RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300717
BRANCH OF SERVICE:  Army	BOARD DATE:  20140801
SEPARATION DATE:  20020207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (92G10/Food Service Specialist) medically separated for a bilateral knee condition.  This 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 MEB forwarded separate diagnoses of “bilateral retropatellar pain syndrome [RPPS]” and “status post ACL [anterior cruciate ligament] surgery” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted on the final MEB DA Form 3957.  The CI appealed for addition of a mental health (MH) condition (“anxiety/depression”) and two non-MH conditions (neck, headache).  The MEB’s narrative summary (NARSUM) listed a diagnosis of anxiety/depression, which had been submitted on the initial DA Form 3957.  The Informal PEB combined the knee submissions into a single unfitting condition, “bilateral [RPPS] status post right ACL repair,” rated 20%, referencing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Do not understand”

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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20011116	VA* (~5 Mo. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Retropatellar Pain Syndrome	5009-5003	20%	Traumatic Arthritis Right Knee…	5010-5261	10%	20020720	
			Left Knee Pain	5099-5010	NSC	20020720	
Anxiety/Depression	Not Adjudicated	Pain Disorder … Somatic Syndrome*	9422	30%	20020703	
Other x 0 (Not in Scope)	Other x 12	20020711	
Combined:  20%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 20021118 (original VARD 20020905 deferred the Mental Health condition).

ANALYSIS SUMMARY:

Bilateral Knee Condition.  The first entry in the service treatment record (STR) for this condition documents a sports injury (organized unit training) to the right knee in October 1999.  This was initially managed as a contusion with activity restriction and conservative measures, but the CI continued to complain of pain.  Magnetic resonance imaging 3 months later revealed a small effusion (joint fluid) and patellar chondromalacia (arthritic changes under knee cap) and, (on orthopedic review) suggested a tear of the medial meniscus (cartilage), but no evidence of ligament damage or other internal derangement.  Arthroscopic surgical intervention ensued in March 2000.  This revealed some ACL laxity (no tear) which was addressed by thermal attenuation (heat shrinkage of the ligament without open surgery), debridement of the patellar chondromalacia (partial chondroplasty) and correction of patellar attachments (lateral retinacular release).  No anesthetic or other procedural complications are documented in the operative note.  Initial post-operative notes documented a favorable course with notation of normal gait and normal range-of-motion (ROM); but, an orthopedic entry in August 2000 (5 months post-op) somewhat abruptly documented “no improvement ... no recurrent injury” and a new complaint of headache.  The headache (and persistent disabling back pain) was later ascribed by the CI to complications of his spinal anesthetic for the right knee procedure.  Later correspondence from anesthesiology to the MEB refuted this association.  An entry 4 weeks later (with no interim entries) relates a complaint of “chronic bilateral knee pain,” noting that the left knee had been treated with a steroid injection; and, physical findings of “limping slow gait” but full active ROM of both knees.  The left knee was mentioned in one subsequent STR entry and bilateral knee pain in another, but the great majority of STR evidence relates to the right knee only.  There is a physical therapy (PT) note from October 2000 documenting that a cane was dispensed for the right knee (with a diagnosis of RPPS), but there is no STR evidence for issue of a wheel chair, fitted brace, or other mobility aid; nor, are there any STR entries referring to their use.  There are ROM measurements (PT) from April 2001 (10 months pre-separation) documenting 120 degrees flexion (normal 130 degrees; minimal compensable 45 degrees) of the right knee and 130 degrees of the left; extension was 0 degrees (normal) bilaterally.  There are no STR entries documenting instability, signs of cartilage impingement, locking or persistent effusions.

The NARSUM was prepared in May 2001 (soon after the STR entries noted above and 9 months pre-separation) and, states “wears a permanent metal brace to the right knee ... [and] ... has been in a wheelchair mostly and claims that he couldn't go too far on his legs even with the knee braces.”  A history of swelling and right knee locking was noted, but the physical exam (documenting presentation in a wheelchair with bilateral knee braces) recorded only “some crepitations” bilaterally with mild right thigh atrophy.  Identical ROM measurements to those from the above PT exam were provided (assumed to have been referenced, not repeated).  The NARSUM diagnosis was bilateral RPPS.  The commander’s performance statement cited physical limitations regarding heavy carrying, construction, prolonged standing, and noted that the CI “has been unable to fully participate in field exercises” without implications regarding severe impairment of mobility.  Non-orthopedic MEB evaluations contemporary with the NARSUM make no note of the use of a wheel chair or impeded ambulation.

