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AF | PDBR | CY2012 | PD2012 01825
Original file (PD2012 01825.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1201825
BRANCH OF SERVICE: Army  BOARD DATE: 20140418
SEPARATION DATE: 20041011


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (42F20/Human Resources Information System Management Specialist) medically separated for neck pain with degenerative disc disease (DDD) and bilateral retropatellar pain syndrome (RPPS). He injured his neck in 2002, experiencing persistent radiating pain, diagnosed as (non-surgical) DDD. He also had a 2-year history of worsening bilateral knee pain diagnosed as RPPS. The conditions 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 U3/L3 profile and referred for a Medical Evaluation Board (MEB). The neck and knee conditions, characterized as “right cervical C5 radiculopathy” and “bilateral retropatellar pain syndrome,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified one other condition for PEB adjudication. The Informal PEB adjudicated the cervical spine and bilateral knee conditions as unfitting, rated 10% and 0% respectively, citing criteria of the VA Schedule for Rating Disabilities (VASRD); the remaining condition w as determined to be not unfitting . The CI made no appeals and was medically separated.


CI CONTENTION: “My conditions were much more severe than what the Army Medical Board reported when they said I was 10% disabled and they could not offer me medical retirement. The VA ended up giving me 20% for each knee, 30% for cervical degenerative disease and 0% for umbilical Hernia. All of these incidents were in the line of duty and they were not present before I entered the military on 29 August 2000. I believe I should be retired from the military as it wasn’t my decision because these injuries were caused in the military and was basically forced out of the military because of my medical condition from my 4 years of service. I was told I could never come back into the military because of my conditions. I received a severance pay when I was discharged which I had to pay all the way back from the VA.” After the original application, the CI forwarded a letter from his physician dated 27 January 2014, a personal statement and physician notes regarding work restrictions dated 22 February 2014 and 17 February 2014, respectively, and, a personal statement clarifying current medications dated 4 March 2014. These were reviewed by the Board and considered in its recommendations.


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 neck and bilateral knee conditions are addressed below. The referenced umbilical hernia condition was not identified for adjudication and is not eligible for Board consideration. That, and any other conditions or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service Admin IPEB – Dated 20040908
 VA (4 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Neck Pain with DDD 5299- 5237 10% Cervical DDD C3 through C7 5243-5242 30% 200 50204
Bilateral Retropatellar Pain Syndrome 5099-5003 0% Degenerative Disease, R Knee 5003-5260 20% 20050204
Partial Ligament Tear , L Knee 5299-5260 20% 20050204
Other x 1 (Not in Scope)
 Other x 1/Deferred x 1/NSC x 11 20050204
Combined: 10%
 Combined: 60%
Derived from VA Rating Decision (VA RD ) dated 200 50519 (most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Cervical Spine Condition. The onset of this condition was in June 2002 when a heavy box fell on the CI’s head. He suffered progressive cervical pain following that incident which included bilateral upper extremity radiation (right > left). There were no significant objective neurologic deficits associated with the latter and an electro-diagnostic study was normal. Magnetic resonance imaging (MRI) demonstrated DDD with some right foraminal (nerve canal) narrowing at C4/5. Surgery was not indicated and continued conservative management, including nerve root injection, was unsuccessful at relieving symptoms. Range-of-motion (ROM) evidence from outpatient MEB evaluations is charted below. There were no clinical entries over the course of treatment which commented on significant ROM impairment. The narrative summary (NARSUM) rated the neck pain “at moderate to constant,” noting “right radicular symptoms” without elaboration. The examiner documented overall limitations of prolonged sitting at a computer, running and various soldiering requirements but did not differentiate those attributable to the cervical vs. knee conditions. The physical exam noted tenderness and right- sided spasm and detailed normal neurological findings (strength 5/5 all upper extremity groups). The NARSUM ROM measurements are charted below. The VA Compensation and Pension (C&P) evaluation was performed 4 months post-separation and quoted “sharp pain” with bilateral upper extremity radiation and numbness (no comment regarding subjective weakness). Limitations were not specified. The VA physical exam documented normal spinal contour and the absence of spasm or tenderness. Neurological testing demonstrated 5/5 strength. The VA ROM measurements (identical in all planes to those recorded in the NARSUM), along with those referenced above, are summarized in the following chart.

