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AF | PDBR | CY2012 | PD2012 00793
Original file (PD2012 00793.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXXX       CASE: PD1200793
BRANCH OF SERVICE: army  BOARD DATE: 20131203
SEPARATION DATE: 20020105


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92R1P/Parachute Rigger) medically separated for back, knee and ankle conditions. She was an airborne parachute accident in April 2000 where she suffered a lower back compression and left ankle fractures; both injuries required surgical intervention. Due to the accident, she later reported bilateral knee pain and symptoms of depression. She was referred to physical therapy and behavioral health but did not respond adequately to meet the physical requirements of her Military Occupational Specialty (MOS). She was issued a permanent L4/S3 profile and referred for a Medical Evaluation Board (MEB). Low thoracic/high lumbar area pain, ankle pain, knee pain and depressive disorder were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated the low back, knee and left ankle pain conditions as unfitting, rated 20% combined, with like ly a pplication of AR 635.40 (B.24 f.). The depressive disorder condition w as determined to be not unfitting. The CI originally non-concurred with the IPEB, requesting a Formal PEB; however, she subsequently agreed with the IPEB’s findings and was medically separated.


CI CONTENTION: The CI writes: “There is sufficient support that would justify and increase to at least a 30% Final Disability rating from the military, as the total rating from the VA was 90%. The compression fractures of the spine, alone was a 50% rating, along with other injuries (Left ankle and Right Knee) that occurred on the same day. I think a thorough review of my medical records will indicate the enduring pain and problems I live through as a result of my injury.”


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 ratings for the unfitting low back, bilateral knee and left ankle pain are addressed below. The not unfitting depressive disorder was contended; and, therefore within the DoDI 6040.44 defined purview of the Board. Any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected conditions continue to burden her; but, must emphasize that the Disability Evaluation System 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, operating under a different set of laws.


RATING COMPARISON :

Service IPEB (Admin Correction)
 – Dated 20011004
 VA* - (2.5 Mos. Pre-Separation to 6.4 Mos Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Low Back, Knee and Left Ankle Pain 5099-5003 20% S/P Compression Fx L1 & L2... 5285-5292 50%* 20020716
Right Knee Patellofemoral Syn 5257 10%* 20020716
Left Knee Patellofemoral Syn 5257 0%* 20020716
P/O Residuals...Fx Left Ankle 5271 10%* 20020716
Depressive Disorder Not Unfitting Major Depressive Disorder 9434 10% 20011102
No Additional MEB/PEB Entries
 Other x 2 20011022
Combined: 20%
 Combined: 70%
* Derived from VA Rating Decision (VA RD ) dated 200 21105 (most proximate to date of separation ).
**No change to ratings derived from subsequent C&P exam.


ANALYSIS SUMMARY: The PEB adjudicated the low back, bilateral knee and left ankle as the single unfitting and solely rated condition, coded analogously to 5003. Although this approach complies with 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 Veterans Affairs Schedule for Rating Disabilities (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 must 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.

Low Back (Thoracic and Lumbar) Pain. In April 2000, the CI sustained compression fractures of the lumbar spine at the L1-L2 level. She was treated with a back brace for 9 months and extensive physical therapy. A physical therapy note, 5 months after the injury, documented full active range-of-motion (ROM) in all planes and pain with flexion. The CI continued to report back pain not responding to conservative therapy. At the narrative summary (NARSUM) examination performed approximately 8 months prior to separation, the CI reported constant, sharp, burning back pain with an intensity rating of 5 on a scale of 1 to 10. She reported sleep disturbance due to the pain and intermittent pain in the gluteal region and posterior leg with prolonged sitting and standing. The pain decreased with rest and was occasionally relieved by MS Contin (controlled-release morphine). The NARSUM physical examination documented thoracic (mid-back) and lumbar (lower back) pain with extension, thoracic pain with flexion to 30 degrees, increased lower back pain with movement of the hips towards the center of the body (internal rotation), left greater than right paraspinous thoracic and lumbar muscle tenderness to palpation and thoracic muscle spasms.

At the VA Compensation and Pension (C&P) general examination completed approximately 2 months prior to separation, the CI reported persistent back pain resulting in an inability to bend, move around easily, run or jump. The physical examination demonstrated decreased lumbar motion in all planes and flexion limited to 35 degrees (normal 90 degrees). There was no evidence of pain, lack of endurance or incoordination. Radiographic evaluation of the thoracic spine was negative. Radiographic evaluation of the lumbar spine revealed an old compression fracture at L2 with approximately 25 percent loss of vertebral body height and mild left curving “scoliosis presumably on the basis of injury.”

At the C&P orthopedic examination performed approximately 6 months after separation, the CI reported constant lower greater than mid back pain. The pain was aggravated by housework and sitting for greater than an hour. The physical examination noted painful on motion of the thoracic and lumbar spine (flexion to 60 degrees and extension to 25 degrees).

