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AF | PDBR | CY2013 | PD-2013-02196

Original file (PD-2013-02196.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX CASE: PD-2013-02196
BRANCH OF SERVICE: Army BOARD DATE: 20150130

SEPARATION DATE: 20050813

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Network Switching Systems Operator) medically separated for lumbar back, feet, and bilateral knee pain. The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent P2L3 profile and referred for a Medical Evaluation Board (MEB). The “chronic uncomplicated low back pain,” “chronic bilateral foot pain,” and “bilateral knee pain,” and were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded three other conditions (“hypertension,” “hyperlipidemia,” and “insomnia”) as medically acceptable for PEB adjudication. The Informal PEB adjudicated “chronic subjective back pain, without significant neurologic abnormality” and “chronic pain bilateral feet and knees” as unfitting, rated 10% and 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) for the back condition and c iting application of the US Army Physical Disability Agency (USAPDA) pain policy for the feet and knee condition. Th e remaining conditions were determined to be not unfitting . The CI made no appeals and was medically separated.

CI CONTENTION: “When I was separated from the military on 13 August 2005, all test were done. But my other disabilities were not included on my medical separation orders, only 10% for my back.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON :

IPEB – Dated 20050519	VA* - (~5 Mos. Pre –Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Back Pain	5299-5237	10%	Low Back Strain	5237	10%	20050329
Chronic Pain Bilateral Feet and Knee	5099-5003	0%	Left Knee Strain	5260-5024	10%	20050329
			Right Knee Strain	5260-5024	10%	20050329
			Bilateral Plantar Fasciitis	5299-5276	0%	20050329
			Bilateral Pes Planus	5276	Not Service Connected
Hypertension	Not Unfitting	Hypertension	7101	0%	20050329
Hyperlipidemia	Not Unfitting	Hyperlipidemia	No VA Placement
Insomnia	Not Unfitting	Insomnia	No VA Placement
Other x 0 (Not In Scope)	Other x 3
RATING: 10%	RATING: 60%

* Derived from VA Rating Decision (VA RD ) dated 200 50912 (most proximate to date of separation ( DOS ) ) .

ANALYSIS SUMMARY: The PEB combined the bilateral knee and feet conditions under a single disability rating, coded analogously to 5003. 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 (IAW DoDI 6040.44) 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 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. To that end, the evidence for the bilateral knee and feet conditions are presented separately; with attendant recommendations regarding separate unfitness, and separate rating if indicated.

Chronic Back Pain Condition. The CI was first seen for low back pain (LBP) on 16 June 2000 after lifting some heavy boxes. He was treated conservatively with medications and light duty. He was next seen almost 2 years later on 20 March 2002 when he noted a day’s history of LBP which was attributed to having received an injection for the plantar fasciitis (below) the previous day. He was again managed conservatively. Lumbar spine X-rays on 18 January 2005 were normal. The narrative summary (NARSUM) was dated 1 February 2005. The examiner noted that the CI had passed the alternate fitness test (walking) and passed. The CI reported chronic LBP since 1996 which was aggravated by activity including lifting, sitting, bending, etc. Indications of non-organic pain were present and included positive give way, positive tailbone pain, and no interruption in his pain pattern in the past 10 years. On examination, the gait and station were normal and he appeared in no acute distress. The back was not tender and the neurological examination was normal. Three signs of non-organic pain were present. The range-of-motion (ROM) is charted below. At the MEB exam, the CI reported that he reinjured his back wearing protective gear while deployed. The examiner noted that the ROM was reduced. The X-rays were repeated on 29 March 2005 and were again normal other than transitional features (a congenital variation which might be associated with LBP). At the VA Compensation and Pension (C&P) examination performed on 29 March 2005, almost 5 months prior to separation, the CI reported constant LBP for the previous 9 years which was elicited by activity, but had not resulted in time lost from work. He was again noted to be in no acute distress with a normal posture and gait. The back was tender, but there was no spasm. The neurological examination was normal and motion was without pain. There was further limitation with repetition of movement due to pain, but the decrease was not documented.
Provocative testing for nerve root irritation was negative. 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.

