RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXX	 CASE:  PD-2013-01133
BRANCH OF SERVICE:  AIR FORCE	 BOARD DATE:  20140710
DATE OF PLACEMENT ON TDRL:  20040608
Date of Permanent SEPARATION:  20070501

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSgt/E-5 (3E171/Heating, Ventilation, A/C & Refrigeration) medically separated for a right knee condition.  He experienced the onset of symptoms in 2002 and underwent arthroscopic surgery in 2003.  Despite physical therapy and a steroid injection, pain and mechanical symptoms continued, and an osteoarticular allograft surgery was recommended.  The condition could not be adequately rehabilitated to meet the physical requirements of his Air Force Specialty (AFS) or satisfy physical fitness standards.  The CI was issued a permanent L4 profile and referred for a Medical Evaluation Board (MEB).  Osteochondral defect medial femoral condyle was forwarded to the Physical Evaluation Board (PEB) IAW AFI 48-123.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated osteochondral defect right knee as unfitting, rated 30%, and placed the CI on the Temporary Disability Retired List (TDRL).  In 2007, the PEB re-adjudicated the knee condition as unfitting, rated at 20%.  The CI made no appeals, and was medically separated.

CI CONTENTION:  The CI requests restoration of disability retirement.  “On 2/27/2007 Dr. XXXXX’s TDRL examination of me noted that I had no physical limitations and my knee "has not stabilized".  However, Dr. XXXXX, Dr. XXXXX and Dr. XXXXX stated that I will have a lifetime of physical restrictions. The TDRL Board went with the opinion of Dr. XXXXX whose opinion is completely inaccurate.”  The CI cites the poor prognosis for resolution of the condition with surgery predicted by his orthopedic surgeons with subsequent need for a uni-compartmental knee replacement.  The CI describes difficulty obtaining recommended knee surgeries (high tibial osteotomy, osteochondral transplant) since placement on the TDRL, and continued worsening of the knee condition.  The CI’s attachments to his application were reviewed by the Board and considered in its recommendations.

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 right knee condition is addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any condition 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. 

RATING COMPARISON:

Final Service PEB – 20070227	VA (6 Mo. Post- Adjudication Date*) - Effective 20070921	
On TDRL - 20040608	Code**	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Osteochondral Defect Right Knee 	5257	30%	--	Right Knee s/p Arthroscopic Surgery For Removal Of
Loose Bodies With Bursal Calcifications In Posterior
Medial Joint Space	5299-5260	0%	20070817	
Medial Femoral Compartment Arthrosis Right Knee	5099-5003	--	20%					
Other x 0 (Not in Scope)	Other x 2	20070817	
Combined:  30% → 20%	Combined: 0%	
*No VARD available proximate to TDRL placement

ANALYSIS SUMMARY:  The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition.  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 nor for conditions determined to be service-connected by the VA but not determined to be unfitting by the PEB.  However the Department of Veteran Affairs (DVA), operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should his degree of impairment vary over time.  The Board’s role is 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 severity at the time of separation.  The Board has neither the jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in the application regarding suspected DES improprieties in the processing of his case.

Right Knee Condition.  The goniometric range-of-motion (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.

Right Knee ROM
(Degrees)	Ortho 
~5 Mo. Pre-TDRL Entry
(20040114)	Ortho 
~ 3 Mo. Pre-TDRL Exit
(20070130)	VA C&P 
~ 3 Mo. Post-TDRL Exit
(20070817)	
Flexion (140 Normal)	130	120	105	
Extension (0 Normal)	0	5	0	
Comment	Ligamentously stable	Ligamentously stable	No instability	
§4.71a Rating*	10%	10%	10%	
*Considering painful motion (§4.159) and functional loss (§4.40)

The CI underwent arthroscopic surgery of the right knee in March 2003 to remove a loose fragment of bone (2.7 x 1.3 x 0.4 centimeters) which had broken loose from the joint surface of the inside thigh bone portion of the knee joint (medial femoral condyle).  The cause was a condition called osteochondritis dessicans resulting from sports injuries.  As a result of the osteochondritis dessicans and the presence of the loose body in the joint, there were severe degenerative changes of the medial femoral condyle for which chondroplasty was also performed (drilling or picking the bone surface to attempt to stimulate cartilage growth).  The remaining joint surfaces of the knee were normal (lateral femoral condyle, patella, medial and lateral tibia).  The ligaments and menisci were intact.  A partial tear of the anterior cruciate ligament was noted but the knee joint was ligamentously stable.  Post-operatively, the locking due to the loose body was resolved but there was pain with vigorous activities required of his AFS.  Due to his young age, orthopedic surgeons recommended surgical procedures, not routinely performed as treatment options (e.g. osteoarticular grafting) but noted a poor prognosis for recovery of the advanced loss of joint surface cartilage of the medial femoral condyle.  His surgeons noted that at some point in the future a partial knee joint replacement would be needed despite any grafting or other procedures.  The orthopedic examination dated 14 January 2004, that was proximate to the MEB, noted that the CI reported he was able to do his job and had gotten used to the pain.  However the CI was on a duty limiting profile preventing full performance of duties (e.g. running, jumping, crawling, climbing and heavy lifting).  On examination, right knee ROM was mildly limited in flexion as recorded in the chart above.  There was no ligamentous instability or effusion.  The PEB recommended placement on TDRL since additional surgery had been recommended for the knee condition indicating the condition was not stabilized for rating.