Cervical ROM
 MEB Chiropractor
~9 Mo. Pre-Sep		 MEB Physiatrist
~7 Mo. Pre-Sep		 NARSUM
~4 Mo. Pre-Sep		 VA C&P
~4 Mo. Post-Sep
Flexion (45⁰ Normal)
 45⁰ ‘Within functional limits’ 30⁰ 30⁰
Combined (340⁰)
 340⁰ 215⁰ 215⁰
§4.71a Rating
 10%* 10% 20% 20%
                * Conceding §4.59 (painful motion).
The Board directs attention to its rating recommendation based on the above evidence. The PEB’s DA Form 199 specifically referenced flexion of 45 degrees and otherwise normal ROM in its decision, presumably conceding painful motion for the minimal compensable 10% rating. The only ROM evidence in available records which corroborates the PEB decision is that of the chiropractic evaluation charted above. The possibility that another evaluation demonstrating normal ROM is missing in evidence cannot be excluded. It was highly coincidental that ROM in all planes was exactly the same for both the NARSUM and VA C&P evaluations, which raised some probative value concerns (subjective duplication of pain threshold); but members agreed that chance coincidence should be the default assumption. Concerns were raised in deliberations regarding the disparity with ROM limitation surfacing in the context of the formal MEB and VA rating evaluations that were not evidenced previously nor explained by re-injury or expected clinical course and, that were challenged by two previous specialists. The fact remains, however, that 30 degrees flexion was documented in the highly probative NARSUM and C&P examinations, both of which were compliant with VASRD §4.46 (accurate measurement); 30 degrees flexion satisfies the VASRD §4.71a criteria for a 20% rating. After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), members agreed that a disability rating of 20% is fairly recommended for the cervical spine condition under code 5242 (degenerative arthritis of the spine).

The Board considered whether additional rating could be recommended under a peripheral nerve code for the associated radiculopathy in this case but there was no ratable deficit in evidence and no functional link to fitness. Although it was noted that radicular pain likely contributed to the CI’s difficulty with protracted typing (an MOS requirement), the pain component of a radiculopathy is subsumed under the general spine rating as specified in §4.71a. Members thus agreed (concordant with the VARD) that additional rating on this basis is not justified.

Bilateral Knee Condition. The first presentation for this condition in the service treatment record (STR) was in August 2003, when the CI reported a year of bilateral knee pain (left > right) aggravated by running and road marching. Bilateral MRI studies were obtained in October 2003. The left study suggested a partial tear of the anterior cruciate ligament (ACL) and the right demonstrated degenerative meniscal (cartilage) changes. The orthopedic reviewer did not firmly support the interpretation regarding the left ACL tear, did not note any instability on examination and did not recommend surgery. A provider entry during that period noted left knee pain with various motions, but “right knee only ‘sore’ if stands up for prolonged periods.” Nearly all outpatient entries in the STR documented left knee dominance of symptomatology, with several mentioning subjective instability and “giving way” of the left knee. No examinations reported findings of objective instability, however, nor were there any positive cartilage exam signs for either knee. Various STR entries confirmed a normal gait, with none to the contrary and, there were no observations regarding gross ROM limitations. Two orthopedic ROM evaluations during the MEB period recorded flexion of 140 degrees (normal) bilaterally. There was an L2 profile for bilateral RPPS in place until a permanent L3 profile (same diagnosis) was designated 5 months prior to separation. The commander’s performance statement did not differentiate functional limitations attributable to specific orthopedic conditions. The NARSUM (4 months prior to separation) noted a 2-year history of worsening bilateral knee pain (rated moderate and constant) diagnosed as RPPS, and aggravated by “running, kneeling, or extensive walking.” The physical exam (bilateral) noted patellar tenderness, no effusion, no signs of cartilage impingement, and no instability to stress testing in all planes. Bilateral flexion of 140 degrees was recorded. Neither the NARSUM nor any STR entries in this case specified painful motion.

