RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301076
BRANCH OF SERVICE:  Army	BOARD DATE:  20140131
SEPARATION DATE:  20090427

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (25U1O/Signal Support Specialist) separated for a left knee condition.  The CI sought medical attention for her left knee pain in 2007 during her fourth week of basic training.  She was treated with anti-inflammatory medications, physical therapy and arthroscopic surgery, but the condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded chronic left knee pain as not meeting rendition standards, as well as, asthma; low back pain (LBP); lower extremity numbness; allergic rhinitis and hydromyelia as meeting retention standards; all IAW  AR 40-501.  The Informal Physical Evaluation Board (PEB) adjudicated left knee chondromalacia as unfitting rated 10%, with application the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “PEB rating of 20% w/disability discharge should have been at least 30% - VA Disability Rating of 30% upon review of military records.”

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 rating for the unfitting left knee condition is addressed below.  The not unfitting asthma, lower extremity numbness and allergic rhinitis conditions, as per the contention, were identified by the PEB; and, thus are within the DoDI 6040.44 defined purview of the Board.  The not unfitting LBP and hydromyelia were not contended, and therefore, are not in the Board’s purview.  These, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s contention that suggests a higher rating should have been granted for the unfitting medical condition documented at the time of separation.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

RATING COMPARISON:

Service IPEB – Dated 20090312	VA1 - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam2	
Left Knee Chondromalacia	5099-5003	10%	Left Knee Condition...	5260	10%3 & 4	STR	
Asthma	Not Unfitting	Asthma	6602	10%5	STR	
Low Back Pain	Not Unfitting	Low Back Pain	5237	NSC	STR	
Lower Extremity Numbness	Not Unfitting	Left Lower Extremity	8520	10%5	STR	
Allergic Rhinitis	Not Unfitting	Allergic Rhinitis	6522	0%5	STR	
Hydromyelia	Not Unfitting	Hydromyelia	8099-8024	NSC	STR	
No Additional MEB/PEB Entries	Other x 4	STR	
Combined:  10%	Combined:  30%	
1. Derived from VA Rating Decision (VARD) dated 20090724 (most proximate to date of separation (DOS))
2. CI failed to report to C&P General exam 20090701
3. VARD dated 20091216 added left knee instability with C&P exam 20091112 at 10% effective 20091112
4. VARD dated 20130413 added surgical scars associated with left knee strain with C&P exam 20091112 at 10% effective 20091112
5. No change to ratings derived from subsequent C&P exams

ANALYSIS SUMMARY:

Left Knee Chondromalacia.  Although left knee pain began during basic training in September 2007, the CI was able to complete her training.  Ongoing pain led to arthroscopic intervention in February 2008 for removal of a loose body and performance of a microfracture procedure to treat an osteochondral defect of the medial femoral condyle.  Post-operative physical therapy did not alleviate chronic pain.  A magnetic resonance imaging study performed in June 2008 was normal.  At an orthopedic MEB addendum exam on 4 October 2008 (7 months prior to separation), the CI reported that the knee pain was only slightly improved since the time of surgery.  Examination of the left knee showed no swelling, full range-of-motion (ROM) and no ligament instability.  She could bear weight, but with some pain.  Tenderness of the medial joint line was present.  The 5 November 2008 MEB exam (6 months prior to separation) noted no joint tenderness, swelling or instability.  A slight decrease in left thigh muscle size was present.  Patellar crepitus was also noted.  At the narrative summary exam on 30 January 2009 (3 months prior to separation), the CI reported that anti-inflammatory medication was not beneficial for pain, but could help swelling when it developed.  Pain was rated at 3-4/10 at rest and 8-9/10 when walking.  Walking was limited to 15-20 minutes due to pain; and she could not run because her left knee “gives out.”  She could perform activities of daily living and did not use a cane for assisted walking.  Examination showed an antalgic gait (limp) favoring the left leg without assistive device, left medial joint line tenderness and decrease in left thigh muscle size.  There was no swelling and no ligamentous laxity.  Repetitive motion did not result in additional limitation of motion.  On 10 September 2009 (approximately 4 months after separation) a second arthroscopic surgery was performed by a civilian orthopedist to address persistence of the osteochondral defect.  Pre-operatively, the examination revealed full flexion and full extension, tenderness, painful patellar crepitus and painful motion.  All knee ligaments were intact.

At the VA Compensation and Pension exam on 12 November 2009, (6 months after separation and 2 months after the second surgery), the CI reported that anti-inflammatory medication was helpful for pain.  She complained of pain, instability, giving way and lack of endurance.  She did not require ambulatory aids.  Examination revealed an abnormal gait, but no left foot callous or unusual shoe wear pattern.  Slight instability of the medial collateral ligament of the left and right knee was reported.  Repetitive motion did not result in additional loss of motion.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Left Knee ROM
(Degrees)	MEB Addend ~7 Mos. Pre-Sep	NARSUM ~3 Mos. Pre-Sep	VA C&P ~6.5 Mos. Post-Sep	
Flexion (140 Normal)	140	125	102	
Extension (0 Normal)	0	5	0	
Comment	+Tenderness, painful weight-bearing. No instability.	+Tenderness, painful motion, crepitus. No instability.	+Painful motion, tenderness; slight instability	
§4.71a Rating	PEB 10%	PEB 10%	VA 20%	
5003	10%*	10%*	10%*	
5257	No Rating	No Rating	0% or 10% (VA 10%)	
	*With application of §4.40 (functional loss) or §4.59 (painful motion)

The Board directs attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis), while the VA also assigned an initial 10% rating (based on the STR) under a limitation of flexion code (5260) despite the presence of non-compensable limitation of motion.  After the results of the VA exam in November 2009 were available, the VA added a 10% rating under the 5257 code (knee, other impairment of) for slight instability, effective November 2009 (i.e. not effective the day after separation).  Sufficient evidence is present to support a 10% rating with use of §4.40 (functional loss) or §4.59 (painful motion).  The 5259 code (removal of semilunar cartilage, symptomatic) offers no route to a higher rating.  A 20% rating under the 5258 code (dislocated semilunar cartilage) was also considered, but dislocated cartilage was not present.  The Board also debated if an additional 10% rating was justified under the 5257 code later used by the VA.  Notwithstanding the fact that the VA exam occurred after an intervening surgery, thereby reducing its probative value relative to the time of separation, Board members agreed that multiple examinations near the time of separation confirmed the absence of ligamentous laxity.  Therefore, additional rating under this code was not supported.  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 left knee chondromalacia condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that asthma, lower extremity numbness and allergic rhinitis were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The asthma, lower extremity numbness and allergic rhinitis conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  The CI indicated on the Report of Medical Assessment on 6 October 2008 that the only condition that limited her ability to work in her specialty was the knee condition.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any of these conditions 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 a change in the PEB fitness determination for these contended conditions, and so no additional disability ratings are 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 left knee chondromalacia condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended asthma, lower extremity numbness and allergic rhinitis conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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	
Left Knee Chondromalacia	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130722, 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, AR20140013383 (PD201301076)

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