medically separated with a combined 20%
disability rating.
CI CONTENTION: “There is substantial evidence on recorded by an MRI for Knee condition
worsening. There are more frequent back spasms/pain since leaving Army. Therefore I am
currently on medication for constant back pain & severe muscle spasms in back. It was affected
me to where it is difficult to maintain a job due to pain that I have.”
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. 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 Correction of Military Records.
RATING COMPARISON:
Service IPEB – Dated 20030512
Condition
Code
Rating
VA (1 Mos. Post‐Separation) – All Effective Date 20030907
Condition
Code
Rating
Exam
Chronic Pain, Right Knee,
Status Post Anterior
Cruciate Ligament
Reconstruction
Chronic Low Back Pain,
due to Degenerative Disk
Disease without
Neurologic Abnormality
5099‐5003
10%
5299‐5295
10%
Status Post Anterior Cruciate
Ligament Repair, Right Knee
Strain
Degenerative Joint and Disc
Disease with Scoliotic
Deformity, Lumbar Spine
5260
10%
20031006
5292
10%
20031006
↓No Addi(cid:415)onal MEB/PEB Entries↓
Combined: 20%
Bipolar Type 1 Disorder
9432
10%
20031004
0% X 0 / Not Service‐Connected x 1
Combined: 30%
ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application
regarding the significant impairment with which her service‐incurred conditions continue to
burden her. The Board wishes to clarify that it is subject to the same laws for service disability
entitlements as those under which the Disability Evaluation System (DES) operates. The DES
has neither the role nor the authority to compensate members for anticipated future severity
or potential complications of conditions resulting in medical separation. That role and
authority is granted by Congress to the Department of Veterans Affairs (DVA), operating under
a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence
proximal to separation in arriving at its recommendations, but its authority resides in evaluating
the fairness of DES fitness decisions and rating determinations for disability at the time of
separation. While the DES considers all of the member's medical conditions, compensation can
only be offered for those medical conditions that cut short a member’s career, and then only to
the degree of severity present at the time of final disposition. The DVA, however, is
empowered to compensate all service‐connected conditions and to periodically re‐evaluate
said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of
impairment vary over time.
Right Knee and Low Back Condition. The CI received an orthopedic waiver for her right knee
status post (s/p) anterior cruciate ligament (ACL) reconstructive surgery in 1994 to enlist in the
Army in May 2000. Six months into training she was diagnosed and treated for stress fractures
of the bilateral tibias (lower leg), right knee pain, low back pain and limb length discrepancy
(LLD) with the right leg longer than the left. The stress fractures resolved 6 months later which
was confirmed by a bone scan and the limb length was treated with a left heel lift. The right
knee and low back pain, however, persisted despite conservative treatment resulting in
continuation of profiles for over a year in service. A subsequent orthopedics evaluation
diagnosed patellar tendonitis and LLD and recommended a P2 profile in October 2001. This
was not in evidence for review. A year lapsed with one service treatment record (STR) entry for
magnetic resonance imaging (MRI) exam of the low back while in Kuwait in April 2002. There
was also one entry for care of the right knee in May 2002, stateside. The evidence then
reflected an orthopedic STR entry in January 2003 who diagnosed DDD and DJD of the low back,
referred her to physical therapy and noted she had to return stateside one month earlier from
deployment due to this condition. Pain management also evaluated the low back and treated
with injection therapy with mild relief. She underwent right knee surgery for symptomatic
hardware removal, debridement of scar and notch impingement tissue, and partial lateral
menisectomy and had additional operative findings of chondromalacia.
The treating
orthopedic surgeon documented 6 weeks into rehabilitation that she was doing well but still
had persistent knee and back pain and after maximizing her chances of returning to duty and
was still unable to function at the level required of her MOS. The surgeon further opined her
right knee condition was “somewhat stable and I think there is a potential it could decline in the
future, but this is only speculation” and thus dictated her MEB for chronic right knee and low
back pain. The permanent profile identified both conditions with the following limitations; no
running, jumping, rucking, or standing greater than 30 minutes. The profile allowed a push‐up
only physical training test, marching up to 1 mile and lifting up to 40 pounds. The commander’s
statement corroborated the medical conditions and profile limitations. Additionally, the
commander documented she had to be returned early from a Qatar deployment and did not
currently deploy with the unit to the Middle East as she was unable to perform critical field
duties.
