RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxx	 CASE:  PD 13-00667	
BRANCH OF SERVICE:  Army  	 BOARD DATE:  20131120
SEPARATION DATE:  20071122		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92G, Food Service Specialist) medically separated for a left knee condition.  The knee pain began in 2004 during basic training. Conservative treatment was inadequate and she underwent a left knee surgery in September 2005.  The left knee condition could not be adequately rehabilitated to meet the requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards; she was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The knee condition, characterized as “left knee pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “arthritis with left knee pain…” as unfitting, rated 0%, with likely application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated (released from active duty due to medical disability) and transferred to the Retired Reserve List awaiting pay at age 60 pursuant to her request.

CI CONTENTION:  “In the years since my discharge my conditions have affected and limited my family and employment options”   

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.  In addition, the CI was notified by the Army that her case may eligible for review of the military disability evaluation of any mental health condition in accordance with 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 or eliminated during that process.  Since the CI responded to this mailing, it is presumed that she has elected review by the PDBR for the mental health condition although she did not specifically contend for it on the DD Form 294.  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 applicant’s case file was reviewed regarding diagnosis change, fitness determination, and rating of unfitting mental health diagnoses in accordance with the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.129 and §4.130.  The CI is also eligible for PDBR review of other conditions evaluated by the PEB and has elected review by the PDBR.  The Service rating for the unfitting left knee condition and any mental health conditions are addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 Army Board for Correction of Military Records (BCMR).  The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected condition continues to burden her, but must emphasize that the Military Disability Evaluation System has neither the role nor the authority to compensate service 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; DoDI 6040.44 defines a 12 month 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.

RATING COMPARISON:  
   
Service PEB – Dated 20070911	VA - based on Service Treatment Records (STR)*	
Condition	Code	Rating	Condition	Code	Rating*	Exam	
Arthritis with Left Knee Pain	5003	0%	Left Knee Injury	5261	NSC	STR	
No Additional MEB/PEB Entries	History of Bipolar Disorder	9432	NSC	STR	
Combined:  0%	Combined:  0%	
Derived from VA Rating Decision (VARD) dated 20090130.   
*CI failed to appear for 20090103 C&P exam so conditions were ruled Not Service Connected (NSC).  2013 ratings increased to 10% (knee) and 50% (bipolar disorder) based upon 20121004 and 20121017 exams (respectively) for these conditions.  

ANALYSIS SUMMARY:  

Left Knee Condition.  The CI began to have left knee pain while in basic training in 2004.  An x-ray report dated 3 June 2005 documented a one year history of knee pain and the presence of an effusion with moderate DJD (degenerative joint disease) changes.  An MRI two weeks later showed a tear of the anterior cruciate ligament (ACL) as well as a medial meniscal tear (MMT) of the posterior horn along with a mild joint effusion.  She was noted to have no solid endpoint on a Lachmans test (for ACL integrity) on orthopedic examination and repair was recommended.  The orthopedist noted that the CI would need a P3 profile and MEB after surgery due to the advanced DJD on imaging.  On 12 September 2005 the CI underwent ACL reconstruction, debridement of the MMT, and microfracture (to facilitate healing) of chrondral defects.  The record does not further specify the microfracture sites, but she was noted to have osteochondral defects of the medial femoral condyle and tibial plateau on MRI.  She improved sufficiently after rehabilitation that she was able to deploy.  While deployed, her active treatment stopped.  After re-deployment and resumption of normal activity, her pain progressed.  She was issued a L3 profile on 24 April 2007 and entered into the DES (disability evaluation system) process.  The commander’s letter was dated 23 May 2007.  It noted that she did excellent work in the operations office and conducted herself professionally at all times, but could not meet the physical standards required due to her (left knee) condition.  The narrative summary (NARSUM) was dictated 11 July 2007, four months prior to separation.  The CI reported better stability after the surgery, but increased pain since the surgical repair in 2005.  She also noted some increased pain in the right knee secondary to favoring the left.  On examination, the gait, heel and toe walk were all normal.  Neither crepitus nor effusion was present.  The knee was stable.  X-rays showed moderately severe DJD on the left.  On the range of motion examination, flexion was reduced ten degrees to 130 degrees and extension was normal.  The right knee showed normal flexion at 140 degrees and five degrees of hyperextension.  Painful motion was not documented.  There was no VA Compensation and Pension (C&P) exam performed proximate to separation.  The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee at 0% coded 5003 for degenerative arthritis.  The VA coded the knee as 5261, limitation of extension, but did not service connect it as the CI did not report for an examination.  Subsequently though, the VA rated the left knee at 10% and coded it 5010-5260 (traumatic arthritis and limitation of flexion) based on the 4 October 2012 C&P examination, almost five years after separation.  The Board considered the various coding options available for the knee.  A 10% for limited motion with radiographic evidence of degenerative arthritis is supported under code 5003.  In the absence of instability or compensable loss of motion, the Board found no route to a higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the left knee condition.  

Contended PEB Conditions.  The CI also contended for her mental health condition, diagnosed after separation as bipolar disorder.  Although the CI was seen in the mental health clinic prior to separation, she was always released to duty without limitations (from a mental health condition.)  The CI noted that she had struggled with depression since childhood.  While she carried different mental health diagnoses including major depression and anxiety disorder, her profile remained S1 and her commander praised her performance and cited only her physical limitations as duty impairing.  The MEB examination documented frequent panic attacks, but without a diagnosis of a mental health condition.  The mental health condition was not referred to the MEB nor was it considered by the PEB.  The SRP determined that no mental health diagnoses were changed to the applicant's possible disadvantage in the disability evaluation process.  This applicant therefore did not meet the inclusion criteria in the Terms of Reference of the Mental Health Diagnosis Review Project.  The CI was diagnosed with bipolar disorder, but the diagnosis was made after separation when she had the stressors of her recent separation, an upcoming move, and the deployment of her husband.  The evidence was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that a mental health condition 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 the addition of the contended mental condition and so no additional disability rating is 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.  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 contended bipolar disorder 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Arthritis with Left Knee Pain	5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130528, 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 xxxxxxxxxxxxxxxxxxx, AR20140003541 (PD201300667)

1.  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 to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation.  This decision is final.  

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.   

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