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AF | PDBR | CY2013 | PD-2013-02760
Original file (PD-2013-02760.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02760
BRANCH OF SERVICE: Army          BOARD DATE: 20141105
SEPARATION DATE: 20071016


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (13B10/Cannon Crewmember), medically separated for lumbar degenerative disc disease 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 L3 profile and referred for a Medical Evaluation Board (MEB). The back and knee conditions, characterized as “chronic low back” and “bilateral knee pain”, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB forward no other condition for PEB adjudication. The Informal PEB (IPEB) adjudicated “lumbar degenerative disc disease (DDD) with chronic low back pain” and “bilateral knee pain” as unfitting, rated at 10% and 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy . The CI requested and was granted a Formal PEB (FPEB) which affirmed the IPEB findings and ratings. The CI made no further appeals and was medically separated.


CI CONTENTION: “I disagreed with the board back in 2007 because my back and left knee never got fixed, not even close to what I was before. I have a problem with both knees now, and take meds for migraines that started in Iraq and I take meds for head problems now. I still can’t live like I did before my tour. I still don’t have the same relationship with my family since before my trip to Iraq. I haven’t ran and played with my daughter or grandkids since before Iraq. My health has only got worse. The VA found me 70% and unemployable, so they retired me and I got my social security both on first try and without any representation, and not many people get them on the first try. If I sit in a bathtub than [sic] my wife has to help me out of the tub. My whole life and everything I do revolves around my back and knees. I don’t go to amusement parks with my family because of my back, knees, and mental problems. I still can’t handle crowds. My migraines are brought on by bright lights and high pitched tones. I went into debt by having a inground [sic] pool put in to try and help with my therapy. I only buy cars that have heated seats for my back. I have a chair in my shower to sit in to shower. I have a cain [sic] that I use to help with walking. My life has never been the same. Me and my family have paid the price for my getting hurt in Iraq for the last 7 years and this is something that will haunt me for the rest of my life. My daughter has never had her father to play with over the last 7 years or take her anywhere.”


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 back and knee conditions are addressed below. The neck condition, identified as not unfitting by the PEB, was not requested for review and thus is not within the Board’s defined scope. The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected back and knee conditions continue to burden him; 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 Veteran Affairs, operating under a different set of laws. The Board considers VA evidence proximate to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-months interval for special consideration to post-separation evidence. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. 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 Board for Correction of Military Records.


RATING COMPARISON :

Service FPEB – Dated 20070905
 VA - (3 Weeks Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Lumbar DDD w/Chronic LBP 5299-5242 10% DDD L-Spine 5242 40% 20071204
Bilateral Knee Pain 5099-5003 10% Arthralgia – Rt Knee 5299-5260 10% 20071204
Arthralgia – Lt Knee 5299-5260 10% 20071204
Other x 1 (Not in Scope)
 Other x 2 20071204
Combined: ##%
 Combined: 70%
Derived from VA Rating Decision (VA RD ) dated 200 80506 (most proximate to date of separation)


ANALYSIS SUMMARY: The Board may apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD rating guidelines. The Board must first determine if 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. 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.

Lumbar Degenerative Disc Disease. The narrative summary (NARSUM) notes that the CI initial injury occur during a deployment in May of 2006 while “was working out”. Notes in the service treatment records (STRs) indicated initial conservative treatment was unsuccessful. A magnetic resonance imaging of the lumbar spine showed mild disc bulging, but no frank disc herniation, spinal stenosis, or nerve impingement. The CI was medically evacuated for further evaluation and treatment. During a follow-up orthopedic evaluation dated 1 September 2006, the examiner noted spinal muscle spasms and a normal neurological evaluation. The CI was referred for both physical therapy and pain management evaluation. The CI treatment included the receipt of three epidural steroid injections (ESI) and two nerve blocks, which “improved the radiating pain to the lower extremities”, but failed to eliminate the back pain.

During the MEB examination dated 11 June 2007 (performed approximately 4 months prior to separation), the CI reported chronic low back pain (LBP). The MEB examiner noted tenderness of the spinal muscles, normal lower extremities strength, sensation, reflexes and contralateral straight leg raise testing, was positive for left leg pain. Back range-of-motion (ROM) was, a flexion of 48 degrees, with painful motion with all ROM and no muscle spasm noted. The MEB examiner further noted a pain rating of slight and constant. There were no incapacitating episodes due to the back condition documented in the available records.

At the VA Compensation and Pension (C&P) examination dated 4 December 2007 (performed approximately 2 months post separation), the CI reported chronic LBP with radiation to the knees bilaterally. The thoracolumbar (TL) spine was normal to inspection and without tenderness to palpation. Thoracolumbar ROM was a flexion of 45 degrees, with decrease to 40 degrees after 6 repetitions, without muscle spasms and combined TL ROM of 125 degrees. Straight leg raises caused “pain” bilaterally. Lower extremities reflexes were normal and decreased sensation was noted in the left lower extremities great toe and S1 nerve root distribution. Lumbosacral spinal X-ray images showed minimal osteoarthritic changes. Computed tomography scan of the lumbar spine obtained on 3 December 2007 (performed approximately 5 weeks after separation), noted non-surgical degenerative changes.