There were two goniometric range‐of‐motion (ROM) evaluations in evidence for the right knee,
with documentation of additional ratable criteria, which the Board weighed in arriving at its
rating recommendation; as summarized in the chart below.
2 PD1200646
Right Knee ROM
Flexion (140⁰ Normal)
Extension (0⁰ Normal)
Comment
§4.71a Rating
MEB ~5 Mo. Pre‐Sep
VA C&P ~1 Mo. Post‐Sep
140⁰
#⁰
130⁰
0⁰
Quad atrophy from
surgery, silent to painful
motion
10%
Valgus stress produced pain,
stable knee
10%
The MEB physical exam demonstrated a well healed incision and two new arthroscopy incisions
on the right knee and obvious quadriceps atrophy. Postoperative X‐rays revealed removal of
the screw on the tibial side, otherwise unremarkable. At the VA Compensation and Pension
(C&P) exam after separation, the CI reported swelling of the right knee if she walked for more
than 1.5‐2 hours and a constant ache which was relieved with local analgesic creams and
nonsteroidal medications. The C&P exam demonstrated an 8 x 0.5 cm vertical scar that was
hypopigmented and nontender, pain of the medial collateral ligament otherwise noted a stable
knee, no effusion and no Deluca observations.
The Board directs attention to its rating recommendation based on the above evidence. The
PEB’s 10% rating reflected application of the USAPDA pain policy for rating, but was consistent
with §4.71a standards; for conceding either VASRD §4.59 (painful motion) or VASRD §4.10
(functional impairment) or less likely §4.40 (functional loss) with their chosen code and also
meets a 10% rating under the 5259 code for continued pain after menisectomy. The VA’s 10%
rating invoked criteria §4.59 and coded 5260 for non compensable limitation of flexion.
Members considered a 20% rating under the 5258 code (cartilage, semilunar, dislocated with
frequent episodes of “locking, pain, and effusion into the joint) or the 5257 code for (recurrent
subluxation of the knee) and agreed this rating could be not supported by the evidence.
Members also agreed there was no evidence of incapacitating episodes to support additional or
a 20% rating under the 5003 code. The Board deliberated the application of dual ratings based
on separate ratings for instability and limitation of motion (or painful motion) as established by
VA policy in effect at the time of separation (General Counsel Opinion of July 1, 1997 and Fast
Letter 04‐22 of October 1, 2004). By internal policy and precedent, the Board adheres to this
guidance. Members agreed the evidence does not support any evidence of instability. 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 right knee condition.
There were two goniometric ROM evaluations
low back, with
documentation of additional ratable criteria, which the Board weighed in arriving at its rating
recommendation; as summarized in the chart below.
in evidence for the
MEB ~5 Mo. Pre‐Sep
VA C&P ~1 Mo. Post‐Sep
Thoracolumbar ROM
Flexion (90⁰ Normal)
Ext (0‐30)
R Lat Flex (0‐30)
L Lat Flex 0‐30)
R Rotation (0‐30)
L Rotation (0‐30)
Combined (240⁰)
§4.71a Rating
90⁰
15⁰
25⁰
25⁰
#⁰
#⁰
215
10%
90⁰
30⁰
30⁰
30⁰
30⁰
30⁰
240⁰
Comment
Silent to painful motion
painful motion with flexion
repetition
0%
The MEB physical exam demonstrated normal neuromuscular findings and no signs of disc
herniation. The MRI of the lumbar spine revealed spondylolytic changes affecting L4 to S1 and
at L5‐S1 consistent with lumbar spondylosis. At the C&P exam after separation, the CI reported
3 PD1200646
low back pain worse with lying flat or on a soft bed and bending forward. She denied radiation
of pain, numbness, tingling or urinary or bowel symptoms. The C&P exam demonstrated
tenderness in the L5‐S1 and normal neuromuscular findings of the lower extremity. X‐ray
revealed a scoliotic deformity with degenerative disk changes involving the lower lumbar spine.