The Board directs attention to its rating recommendation based on the above evidence. The 2002 VASRD coding and rating standards for the spine, which must be applied to the Board’s recommendation IAW DoDI 6040.44, differ significantly from the current §4.71a general rating formula for the spine. The applicable coding options for this case are excerpted below.

5285 Vertebra, fracture of, residuals:
 - With cord involvement, bedridden, or requiring long leg braces          100
Consider special monthly compensation; with lesser
involvements rate for limited motion, nerve paralysis.
 - Without cord involvement; abnormal mobility requiring neck      60
brace (jury mast)............................................
 - In other cases rate in accordance with definite limited motion
or muscle spasm, adding 10 percent for demonstrable deformity
of vertebral body.

5291 Spine, limitation of motion of, dorsal (Thoracic) :
Severe........................................................            10
Moderate......................................................            10
Slight........................................................            0
5292 Spine, limitation of motion of, lumbar
Severe .............................................................................................................................     40
Moderate ..........................................................................................................................      20
Slight .................................................................................................................................         10

 5295 Lumbosacral strain:
- 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

The PEB combined the low back, bilateral knee and left ankle conditions under a single disability rating, coded analogously to 5003 with a disability rating of 20% with likely application of AR 635.40, B24f. The Board first considered if back pain condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The Board considered the nature of the injury, radiographic evidence of persistent vertebral body pathology, and multiple service/VA entries documenting objective findings of pain and mechanical limitation of motion. Members agreed that the functional limitations in evidence justified the conclusion that the back pain condition was integral to the CI’s inability to perform her MOS; was separately unfitting; and, accordingly a separate rating is recommended. The Board deliberated VASRD codes 5292 (limitation of motion, lumbar spine), 5293 (lumbosacral strain), and 5285 (vertebra, fracture of, residuals). There was no evidence of spinal cord involvement or abnormal mobility of the neck requiring a neck brace for a rating under VASRD code 5285. Members agreed that rating the vertebral fracture residuals, loss of vertebral body height, greater than 50% reduction in normal lumbar motion and chronic pain most closely approximated the criteria for VASRD code 5292 with application of VASRD §4.7 (the higher of two evaluations). Members agreed that a greater than 50% reduction in normal ROM, as evidenced by the NARSUM and VA examinations, reflects severe limitation of motion for a 40% disability rating and that the radiographic evidence of demonstrable vertebral body deformity allows for the addition of 10% to the overall rating. Although the VASRD allows for separate rating of the thoracic and lumbar spine, the Board determined that the thoracic spine pain in the absence of thoracic ROM limitation would constitute pyramiding in violation of VASRD §4.14 (avoidance of pyramiding). After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 50% for the lower back condition.

Bilateral Knee Pain. The CI developed bilateral knee pain right greater than left while using crutches in 2000 after a parachute landing fall. Radiographic evaluation of the knees revealed a small right non-articular lateral tibial plateau fracture. The fracture was treated conservatively. At the NARSUM examination conducted approximately 8 months prior to separation, the CI reported right greater than left “soreness and achiness with increased humidity more than with cold weather.” Her symptoms improved with warmer, dryer weather. The physical examination demonstrated mild decrease in knee flexion bilaterally without evidence of swelling, instability or tenderness to palpation. At the C&P general examination performed approximately 2 months prior to separation; the CI reported a history of bilateral knee pain subsequent to her April 2000 injury. She reported that her knee pain was treated conservatively with bracing and anti-inflammatory medications. The physical examination demonstrated normal knee examinations except for crepitation (palpable grinding with motion). Radiographic evaluations of both knees were normal with fractures or other bony abnormalities.

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.

Bilateral Knee ROM
 (Degrees)
 VA C&P 2.5 Mo. P re- S ep NARSUM 8.4 Mo. Pre-Sep VA C&P 6.4 Mo. Post-Sep
Left Right Left Right Left Right
Flexion (140 Normal)
 140 140 120 120 # 135 135
Extension (0 Normal)
 0 0 0 0 0 0
Comment
 Normal in outline and symmetric in form and function; No heat, redness, tenderness, effusion, muscle atrophy; Normal limits for sensory perception, DTR; Drawer and McMurray negative; FROM without restriction or pain ; X-ray: normal findings Normal gait with no muscular atrophy; Jt lines generally not TTP; Stable; Patellofemoral articulations asymptomatic w/ compression and scrub; Mobility symmetric at patellofemoral articulations; No J-sign or deformity DTR 2; SRL 90; Normal sensation with pinwheel; Lateral back of calf and dorsum of foot normal; Strength: extensor hallus longus 5/5 and antero-lateral group 5; calf maximum circumference 37 cm; No: instability, effusion, scares ; X-ray : lateral tilt to patella;
Crepitation click Squat full with right hand on chair to recover and right knee popping sound; Crepitation moderate
No TTP in lateral joint line ; X-ray: none X-ray: Healing avulsion fx w/ no other abnormalities & no DJD
§4.71a Rating
 Not compensable Not compensable 10 % 10 % 0 % 10 % for crepitus
IAW §4.59 (Painful motion)
The Board directs attention to its rating recommendation based on the above evidence. The PEB combined the low back, bilateral knee and left ankle conditions under a single disability rating, coded analogously to 5003 with a disability rating of 20% with likely application of AR 635.40, B24f. The Board first considered if bilateral knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The CI’s knees were not profiled and were not implicated in the commander’s statement. Both the NARSUM and VA examinations demonstrated stable, nontender knees with normal to mildly decreased ROM. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that the bilateral knee condition was not separately unfitting and could not be recommended for a disability rating.
Left Ankle Pain. In April 2000, the CI sustained a left ankle fracture. She underwent surgical repair and physical therapy for rehabilitation. At the NARSUM examination completed approximately 8 months prior to separation; the CI reported left ankle swelling by the end of the day with occasional soreness and pain. She reported pain of 3-4 on a scale of 1 to 10. She reported that her walking was limited to less than 30 minutes and her running to less than 100 yards due to her ankle pain. The physical examination demonstrated normal gait and mild tenderness to palpation in the area of the surgical scar. There was no instability, swelling or strength deficit. At the C&P general examination completed approximately 2 months prior to separation, the examiner noted well-healed surgical scars with a “reduction in range of motion due to ankylosis” and unsteadiness with one leg stance. Radiographic evaluation demonstrated two screws in good position and a healed fracture with no significant post procedural complication.

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.

Left Ankle ROM
(Degrees)
 VA C&P 2.5 Mo. P re- S ep
NARSUM 8.4 Mo. Pre-Sep
 		VA C&P 6.4 Mo. Post-Sep
Dorsiflexion (20 Normal)
 10 15 10
Plantar Flexion (45)
 30 60 60
Comment
§4.71a Rating
 10 % (§4. 40 ) 10 % (4. 40 ) 10 %

The Board directs attention to its rating recommendation based on the above evidence. The PEB combined the low back, bilateral knee and left ankle conditions under a single disability rating, coded analogously to 5003 with a disability rating of 20% with likely application of AR 635.40, B24f. The Board first considered if left ankle condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above. The left ankle was permanently profiled and was implicated in the commander’s statement. The service treatment records evidenced retained hardware, consistent documentation of mild tenderness to palpation at the surgical site and functional impairment with use. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), members agreed that the functional limitations in evidence justified the conclusion that the left ankle condition was integral to the CI’s inability to perform her MOS; was separately unfitting; and, accordingly recommends a disability rating of 10% coded 5099-5003 for the left ankle condition, IAW VASRD §4.40, functional loss.

Contended PEB Conditions. In September 2000, the CI began experiencing depressive symptoms of low mood, insomnia, loss of usual interests, low energy, impaired concentration and passive suicidal ideations after a parachute accident. She was diagnosed with major depressive disorder (MDD) due to chronic pain. She was placed on Effexor XR for mood stabilization. During a psychiatric NARSUM evaluation conducted 8 months prior to separation, the psychiatrist opined that there was definite impairment which would require continued psychiatric care and medication; however, the depression in and of itself did not render her medically unacceptable for continued military service. At the C&P mental health examination performed approximately 2 months prior to separation, the CI reported increasing depression due to feelings of worthlessness, low energy, poor concentration, sleep disturbance and constant passive suicidal thoughts. The examiner noted that the CI was pleasant and cooperative. Her mood was depressed and affect restricted. She was not judged an acute risk and showed good insight and judgment into her problems. The examiner diagnosed MDD of moderate intensity and assigned a Global Assessment of Functioning of 50.

The Board’s main charge is to assess the fairness of the PEB’s determination that depressive disorder 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. Although the depressive disorder received and S3 permanent profile and was mentioned as a diagnosis in the commander’s statement, it was not judged to fail retention standards. All evidence was reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that the depressive disorder 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 depressive disorder condition and so no additional disability ratings are 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 AR 635.40 B.24 f. for adjudicating and rating the low back, knee and left ankle conditions was operant in this case and these conditions were adjudicated independently of that policy by the Board. In the matter of the low back condition, the Board determined that it was separately unfitting and unanimously recommends a disability rating of 50%, coded 5285-5292, IAW VASRD §4.71a. In the matter of the left ankle condition the Board determined that it was separately unfitting and unanimously recommends a disability rating of 10%, coded 5099-5003, IAW VASRD §4.40 and §4.71a. In the matter of the bilateral ankle condition, the Board determined that it was not separately unfitting and unanimously agrees that it cannot recommend it for additional disability rating. In the matter of the contended depressive disorder condition, 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 her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Low Back 5285-5292 50%
Left Ankle 5099-5003 10%
COMBINED
60%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120604, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




        
XXXXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review


SFMR-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 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20140004254 (PD201200793)


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 60% 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 60% 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                                                  XXXXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)


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