The VA Compensation and Pension (C&P) evaluation was performed in July 2002 (~5 months post-separation); and, cited the CI’s statement “that he is wheelchair bound, can walk only several steps from his bed to his bathroom,” also noting the use of bilateral knee braces.  The examiner expressed, “I am not sure why he wears knee braces if he is wheelchair bound;” and, commented on the physical exam that the CI was “well muscled” and “not as debilitated as though it would appear from being wheelchair bound.”  Other physical findings were tenderness around the patella and “poor effort and early guarding” with strength testing.  The examiner documented the absence of joint line tenderness, swelling, signs of cartilage impingement, or instability to stress testing in all planes.  The VA ROM measurements were 120 degrees flexion bilaterally.  The VA diagnostic impressions were “mechanical knee pain ... minor traumatic injury with arthroscopy” for the right knee and “subjective complaints” for the left knee, further noting that none of the reported activity limitations could be related to “actual objective findings.”  The VA’s original rating of 10% for the right knee condition (with no service-connection of the left knee) has not changed over the course of subsequent rating decisions.  There are compelling opinions and evidence from subsequent VA neurologic and psychiatric evaluations that there was a very substantial psychological contribution to the physical disability in this case, which will not be elaborated here; but is probative to the Board’s rating recommendation which must be based on the disability confined to the unfitting knee condition(s) based on criteria of the VA Schedule for Rating Disabilities (VASRD) §4.71a.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB’s 20% bilateral rating is derived from stipulations of the USAPDA pain policy; which, IAW DoDI 6040.44, must also be applied by the Board if it is favorable to the VASRD.  The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each disability rating.  With regards to either separate joint, there is no compensable ROM impairment and, neither the service nor VA evidence indicated the presence of ligamentous laxity, frequent effusions or locking.  There is therefore, no VASRD §4.71a route to a rating higher than 10% for either knee under any applicable code and no grounds for additional rating of instability.  Members agreed that there are quite defensible arguments that the left knee was not separately unfitting in this case; but, that determination is rendered moot since, even if conceded as separately unfitting and separately rated, the combined outcome would not differ from the PEB’s bilateral rating under the pain policy.  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 of the bilateral knee condition.

Contended MH Condition.  There are no entries in the available STR documenting any formal MH diagnosis or treatment.  The CI reported to the NARSUM examiner that he had been “seen by a psychiatrist ... for depression,” which was the only documented basis for the NARSUM diagnosis of “anxiety/depression” as initially submitted on the DA Form 3957.  The PEB ordered a discontinuance requesting psychiatric evaluation if there were active symptoms, or to drop the diagnosis if there were not.  Psychiatric consultation obtained in July 2001 and that examiner reported that the CI had been seen once by Behavioral Health “for help with techniques in pain management” with “no treatment for depression.”  The consultant concluded that “he has many issues and some adjustment disorder level depression;” but, “his mental health condition in and of itself would not warrant an MEB ... [or] ... justify an addendum.”  The condition was then dropped from the final MEB submission.  The MEB’s DD Form 2807-1, Report of Medical History, noted symptoms of anxiety and depression without elaboration and no MH diagnosis was included in the examiner’s diagnostic summary.  The profile remained S1 throughout service and the commander’s statement referenced no MH conditions or impairment.  The CI underwent a VA psychiatric C&P evaluation in July 2002 (5 months post-separation) reporting service treatment for depression, with initial VA diagnoses of depression and panic disorder.  This evaluation was addended 2 months later, with the examiner stating that records had not been available at the time of initial review and that the diagnostic impression was altered by record review.  The addendum stated that “It appears that the veteran is mis-reporting and overstating [his conditions] ... [with] ... numerous inconsistencies ... [and] ... unsupported claims;” and, the diagnosis was changed to “pain disorder due to psychological and general medical condition.”  In corroboration of the psychiatric impression, a VA neurologist contemporarily evaluating the headache condition documented various inconsistencies and arrived at a diagnosis of “functional somatic syndrome” (encompassing all complaints with headache as a component).  The VA conferred a 30% rating under the somatoform diagnosis which has not changed over subsequent decisions (per available records).

The Board directs attention to its recommendation based on the above evidence; and, it’s first assessment with regard to the MH condition, under guidelines of the MH Review Project, is to judge (based on a preponderance of evidence) whether a diagnosis was changed to the disadvantage of the applicant or unfairly eliminated.  In this case an MH diagnosis was initially forwarded to the PEB and psychiatric consultation was requested for clarification.  Based on this consultation and a reasonable specialty opinion, the MH condition was withdrawn for PEB consideration.  This case does appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.

There is not documentation of a formal ratable Axis I condition to recommend as an MH diagnosis, since the MEB psychiatric consultation is the only service evaluation in evidence; and, that yielded a diagnostic impression akin to adjustment disorder (not service compensable IAW DoDI 1332.38).  Members agreed that there is not a preponderance of evidence supporting a change of that diagnosis to a compensable one.  The lack of support for a compensable service MH diagnosis notwithstanding, all members further agreed that there would be insufficient evidence for recommending any MH condition as unfitting and eligible for rating; noting the S1 profile, the lack of indication by the commander that there were MH limitations on performance, and the lack of any performance-based evidence in the service record suggesting that such limitations existed.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend the addition of an MH condition for disability rating.

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, however, DoDI 6040.44 caveats this mandate with the stipulation that the service or DoD regulations in effect that are more favorable to the applicant shall be applied and, the Board’s recommendation for the bilateral knee condition is thereby derived from the USAPDA pain policy as applied by the PEB.  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended psychiatric condition, the Board unanimously agrees that no MH condition can be recommended for additional disability rating.  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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130503, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

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 XXXXXXXXXXXXXXXXXX, AR20140016344 (PD201300717)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA