RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW
SEPARATION DATE: 20020716
NAME: XXXXXXXXXXXX BRANCH OF SERVICE: ARMY
CASE NUMBER: PD1200934
BOARD DATE: 20130109
SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this
covered individual (CI) was an active duty SGT/E‐5 (91D20/Operating Room Specialist),
medically separated for left knee and lower leg pain. The condition began following mid‐shaft
fractures of the tibia and fibula due to a fall while rappelling in 1997. After intramedullary
nailing, the fractures healed but he experienced increasing knee pain. Despite conservative
therapy, the CI could not be adequately rehabilitated to meet the physical requirements of his
Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a
permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded
left knee pain status post (s/p) left tibia intramedullary nail procedure and left tibia fracture to
the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40‐501. A low back pain
(LBP) condition was also identified and forwarded by the MEB. The PEB adjudicated the left
knee and lower leg pain condition as one unfitting condition, rated 10% with application of the
US Army Physical Disability Agency (USAPDA) pain policy. The LBP condition was determined to
be not unfitting and therefore not ratable. The CI made no appeals, and was medically
separated with a 10% disability rating.
CI CONTENTION: “The Medical Evaluation Board, as noted on DA 3947, listed left knee pain,
left tibia fracture, and low back pain as findings which warrant referral to a Physical Evaluation
Board. After reading DA 199, the Physical Evaluation Board gave a rating for the left knee pain,
but gave no rating for the tibia fracture or the low back pain. I feel that these two items, which
were not rated, are just as significant as the knee pain. Additionally, I feel as if the knee pain
and back pain should have been given a higher rating, because there are times when the pain is
completely debilitating. Also, the findings of the VA medical examination show that the back
pain is a result of lumbar spondylosis with multilevel degenerative disc narrowing.”
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 left knee pain, left tibia fracture and
LBP conditions, as requested for consideration, meet the criteria prescribed in DoDI 6040.44 for
Board purview; and, are addressed below. 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 20020312
VA (13 Mos. Post‐Separation) – All Effective Date 20020717
Condition
Code
Rating
Left Knee and Lower Leg
Pain
5099‐5003
10%
Low Back Pain
Not Unfitting
Condition
S/P Fx Lt Tibia/Fibula
Intramedullary Nailing w/
Muscular Deformity to Incl
Osteoarthritis Lt Knee
Shortening Lt Lower Extremity
Assoc w/ S/P Fx Lt Tibia/Fibula
Intramedullary Nailing w/
Muscular Deformity to Incl
Osteoarthritis Lt Knee
Lumbar Spondylosis w/ Multi‐
level Degenerative Disc
Narrowing
Code
Rating
Exam
5010‐5260
10%
20030819
5275
0%
20030819
5243‐5237
10%*
20030819
↓No Addi(cid:415)onal MEB/PEB Entries↓
0% X 4 / Not Service‐Connected x 1
20030819
Combined: 10%
Combined: 20%
*VA decision 20081021 increased to 40% based on later exam, effective 20080929; combined 50%
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 wishes to clarify that it is subject to the same laws for 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 utilizes DVA 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 6044.40, however, resides in evaluating the fairness of DES fitness determinations and
rating decisions for disability at the time of separation. Post‐separation evidence therefore is
probative only to the extent that it reasonably reflects the disability and fitness implications at
the time of separation. The Board further acknowledges the CI’s contention for ratings for
other conditions documented at the time of separation, and notes that its recommendations in
that regard must comply with the same governance. 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 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 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.
Left Knee and Lower Leg Pain Condition. The PEB combined left knee pain and lower leg pain as
the single unfitting and solely rated condition, coded 5099‐5003. Although this approach
complies with the USAPDA pain policy and AR 635.40 (B.24 f.), the Board must apply separate
codes and ratings in its recommendations, if compensable ratings for each condition 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. Not uncommonly this approach by the PEB reflects its
judgment that the constellation of conditions was unfitting, and that there was no need for
separate fitness adjudications, not a judgment that each condition was independently unfitting.
Thus the Board may exercise the prerogative of separate fitness recommendations in this
circumstance, with the caveat that its recommendations may not produce a lower combined
rating than that of the PEB.
2 PD1200934
There were two 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.