Thoracolumbar ROM (Degrees)	PT ~5 Mo. Pre-Sep	VA C&P ~5 Mo. Pre-Sep
Flexion (90 Normal)	30	75
Combined (240)	100	200
Comment	Nml gait and neurological examination. Three signs of non-organic pain present. ROM limited by pain	Pain with repetition. Nml gait and neurological examination. No spasm.
§4.71a Rating	40%	10%

The Board directed its attention to its rating recommendation based on the above evidence. The PEB rated the back at 10% using an analogous code for lumbosacral strain, 5299-5237. The VA also rated the back at 10% using the 5237 code. The Board considered the evidence. While the ROM obtained by the MEB supports a 40% rating, the level of limitation measured is not consistent with the remainder of the examination which showed no tenderness, a normal gait and posture, normal neurological examination, and normal X-rays. The VA examination, which supports a 10% rating, has 75 degrees of flexion which is consistent with the pathology in evidence, the remainder of the examination that day, and the MEB examination. It is therefore assigned a higher probative value for rating purposes. Absent spasm, incapacitation, or ankylosis, the Board found no route to a higher rating. 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 back condition.

Chronic Pain Bilateral Feet and Knee Condition. The PEB combined the bilateral knee and feet conditions into a single unfitting condition. The Board considered if any or all of these joints were separately unfitting and, if so, the appropriate rating.

Chronic Bilateral Knee Condition. The CI was first seen for right knee pain in 1997 following physical training. He was treated with a profile and then not seen again until 2001 when he reported a several year history of right knee pain. On 22 August 2001, he was thought to have retro-patellar pain syndrome and treated conservatively. X-rays of both knees were normal other than metallic artifacts from an old gunshot wound in the right thigh from 1995 (off-duty, non-combat). A bone scan a week later was normal. He was evaluated in orthopedics and referred for physical therapy. The record then falls silent until 17 October 2004 when the CI reported bilateral knee pain secondary to the wear of heavy Kevlar gear while deployed. He was again treated conservatively and issued a profile to limit duty. Repeat X-rays of both knees on 18 January 2005 were unremarkable other than the metal in the soft tissue around the right knee and an ossified non-ossifying fibroma (an incidental finding of no clinical significance). At the NARSUM, the CI reported chronic knee pain since 1999 which was aggravated by activity. As noted above, his gait and posture were normal. The ROM is below. There were no signs of instability or meniscal (cartilage cushion inside the knee) damage. There was no tenderness (the examiner also recorded mild tenderness along the joint line of the knee), fluid in the joint (effusion), or pain with compression of the knee cap (patella). The patella tracked normally. The commander, on 7 February 2005, noted that the back, knee, and feet conditions impaired duty. At the MEB examination, decreased ROM was noted, but not detailed. The X-rays were again repeated on 29 March 2005 and were normal other than the metal in the right thigh near the knee. At the VA C&P examination, the CI reported a 7-year history of pain secondary to heavy lifting and running. He had not lost work due to the knee condition. On examination, his posture and gait were normal. There was no sign of abnormal weight bearing and he did not use an assistive device.
The examination of the knee was normal without signs of instability or meniscal irritation. The ROM was reduced and is charted below. The ROM evaluations in evidence are summarized in the chart below.

Knee ROM (Degrees)	PT ~5 Mo. Pre-Sep (20050318) p.28	VA C&P ~5 Mo. Pre-Sep (20050329) p.86
	Left	Right	Left	Right
Flexion (140 Normal)	120	115	120	120
Extension (0 Normal)	0	5	0	0
Comment	Nml gait	Nml gait	Nml gait; stopped at onset of pain	Nml gait; stopped at onset of pain
§4.71a Rating	#%	#%	#%	#%

The Board first considered the bilateral knee pain, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. Members agreed that although the functional limitations in evidence were minimal, the CI was profiled for the knee pain, the MEB found the condition as not meeting retention standards, and the commander noted that the knees impaired duty. Accordingly a separate rating is supported.

The Board directed its attention to its rating recommendation based on the above evidence. The X-rays and examinations, including the gait, for both the MEB and VA were normal other than the limitation in motion which was not compensable. The PEB assigned a 0% rating for the combined condition rating it analogously to degenerative arthritis, 5099-5003. The VA used a dual code, 5260-5024, limitation in flexion and tenosynovitis, to rate each knee at 10%, citing limitation in motion. However, the limitation in motion present on both examinations is non-compensable. The Board also considered the application of VASRD §4.59 (painful motion) but multiple X-rays, a bone scan, and physical examinations failed to show the presence of arthritis to support a 10% rating. The Board is left with bilateral knee pain with non-compensable loss of motion secondary to pain at the end of motion. It found no route to a rating higher than the 0% adjudicated by the PEB, either separately or combined as a bilateral condition.