The VA C&P evaluation (4 months post-separation) documented that the CI “complains of occasional swelling and stiffness in the knees.” There was an additional complaint that the knees “give away.” The examiner commented that attempts to clarify the latter resulted in “very vague” responses and inability to get a “straight answer,” and he clarified that there was no history of subluxation (joint slippage). Listed limitations were prolonged walking and prolonged sitting, with an additional note by the examiner that, “He is however able to go to the gym and peddle a bike for as long as one-half hour.” The VA physical exam noted a normal gait and normal knee joint findings; without effusion, signs of cartilage impingement, or instability. The ROM evaluation recorded left flexion to 90 degrees and right flexion to 110 degrees; but, for each knee documented onset of pain at 20 degrees and limitation of flexion to 20 degrees with repetitive motion. A probative entry from a VA rehabilitation specialist a month after the above C&P exam is also in evidence. This documented more acute symptoms on the left and the exam noted a normal gait, normal joint findings (no instability) and left flexion to 110 degrees/right to 125 degrees. The examiner concluded, “His pain levels and loss of function are reported as severe, however, he does not present in extreme distress and moves quite freely. He likely does have some degree of pain, but symptoms are certainly magnified.”

The Board directs attention to its recommendations based on the above evidence. The PEB’s 0% rating analogous to 5003 (degenerative arthritis) cited normal ROM but does not comport with the VASRD §4.71a specified 10% rating under 5003 for two or more major joints, the latter without regard to ROM limitation or other factors. The VARD for separate 20% ratings under 5260 (limitation of motion) conceded the reduction in ROM with repetition (DeLuca) as per the C&P examiner. Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. The Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” joint can be reasonably justified as separately unfitting in order to remain eligible for rating. If the members judge that separately ratable joints are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended. The Board thus first considered if each knee, after de-coupling from the combined PEB adjudication, remained separately unfitting. The profile, NARSUM, AR 40-501 retention decision, and resulting PEB adjudication addressed a “homogenous” bilateral condition without separate joint distinctions; but, the overall evidence makes clear that the left knee was associated with significantly more disability than the right one. The disparity was such that the question is raised of whether the right knee was reasonably justified as separately unfitting. When clinical entries addressed separate symptoms and functional impact, the acuity and limitations attributable solely to the right knee were relatively mild. Although clearly there was some combined effect influence on overall soldiering and MOS physical requirements, members agreed that there was insufficient performance-based evidence to support a conclusion that the functional impairment from the right knee would have itself precluded continued military service. After due deliberation in consideration of the totality of the evidence, the Board concluded that only the left knee could be reasonably justified as separately unfitting, and thus cannot recommend separate rating for the right knee.

Having so concluded, the Board turned to deliberation of the appropriate coding and rating recommendation for the unfitting left knee condition. Rating under the VA’s 5260 (ROM) code would require flexion ≤45 degrees to meet the 10% threshold and ≤30 degrees to meet the 20% threshold. Although the post-separation C&P ROM evidence in isolation, with concession to DeLuca considerations, would satisfy a 20% recommendation under code 5260, the probative value of that single evaluation is significantly mitigated by the conflicting service ROM evidence and the possibility of adverse subjective influence as per the VA rehab evidence (and collateral C&P comments). All members agreed that the service ROM evidence was therefore most probative to the Board’s recommendation. There is thus no probative evidence for ROM impairment, ligamentous laxity, frequent effusions or locking which would achieve a compensable rating under the available joint codes, barring application of VASRD §4.59 (painful motion) or §4.40 (functional loss) to achieve the minimum compensable rating of 10%. Although there was no directed evidence from the NARSUM or STR that painful motion was present, there was no directed evidence refuting its presence. Members agreed, furthermore, that the persistent functional limitations in evidence were difficult to reconcile with a 0% rating, and that §4.40 (functional loss) was supported to achieve the minimum rating of 10%. VASRD §4.40 states “a part which becomes painful on use must be regarded as seriously disabled,” and there is ample evidence that such was the case with this condition. After due deliberation, conceding reasonable doubt, the Board recommends a 10% rating for the left knee condition, proposing code 5099-5024 (tenosynovitis) for its clinical compatibility.


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. In the matter of the cervical spine condition, the Board unanimously recommends a disability rating of 20%, coded 5242 IAW VASRD §4.71a. In the matter of the service-combined bilateral knee condition, the Board unanimously recommends a rating of 10% for an unfitting left knee condition coded 5099-5024 IAW VASRD §4.71a; but, unanimously agrees the right knee condition was not separately unfitting and thereby not subject to disability rating. 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
Degenerative Disc Disease, Cervical Spine 5242 20%
Retropatellar Pain Syndrome, Left Knee 5099-5024 10%
Retropatellar Pain Syndrome, Right Knee Not Unfitting
COMBINED
 30%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20121009, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review



 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 XXXXXXXXXXXXXXXXXX , AR20140017523 (PD201201825)
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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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