RECORD OF PROCEEDINGS 
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX		BRANCH OF SERVICE: ARMY
CASE NUMBER:  PD0900183		BOARD DATE: 20100408
SEPARATION DATE: 20080324
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SUMMARY OF CASE:  This covered individual (CI) was an active duty SSG/Air Traffic Controller medically separated from the Army in 2008 after 10 years of active duty (22 years combined service).  The medical basis for the separation was a bilateral knee condition.  He developed an onset of left knee pain with running in 2002.  In 2003 he underwent an arthroscopic partial menisectomy of that knee with marginal improvement.  A Magnetic Resonance Imaging (MRI) of the left knee in 2007 demonstrated further meniscal injury, which was managed conservatively.  He developed right knee pain in 2006 and an MRI demonstrated a meniscal tear and patellar chondromalacia.  He underwent arthroscopic menisectomy of that joint in 2007.  He was unable to resume full military occupational specialty (MOS) duties or participate in the Army Physical Fitness Test (APFT).  Additional surgical options were deferred since restoration to full duty was not anticipated.  He was issued a permanent L3 profile and underwent a Military Evaluation Board (MEB).  The knee conditions were forwarded to the Physical Evaluation Board (PEB) as separately designated left knee pain, left knee patellofemoral arthrosis and right knee pain.  All were deemed medically unacceptable IAW AR 40-501.  An additional left elbow condition was identified by the MEB and forwarded as medically acceptable.  Additional conditions supported in the Disability Evaluation System (DES) packet are discussed below, but were not forwarded for PEB adjudication on the DA Form 3947.  The PEB combined the knee diagnoses as a single unfitting condition, although it documented separate 10% ratings and application of the bilateral factor to achieve a 20% rating for bilateral knee pain.  The left elbow condition was adjudicated as not unfitting.  The CI was thus medically separated with a 20% disability rating.
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CI CONTENTION:  The CI states: ‘I was awarded 20% total by the ARMY by the time I got my Medical Board, to include my elbows; but my supervisors at the WTU told me NOT TO fight for more, to avoid "Rating Degrading" ... Another issue is my depression and possible PTSD after events what happened in Afghanistan, but never realized I've had those conditions after returning from the War Zone.’  He notes his other VA-rated conditions on the application, but does not specifically contend for service ratings for them.  For the record, his application contained documentation of a 12 year period of ARNG service 1987 - 1998 not reflected on his DD-214 which documents only his active duty service 1998 - 2008.
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RATING COMPARISON:

Service PEB – Dated 20080328	VA (~6 Mo. after Separation) – All Effective 20080324	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain…	5259	20%	Residuals…Left Knee	5260	10%	20080915	
			Residuals…Right Knee	5260	10%	20080915	
Left Elbow Pain	Not Unfitting	Left Elbow Strain	5206	10%	20080915	
↓No Additional DA Form 3947 Entries.↓	OSA	6847	50%	20080915	
	Right Elbow Strain	5206	10%	20080915	
	Left Ankle Strain	5271	10%	20080915	
	DJD, Lumbar Spine	5010-5242	10%	20080915	
	Depressive Disorder, NOS	9411	10%	20081115	
TOTAL Combined:  20%	TOTAL Combined (Includes Non-PEB Conditions): 80%                                                                          	
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ANALYSIS SUMMARY:

Knee Conditions.  Neither the goniometric exam performed by the MEB nor the one by the VA rating examiner reflected any compensable range of motion (ROM) impairment for either knee.  Flexion was 128° for the right knee and 120° for the left knee per the MEB exam and 118° right/125° left per the VA measurements.  The MEB orthopedist documented the absence of instability and negative cartilage signs for both knees.  The VA exam commented on neither and thus was of lower probative value than the MEB examination.  Both examiners documented an antalgic gait, the narrative summary (NARSUM) noting the use of a cane.  Neither the NARSUM, VA rating examination nor other clinical entries documented the presence of locking or recurrent effusions.  The PEB’s coding and rating approach was somewhat odd since the knees were combined as bilateral knee pain coded 5259 (symptomatic post-menisectomy) which is a unilateral code.  As noted in the summary, however, the PEB de facto provided separate 10% ratings.  The PEB had initially combined the knees under the analogous 5003 code with application of the US Army Physical Disability Agency (USAPDA) pain policy for arriving at a single rating of 10%.  This was administratively corrected to the definitive adjudication under discussion.  The operant adjudication was therefore not influenced by any service regulation or policy.  The VA defaulted to the 5260 code for each knee, acknowledging the absence of compensable ROM impairment but appropriately applying painful motion to achieve separate 10% ratings.  Consistent with the evidence elaborated above, there is no basis for any dual rating approach or a rating higher than 10% under any applicable Veterans Administration Schedule for Rating Disabilities (VASRD) code for either joint.  To maintain compliance with VASRD §4.71a as per DoDI 6040.44, the Board recommends modification of the separation rating determination to reflect distinct 5259 coding and 10% rating designations for each knee.  Barring this distinction, there is not reasonable doubt in the CI’s favor supporting recharacterization of the PEB adjudication for the knee conditions.