Chronic Bilateral Feet Condition. The CI was first seen for bilateral foot pain in 1999 and treated for flat feet (pes planus). He was issued orthotics and seen sporadically over the next 18 months. In 2002, he was evaluated several more times and again treated conservatively. The record then falls silent until the CI was entered into the MEB process. At the NARSUM, the CI reported chronic knee pain since 1999. He had been issued a P3 profile, but continued on duty. The pain was daily and aggravated by activity. On examination, he had full ROM without tenderness and normal arches. The commander, on 7 February 2005, noted that the back, knee, and feet conditions impaired duty. At the MEB examination, only dermatitis was noted for the feet. No other abnormalities were recorded. The X-rays were again repeated on 29 March 2005 and were normal including weight bearing views (to assess the arches). At the VA C&P examination, the CI reported a 7-year history of pain and that he had not lost work due to the bilateral foot condition. He used arch supports. On examination, his posture and gait were normal. There was no sign of abnormal weight bearing and he did not use an assistive device. Tenderness of the plantar fascia was noted and pes planus was present (not supported on X-ray review). The foot alignment was normal.

The Board first considered the bilateral foot pain, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above. Members agreed that although the functional limitations in evidence were minimal, the CI was profiled for the foot pain, the MEB found the condition as not meeting retention standards, and the commander noted that the feet impaired duty. Accordingly a separate rating is supported.

The Board directed its attention to its rating recommendation based on the above evidence. The X-rays and examinations, including the gait, for both the MEB and VA were normal other than the tenderness on the VA examination. The PEB assigned a 0% rating for the combined condition rating it analogously to degenerative arthritis, 5099-5003. The VA used an analogous code, 5299-5276, pes planus, to rate each foot at 0%, citing limitation in motion, at the time of separation. However, a VA Board of Appeals, reviewing the same evidence, assigned a rating of 10%, retroactive to separation, without explaining the basis for the decision. Pes planus, coded 5276, was initially determined to be non-service-connected. The pes planus was later determined to be service-connected and awarded a 10% rating retroactive to separation by a Decision Review Officer on 9 July 2013. The basis for this decision is also not clear, but it appears that the VA may have used the same signs and symptoms, tender feet, for both ratings, a violation of VASRD §4.14, avoidance of pyramiding. The MEB NARSUM documented that the feet were non-tender and the arches normal, the latter also found on the X-rays in March 2005. The VA examiner documented tender plantar fascia, but also noted a normal gait and no abnormal wear of his shoes. The Board also noted that there were no clinical visits for the foot condition for almost 3 years and then only for the MEB evaluation. The Board determined that the code 5299-5276 best fit both foot conditions. With a normal gait, non-tender MEB examination (but tender VA examination), normal X-rays, and lack of abnormal wear from weight bearing, the Board found no route to a rating higher than the 0% adjudicated by the PEB, either separately or combined as a bilateral condition.

The Board observed that while the evidence supports a determination that both the knees and feet were separately unfitting and, therefore, ratable, a compensable rating is not supported for either condition. Accordingly, there is no advantage to the CI to recommend that these conditions be unbundled and the recommendation of the Board is no re-characterization of the bundled bilateral knee and feet conditions.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the contended not unfitting hypertension, hyperlipidemia, and insomnia conditions were not unfitting. The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. The hypertension and hyperlipidemia conditions were profiled, but a P2 was issued. They were not implicated in the commander’s statement and were not judged to fail retention standards. All were reviewed and considered by the Board. There was no performance based evidence from the record that any of these conditions 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 any of the contended conditions 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 the USAPDA pain policy for rating the bilateral knee and foot was operant in this case and the condition was adjudicated independently of that policy by this Board. In the matter of the back condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended knee and feet conditions, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended hypertension, hyperlipidemia, and condition, the Board unanimously agrees that it cannot recommend it for additional disability rating. There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION : The Board, therefore, recommends that there be no re - characterization of the CI’s disabil ity and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131105 w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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

invalid font number 31502 SUBJECT: Department of Defense Physical Disability Board invalid font number 31502 of Review Recommendation for XXXXXXXXXXXXXXXXXX invalid font number 31502 , AR20150008355 (PD201302196)
invalid font number 31502

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:

Enc invalid font number 31502 l                                                  XXXXXXXXXXXXXXXXXX invalid font number 31502
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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AF | PDBR | CY2013 | PD-2013-02196

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