The Board directs attention to its rating recommendation based on the above evidence. The FPEB rated the LBP at 10%, coded 5299-5242 (analogous to spinal arthritis) and the VA rated it 40%, coded 5242, noting consideration of functional loss due to the start of painful motion at flexion of 15 degrees. The Board agreed that the evidence in record supports the 20% rating according to current VASRD spine rating rules in effect at the date of separation for TL flexion of “greater than 30 degrees but not greater than 60 degrees” and did not achieve the next higher evaluation of 40% for “TL flexion not greater than 30 degrees.” Additionally, there were no incapacitating episodes documented in the record for higher rating according to VASRD rating guidelines for intervertebral disc syndrome based on incapacitating episodes. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the lumbar DDD condition, coded 5299-5242.

The Board also considered if additional disability rating was justified for peripheral nerve impairment due to radiculopathy. The CI initially reported symptoms of back pain that radiated to the lower extremities, with sensory disturbances, but the symptoms were improved by the ESI injections. Lower extremities strength and reflexes were normal at both the MEB and VA C&P examinations; sensation was noted to be normal at the MEB exam, but the VA C&P examiner noted decreased sensation in the left lower extremities. Radiating pain from the back condition is subsumed under the General Spine Rating Criteria, which specifically states “with or without symptoms such as pain (whether or not it radiates).” Therefore the critical decision is whether or not there was a significant sensory deficit which would impact military occupation specific activities. There is no evidence in this case that the decreased sensation could be described as functionally impairing. The Board concluded therefore that this condition could not be recommended for additional disability rating.

Bilateral Knee Pain. The narrative summary (NARSUM) notes the CI reported knee pain since November 2005, due to repeated stair climbing. Bilateral knee X-rays images showed possible tendinitis, but were otherwise normal. Notes in the CI’s STRs indicated a diagnosis of patellofemoral syndrome that was made between November 2006 and December 2006. At the primary care visits the CI reported “popping” sensation in his knees with some activity. However, there were documentation of pain improvement with pool therapy and exercise. Treatment examinations noted only “knees showed abnormalities.”

At the MEB examination 11 June 2007 (performed approximately 4 months prior to separation), the CI reported intermittent bilateral knee pain. The MEB examiner noted bilateral knee ROM of flexion of 130 degrees (normal 0 degrees to 140 degrees), with crepitus and painful motion. Lower extremity strength, sensation and reflexes were normal. The CI’s gait was described as stiff, shuffling and wide based. The MEB examiner noted a pain rating of slight and constant.

An initial post separation outpatient VA treatment note dated 29 November 2007, indicated chronic bilateral knee pain, with crepitus noted on examination. At the VA Compensation and Pension (C&P) examination (performed approximately 7 weeks post-separation), the CI reported a history of discomfort in both knees aggravated by prolonged standing, walking, running, or stairs and treated with medications and soft knee braces. He reported pain, weakness and stiffness in both knees, swelling of the left knee with instability and giving way, but no locking or dislocations. The VA examiner noted “chronic patellar type pain at 4/10 with no medical doctor prescribed incapacitating episodes.” On examination, the knees ROMs were extension flexion of 0 degrees to 100 degrees on the right and 0 degrees to 90 degrees on the left with painful motion and no change in ROM after 6 repetitions. There was no abnormality noted of either knee, neither were there any reports of tenderness to palpation, instability, or any evidence of cartilage injury.

The Board directs attention to its rating recommendation based on the above evidence. The FPEB rated the bilateral knee pain at 10% citing the USAPDA pain policy as noted above. The VA rated the right/left knee at 10% each, both coded as 5299-5260 (analogous to limited leg flexion). The Board first reviewed to see if the either the right or left knee conditions remained reasonably justified as unfitting when separated from the PEB’s combined adjudication. The permanent profile and the commander’s statement both noted bilateral knee pain. All treatment notes in the STR addressed the two knees together and the MEB forwarded bilateral knee pain as not meeting retention standards.

The Board agreed that the evidence in record reasonably supports that each knee was unfitting at the time of separation and eligible for service disability rating. The Board considered the rating of the knees together because they were addressed together in all examinations with no significant rating differences between them. Neither the right nor the left knee condition met the threshold for rating based on flexion for ROM alone, specified as flexion limited to 60 degrees, but both knees did meet the 10% rating for painful leg flexion IAW VASRD §4.59 (painful motion). There was no evidence in record of right or left knee instability, semilunar cartilage injury, tibia/fibula impairment or limited extension to provide additional or higher rating of either knee. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.59, the Board recommends a disability rating of 10% each for the right and left knee condition, coded as 5299-5260.


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 condition was operant in this case and the condition was adjudicated independently of that policy. In the matter of the lumbar DDD condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5242 IAW VASRD §4.71a. In the matter of the bilateral knee condition, the Board unanimously recommends a disability rating as follows: an unfitting right knee condition and an unfitting left knee condition, each rated at 10%, both coded 5299-5260 IAW VASRD §4.71a. 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 re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Lumbar Degenerative Disc Disease 5299-5242 20%
Right Knee Pain 5299-5260 10%
Left Knee Pain 5299-5260 10%
COMBINED (w/ BLF)
 40%








The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131223, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record








                 
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX , AR20150006488 (PD201302760)
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 40% 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 40% 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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)
                                                     
CF:
( ) DoD PDBR
( ) DVA

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