Left Elbow Condition.  There are conflicting histories regarding this condition as related in the NARSUM and the VA rating examination.  The NARSUM describes the insidious onset of left posterior elbow pain four months prior.  The VA examination describes the onset of bilateral elbow pain with weight lifting in 2006, making no distinction between the joints.  This notwithstanding, the left elbow was 1) determined to be within AR 40-501 standards by the MEB orthopedist, 2) not profiled, 3) not noted in the Commander’s statement, 4) not under active treatment during the MEB period, and 5) specifically considered and adjudicated as not unfitting by the PEB.  The Board, therefore, has no basis on which to recommend that the left elbow be rated as unfitting at separation.

Depression/Post-Traumatic Stress Disorder (PTSD).  The CI implies in his application that his psychiatric disorder should have been rated for service disability.  At the post-separation VA evaluation he made a claim for PTSD based on a 2005/2006 Operation Enduring Freedom (OEF) deployment to Afghanistan.  He did not meet criteria for a PTSD diagnosis by the VA at that time, but did receive a 30% rating for depression.  He subsequently was diagnosed with PTSD by the VA (rated 70%), which was made retroactively effective to separation.  This decision, however, was based on an examination performed 16 months after separation.  The post-separation VA rating decision stated, ‘Service treatment records did not show treatment prior to discharge; however, within 10 days of discharge you began receiving treatment for depression with your report of symptoms over the prior year.’  The CI was not diagnosed with a mental health disorder prior to separation.  No psychiatric symptoms were reported on the MEB physical or mentioned in the NARSUM.  There was no psychiatric profile or any mention of mental impairment in the Commander’s statement.  The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.  PTSD and/or depression remains eligible for Army Board for Correction for Military Records (ABCMR) consideration.  

Other Conditions.  The MEB physical included a complaint of sleep impairment and a planned sleep study by the examiner.  The CI was in fact diagnosed with obstructive sleep apnea (OSA) by a sleep study five months prior to separation.  He received a 50% rating for the condition by the VA.  There is no documentation in the service treatment records of any follow-up with the pulmonologist or active symptoms referable to OSA which could be related to fitness.  The condition was not profiled or noted in the Commander’s statement.  The Board’s jurisdiction for making a recommendation regarding this condition (as per the PTSD discussion) is dubious as it was only tangentially documented in the MEB physical.  There is no reasonable basis for recommending it as unfitting if Board jusrisdiction is conceded.  The CI noted a prior left ankle injury on the MEB physical and received a 10% rating for it by the VA.  The VA examiner dated the injury to 2001 stating ‘He denies any other treatment since that time.’  Although it is possible that impairment from the ankle condition was overshadowed by the knee condition, that possibility is unduly speculative as the basis for a Board fitness recommendation.  The ankle condition was not profiled or covered in the Commander’s statement.  The MEB physical noted a history of sinusitis, bronchitis and unspecified ENT complaints.  These conditions were chronic and stable with no link to fitness in evidence.  They were not rated by the VA.  The only other conditions which received compensable ratings were the right elbow (as discussed above in conjunction with the left elbow condition) and degenerative joint disease of the lumbar spine.  Like the right elbow, the back condition was not noted on the MEB physical, discussed in the NARSUM or noted in the physical profile or Commander’s statement.  The right elbow and lumbar conditions are therefore not eligible for Board consideration.  They likewise remain eligible for ABCMR appeal.
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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 definitive PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the bilateral knee condition, the Board unanimously recommends that it be rated for two separate unfitting conditions as follows: the left knee condition coded 5259 and rated 10%; and, the right knee condition coded 5259 and rated 10%; both IAW VASRD §4.71a.  In the matter of the left elbow condition, the Board unanimously recommends no recharacterization of the PEB adjudication as not unfitting.  In the matter of the obstructive sleep apnea, left ankle condition or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation.  PTSD and/or depression, the right elbow condition and the lumbar spine condition remain eligible for ABMCR consideration; although no evidence on record would suggest that they could be characterized as unfitting.
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RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation.

UNFITTING CONDITION	VASRD CODE	RATING	
Post-Menisectomy Residuals Left Knee 	5259	10%	
Post-Menisectomy Residuals Right Knee 	5259	10%	
COMBINED (Incorporating BLF)	20%	
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The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20090220, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.