RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxxxxxxxxx	CASE:  PD1300270
BRANCH OF SERVICE:  Army	BOARD DATE:  20131105
SEPARATION DATE:  20081220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (92F/Petroleum Supply Specialist) medically separated for a right knee condition.  The CI was involved in a training accident in January 2007 which resulted in dislocation of his right knee.  He underwent conservative treatment for a year with no improvement.  He then underwent arthroscopic surgery on his right knee in February 2008.  Despite follow on physical therapy and treatment, the right knee condition 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 right knee condition, characterized as “right knee pain and instability” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded chronic low back pain (LBP) as meeting retention standards.  The PEB adjudicated “right knee, other impairment of” as unfitting, rated 20% with likely application of Veterans Affairs Schedule for Rating Disabilities (VASRD).  The chronic LBP condition was determined to be not unfitting and not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Unable to have full range of motion, tenderness in my knee.  Knee continues to give out.”
The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the DES 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 Veterans Affairs, operating under a different set of laws.  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.

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 requested right knee condition was also reviewed and is within the purview of the board as the Army PEB determined this condition as unfit.  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.  

In addition, the CI was notified by the Army that his case may be eligible for review on the military disability evaluation of his mental health condition in accordance with the Secretary of Defense directive for a comprehensive review of service members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012 and whose mental health diagnoses were changed during that process.  The CI is eligible for PDBR review of his conditions evaluated by the PEB and elected review by the PDBR.  In accordance with Secretary of Defense directive for a comprehensive review of mental health diagnoses that were changed during the Disability Evaluation System (DES) process, the CI’s case was reviewed with regard to mental health diagnosis change, fitness determination and rating of unfitting mental health diagnoses in accordance with the VASRD §4.129 and §4.130.  

RATING COMPARISON:

Service IPEB – Dated 20081015	VA – no rating apparent in the record of evidence	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee, Other Impairment of	5257	20%	No VA Entry	
Chronic Low Back Pain	Not Unfitting	No VA Entry	
No Additional MEB/PEB Entries	No VA Entry	
Combined:  20%	Combined:  N/A	

ANALYSIS SUMMARY:  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the DES 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 Veterans Affairs, operating under a different set of laws.  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.

Right Knee Condition.  The CI initially presented with right knee complaints in 2006.  He reported right knee locking and buckling without a history of trauma.  He subsequently sustained a right knee injury in January 2007.  The CI continued to report right knee pain and magnetic resonance imaging performed on February 21, 2007, revealed a lateral patellar dislocation with contusions of the lateral femoral condyle and patella and a partial disruption of the medial patellofemoral ligament.  The CI underwent a right knee arthroscopy with open medial patellofemoral ligament repair.  The narrative summary (NARSUM), 3 months prior to separation, noted the reported increase pain after arthroscopic surgery, decreased range-of-motion and instability which did not respond to physical therapy and pain medications.  The NARSUM physical was significant for right knee medial joint line tenderness, with 2+ instability, and decreased knee flexion to 120 (normal 140) degrees due to pain.  There were no available records of a Veterans’ Affairs evaluations or rating decisions.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB adjudicated the right knee condition as knee, other impairment moderate; coded VASRD 5257 and conferred a disability rating of 20%.  The Board determined that the right knee instability and painful limitation of motion did not rise to the level of severe for a higher rating of 30%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right knee condition.  The Board concluded, therefore, that this condition could not be recommended for additional disability rating.

Mental Health Review.  The Special Review Panel reviewed the records for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the DES.  The evidence of the available records shows that prior to and at the time of processing through the DES there were no mental health diagnoses rendered; therefore, no mental health diagnoses were changed to the CI’s possible disadvantage, and this CI did not appear to meet the inclusion criteria in the Terms of Reference of the Mental Health Review Project.  In addition, all panel members agreed that the preponderance of evidence did not support an unfit determination for a mental health disorder (s).

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 right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Knee, Other Impairment	5257	20%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130508, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-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 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, AR20140002216 (PD201300270)

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:

Encl