RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX		BRANCH OF SERVICE: ARMY
CASE NUMBER:  PD0900211		COMPONENT: REGULAR
BOARD DATE: 20090813		SEPARATION DATE: 20041201
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SUMMARY OF CASE: This covered individual (CI) was an NCO medically separated from the Army in 2004 after 12 years of service.  The medical basis for the separation was a left patellar tendon injury.  He incurred a complete rupture from a sports injury on active duty in 1999, requiring surgical repair.  After rehabilitation of the knee, he was placed on a permanent P2 profile.  He incurred an aggravating injury in Korea in 2003, which resolved after a period of non-weight bearing.  The condition worsened to the point, however, that he could not fulfill the requirements of his MOS and he underwent a MEB.  Although he had some chronic back pain as well, it was specifically stated in the NARSUM that this did not require a board.  The CI was referred to the PEB, found unfit for his knee and separated at 10% disability. 
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CI CONTENTION: The CI contends for rating of his unfitting condition equivalent to that of the VA.
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RATING COMPARISON:

Service PEB	VA   (1 Mo. from Separation)	
PEB Condition	Code	Rating	Date	Condition	Code	Rating	Exam	Effective	
LEFT KNEE PAIN, STATUS POST PATELLAR RUPTURE AND REPAIR	5099-5003	10%	20040816	RESIDUALS PATELLAR TENDON RUPTURE STATUS POST REPAIR, LEFT KNEE	5399-5313	30%	20040921	20041202	
				SCAR, POST OPERATIVE ; LEFT KNEE	7804	10%	20040921	20041202	
				NON-PEB X 5 (INCLUDED BACK CONDITION 5242 AT 10%)			20040921	20041202	
TOTAL Combined:  10 %	TOTAL Combined (incl non-PEB Dxs):    40%                                                                          	

ANALYSIS SUMMARY:

Primary Knee Rating.  The PEB rated the knee analogous to 5003, which would fit any painful joint.  The VA rated the knee analogous to 5313, using a muscle code to reflect the primary tendon pathology.  It is noted that the VA rater applied the wrong anatomic code.  5313 applies to the flexor groups, and the pathology was in the extensor groups (5314).  The rating scheme (VASRD §4.56) for both codes is identical and the rating decision accurately reflected the rating examiner’s findings.  IAW VASRD §4.7, the code which more closely reflects the disability and yields the higher rating is required.  In that regard, the VA code is indicated in this case.  The pathology is not within the joint, but related to the muscle’s attachment to the joint.  The VA 30% rating applies to ‘moderately severe’ disability.  The lower (10%) rating is ‘moderate’.  The highest ‘severe’ and lowest ‘slight’ ratings are easily excluded in this presentation.  The case meets most of the ‘cardinal signs and symptoms’ specified in §4.56c (loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement).  The VA rating examiner specifically stated, ‘His left leg is weaker and easily fatigued on repetitive motion.’ and ‘He wobbles when he tries to stand on his left leg only’.  The 10% rating specifies ‘one or more’ of the §4.56c elements, adding ‘particularly lowered threshold for fatigue after average use, affecting the particular functions controlled by the injured muscles’.  The 30% rating specifies ‘consistent complaint’ of §4.56c elements, adding ‘evidence of inability to keep up with work requirements’.  Inability to keep up with work requirements is intrinsic to PEB cases, but the CI continued to require modified employment demands per VA documentation.  The objective findings for the 10% rating note ‘some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side’.  The 30% rating notes ‘loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment’.  The MEB examiner stated ‘5/5’ strength at the knee, although he noted and later measured quadriceps atrophy.  The VA examiner noted baseline weakness in addition to easy fatigue, and added ‘apparent loss of medial aspect of the quadriceps muscles’.  This case is not an unequivocal match to either of the rating descriptions regarding functional impairment and objective findings.  VASRD §4.3 (reasonable doubt) would favor the higher rating.  The concurrent VA rating of 30% is also problematic to refute.

Knee Instability.  Neither the PEB nor the VA incorporated this code for additional rating, although documentation supports its use and the VASRD allows it (without violating the proscription against pyramiding).  Neither the MEB physical nor the NARSUM comment on the stability of the knee joint.  The VA initial rating exam, however, states specifically ‘The left knee has weak lateral ligaments’.  The wobbling quoted above could also suggest knee instability, unless it was due to intrinsic muscle impairment subsumed under the 5314 code.  The arguments against adding 5257 (rating 10%), are that 1) the VA did not find it significant enough to code and rate, 2) documentation to the PEB did not implicate it, and 3) the disability is easily subsumed under 5314 if the higher rating is chosen.

Additional Conditions.  The back condition may have played into the CI’s overall unfitness picture, but the NARSUM specifically stated that ‘The soldier is not being boarded for his back pain at this time.’  The Commander’s statement did not implicate the back specifically and the profile restrictions were more tailored to the leg and knee pathology.  There is no firm basis for a recommendation to add the back condition as additionally unfitting, in face of the MEB’s and PEB’s expertise in these decisions.  Surgical scars, as coded by the VA, are considered by the PDBR as to whether they make enough of a direct contribution to unfitness to merit PEB rating.  No such threshold appears to have been met in this case.

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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 PDBR 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.  The Board unanimously agreed that IAW §4.7 (higher of two evaluations) a change of the knee coding from 5099-5003 to 5399-5314 (correcting the VA’s anatomical inaccuracy) was indicated.  The Board unanimously agreed that, given a concurrent rating of 30% by the VA and IAW §4.3 (reasonable doubt), a rating of 30% under the new code is recommended.  The Board considered addition of the knee instability code and rating (5257 at 10%), but concluded that it would be subsumed under the higher 30% knee rating.  Unanimously, the additional rating is not recommended.  The Board unanimously concluded that there is no justification for finding the thoracolumbar or scar diagnoses as additional unfitting conditions for PEB rating.
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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	
LEFT KNEE PAIN, STATUS POST PATELLAR RUPTURE AND REPAIR	5399-5314	30%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20090402, w/atchs.
Exhibit B.  Service Treatment Record.
Exhibit C.  Department of Veterans' Affairs Treatment Record.