The Board directs attention to its rating recommendation based on the above evidence. The
2002 VASRD coding and rating standards for the spine, which were in effect at the time of
separation, were modified on 23 September 2002 to add incapacitating episodes (5293,
Intervertebral disc syndrome), and then changed to the current §4.71a rating standards on
26 September 2003. The 2002 standards for rating based on ROM impairment were subject to
the rater’s opinion regarding degree of severity, whereas the current standards specify rating
thresholds in degrees of ROM impairment. For the reader’s convenience, the 2002 rating codes
under discussion in this case are excerpted below. The three potentially applicable codes from
the 2002 VASRD are excerpted below:
5292 Spine, limitation of motion of, lumbar:
Severe ………………………………………………………..……….………….... 40
Moderate …………………………………….……………….…….…………...…. 20
Slight ………………………………………………………..…………………..….10
5295 Lumbosacral strain:
5293 Intervertebral disc syndrome:
Severe; with listing of whole' spine to opposite side, positive
Goldthwaite's sign, marked limitation of forward bending in
standing position, loss of lateral motion with osteo-arthritic
changes, or narrowing or irregularity of joint space, or some
of the above with abnormal mobility on forced motion …………………..…... 40
With muscle spasm on extreme forward bending, loss of lateral spine
motion, unilateral, in standing' position ……………...…………..…...….….. 20
With characteristic pain on motion ………………………………..……...…….…. 10
With slight subjective symptoms only ……………………...………………...……. 0
Pronounced; with persistent symptoms compatible with: sciatic
neuropathy with characteristic pain and demonstrable muscle
spasm, absent ankle jerk, or other neurological findings appropriate
to site of diseased disc, little intermittent relief ………………..….……….….. 60
Severe; recurring attacks, with intermittent relief ……………..…….………..….…40
Moderate; recurring attacks ……………………………………………............…...20
Mild ……………………………………………………………..…………….….…10
Postoperative, cured ……………………………………………..……………....…..0
The PEB assigned a 10% rating coded 5295 for characteristic pain on motion. Members agreed
the NARSUM is silent to painful motion however noted if one is to speculate the rotation ROMs
are normal then the combined ROM supports a slight limitation of motion to meet the 10%
rating for code 5292, the VA chosen code. The 20% rating for 5295 is fairly specifically defined
as noted above. The CI’s condition clearly did not meet the criteria for the 20% under the 5295
code based on either the MEB or the VA examinations. The VA assigned a 10% rating coded
analogous to 5292 for slight
limitation or
incapacitation over 2 weeks or other neurological disability. Members considered the 5293
code and agreed the evidence does not support moderate; recurring attacks for the 20% higher
rating. There is no evidence of documentation of incapacitating episodes which would provide
for additional or higher rating. After due deliberation, considering all of the evidence and
mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there is insufficient cause
limited motion, no evidence of moderate
4 PD1200646
to recommend a change in the PEB adjudication for the low back condition. Since an
alternative VASRD code confers no rating benefit, no change is 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. The Board did not
surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD
were exercised. As discussed above, PEB reliance on DoDI 1332.39, AR 635‐40 and the USAPDA
pain policy for rating right knee and low back condition was operant in this case and the
conditions were adjudicated independently of that policy by the Board. In the matter of the
right knee and low back 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, therefore, recommends that there be no recharacterization of
the CI’s disability and separation determination, as follows:
VASRD CODE RATING
5099‐5003
10%
5299‐5295
COMBINED
10%
20%
UNFITTING CONDITION
Chronic Pain, Right Knee, Status Post Anterior Cruciate Ligament
Reconstruction
Chronic Low Back Pain, due to Degenerative Disk Disease without
Neurologic Abnormality
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120606, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
XXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
5 PD1200646
SFMR‐RB
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for
XXXXXXXXXXXXX, AR20130000091 (PD201200646)
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 and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress
who have shown interest in this application have been notified of this decision by mail.
BY ORDER OF THE SECRETARY OF THE ARMY:
Encl
XXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
6 PD1200646
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