At an interim TDRL evaluation in October 2005, the CI had not been able to obtain the recommended surgeries.  The IPEB, dated 11 January 2006, noted that the CI was placed on the TDRL specifically to allow corrective surgery which had not yet occurred.  The IPEB continued the CI on TDRL encouraging him to seek the recommended surgery.  The CI underwent a second arthroscopic surgery of the right knee in September 2006 for removal of another loose fragment (15 x 10 millimeters).  The severe degenerative changes of the medial femoral condyle were again noted covering an area of 4X3X3 centimeters and located such that contact with the opposite tibial joint surface was made from 30 to 100 degrees of flexion.  The area of chondromalacia was again treated with chondroplasty.  Examination during the surgery indicated no ligament laxity or instability and the remainder of the joint was normal as at the time of the 2003 arthroscopic surgery.  The orthopedic surgeon recorded a recommendation for a high tibial osteotomy to change the angle of the shin bone to redistribute the body weight through the knee joint to the normal lateral side of the knee joint.  The final TDRL orthopedic re-examination performed on 30 January 2007 recorded continued knee pain with use on the medial side.  On examination, the CI walked with a limp and the knee was tender.  There was mild loss of extension and flexion as recorded in the chart.  There was no ligamentous instability.  The IPEB, dated 27 February 2007, removed the CI from the TDRL effective 1 May 2007.

At the VA compensation and pension (C&P) examination, 17 August 2007, approximately 3 months after removal from the TDRL, the examiner recorded CI report of knee pain and stiffness but no weakness, locking, instability, swelling, heat or redness.  There was “slight decrease in endurance.”  The CI was not using a knee brace and took aspirin which seemed to help a little bit.  His last knee surgery was September 2006.  He was employed for a piping company where he reported his employer was flexible regarding his knee limitations.  He reported he had missed 2 weeks of work over the past year due to knee pain.  On examination, the right knee had a normal appearance and normal strength.  There was loss of flexion with normal extension as recorded in the chart.  After repetition, there was no further limitation of motion, fatigue, or discomfort.  There was tenderness to palpation on the lateral aspect of the knee.  There was no ligamentous instability, and meniscus signs were negative.  No abnormal shoe wear was seen (suggesting a symmetric gait).  X-rays of the right knee showed calcifications in the medial joint space, but was otherwise normal.

The Board directs attention to its rating recommendation based on the above evidence.  The Board first considered its rating recommendation at the time of placement on TDRL.  The PEB rated the knee condition 30% stating the condition had not stabilized since further surgery had been recommended.  The Board noted that the limitation of motion at the time of placement on TDRL did not attain a minimum rating under the respective codes for limitation of flexion or extension (5260, 5261).  There was no ligamentous instability or dislocated meniscus to support minimum ratings under the respective codes (5257, 5258).  There was functional loss (§4.40) and painful motion (§4.59) with use supporting a 10% rating.  The PEB rating was higher than application of the VASRD; however, in accordance with Service regulation and practice at the time, PEBs would assign an initial 30% rating in order to meet the DoD requirement of 30% disability for placement on TDRL when appropriate.  This is in the member’s best interest at the time and does not mean that a final lower rating is unfair, even if perceived as incongruent with subjective severity from one rating to the next.  The Board next considered its recommendation for permanent disability rating at the time of removal from the TDRL.  The sole basis for the Board’s permanent disability recommendation is the optimal VASRD rating for disability at the time the CI is permanently separated at removal from TDRL.  The PEB rated the right knee condition 20% (5099-5003, degenerative arthritis).  The VA rated the right knee condition 0% citing the ROM from the VA C&P examination following removal from TDRL.  The limitation of motion at the TDRL examination and the VA C&P examination does not attain a minimum rating under the respective codes for limitation of flexion or extension (5260, 5261).  There was no ligamentous instability or dislocated meniscus to support minimum ratings under the respective codes (5257, 5278).  There was functional loss (§4.40) and painful motion (§4.59) with use supporting a 10% rating.  The PEB adjudicated 20% rating using the VASRD diagnostic code for degenerative arthritis (5003) which provides for 20% rating with X-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations (in the case of the CI just one major joint was involved).  The Board also considered an analogous rating under the diagnostic code for impairment of the femur (5255) noting the condition involved the distal femur at the knee joint.  Code 5255 principally relates to fractures of the femur, however the osteochondritis dessicans was considered to represent a fracture at the joint surface.  There was not proper healing of the involved site analogous to malunion.  The ratings consider disability of the knee as slight (10%), moderate (20%) or marked (30%).  All Board members agreed the CI’s knee condition did not result in more than moderate occupational impairment providing no benefit to the CI.  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 adjudications for the right knee osteochondral defect with medial femoral compartment arthrosis of the right knee at TDRL placement and TDRL removal.

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.  In the matter of the right knee osteochondral defect with medial femoral compartment arthrosis condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication at both TDRL placement and TDRL removal.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120805, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

SAF/MRB

Dear XXXXXXXXXXXXXX:

	Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. § 1554a), PDBR Case Number PD-2013-01133

	After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  Accordingly, the Board recommended no re-characterization or modification of your separation.

	I have carefully reviewed the evidence of record and the recommendation of the Board.    I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  Accordingly, I accept their recommendation that your application be denied.

							Sincerely,

							

Attachment:
Record of Proceedings