Left Knee ROM
Flexion (140⁰ Normal)
Extension (0⁰ Normal)
NARSUM ~6 Mo. Pre‐Sep
VA C&P ~13 Mo. Post‐Sep
120⁰
0⁰
140⁰
0⁰
Comment
Tenderness; mild crepitus
Painful motion
§4.71a Rating
10%
10%
The narrative summary (NARSUM) examiner reported that the left tibia fracture healed
approximately one centimeter (approximately 0.4 inches) short. Severe left knee pain was
exacerbated by running, rucking, walking and prolonged standing. Examination revealed well
healed surgical scars of the medial aspect of the knee and medial aspect of the proximal ankle.
There was mild tenderness of the mid‐tibia at the site of significant callus formation.
Tenderness of the lateral knee joint line and significant tenderness of the infrapatellar tendon
and the entry site for the tibial nail were also present. Tests for knee instability were negative.
At the MEB exam, 6 months prior to separation, the CI documented that he could not run or
stand for long periods of time due to knee pain. The MEB physical exam noted mild tenderness
over the area of callus formation of the tibia as well as knee tenderness. Light touch sensation
below the patella was mildly decreased. The commander’s statement indicated that knee pain
was the chief complaint, and interfered with his MOS duties and PT. At the VA Compensation
and Pension (C&P) exam performed 13 months after separation, the CI reported left knee and
anterior left leg pain exacerbated by standing, walking or intense physical activity. Symptoms
were intermittent as often as 3‐4 times per week lasting for several hours. Physical
examination revealed a normal gait. Leg length was one centimeter shorter on the left. A mild
muscle bulge was noted on the left anterior leg. Examination of the left tibial and fibula was
considered normal. There were no findings of knee instability or meniscal pathology. X‐rays
showed healed fracture with good position of the intramedullary rod. Minimal arthritic
changes of the knee were noted. Muscle strength and deep tendon reflexes were normal.
The Board directs attention to its rating recommendation based on the above evidence. First
the Board considered if the unfitting condition as described by the PEB should be unbundled.
Knee pain appeared to be related, at least in part, to the presence of surgical hardware used to
treat the tibia fracture, while leg pain was due to the presence of a healed tibial fracture. In
this deliberation, it was noted that the VA assigned a separate 0% rating for a leg length
discrepancy of one centimeter (5275 code). Board members agreed however that leg length
discrepancy was not an unfitting condition and therefore this pathway provided no additional
benefit to the CI. The only other code encompassing leg pathology under §4.71a (5262; Tibia
and fibula, impairment of) also incorporates a knee rating. Thus there is no useful avenue to
unbundling under §4.71a. Consideration was finally given to application of a muscle code.
Board members agreed however that such an approach in this case is poorly supported by the
clinical pathology and the applicable rating guidelines under §4.56. The Board therefore
concluded that unbundling the left knee and leg condition was not appropriate in this case. The
PEB and the VA assigned ratings under an analogous 5003 code (degenerative arthritis) and a
5010‐5260 (traumatic arthritis, limitation of flexion). The respective 10% ratings were
appropriate for an arthritic knee with non‐compensable limitation of motion, and were also
supported by §4.40 (functional loss) and §4.59 (painful motion). The Board debated a higher
rating under the 5262 code, but agreed the “slight” descriptor most accurately depicted the
clinical condition. Therefore a 10% rating was justified under this code. 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 left knee and lower leg pain condition.
3 PD1200934
Contended PEB Conditions. The contended condition adjudicated as not unfitting by the PEB
was LBP. The Board’s first charge with respect to this condition is an assessment of the
appropriateness of the PEB’s fitness adjudication. 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.
This condition was not profiled and was not implicated in the commander’s statement. It was
reviewed by the action officer and considered by the Board. There was no indication from the
record that this condition 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
LBP condition; and, therefore, no additional 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 the USAPDA pain policy for rating left knee and lower leg pain was operant in this
case and the condition was adjudicated independently of that policy by the Board. In the
matter of the left knee and lower leg pain condition and IAW VASRD §4.71a, the Board
unanimously recommends no change in the PEB adjudication. In the matter of the contended
LBP condition, the Board unanimously recommends no change from the PEB determination as
not unfitting. 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
COMBINED
10%
10%
Left Knee and Lower Leg Pain
UNFITTING CONDITION
The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20120622, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
XXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review
4 PD1200934
SFMR‐RB
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD‐ZB / XXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202‐3557
SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for
XXXXXXXXXXXXXX, AR20130000738 (PD201200934)
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
XXXXXXXXXXXXX
Deputy Assistant Secretary
(Army Review Boards)
CF:
( ) DoD PDBR
( ) DVA
5 PD1200934
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