RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX		CASE:  PD 2013-01142
BRANCH OF SERVICE:  Army 	 SEPARATION DATE:  20060831

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5, Human Resource Specialist, medically separated for a left knee condition.  The Informal PEB adjudicated “chronic left knee pain…s/p anterior cruciate ligament repair x 2 with residuals of a 1A lachman…” as unfitting, rated 0%.  

CI CONTENTION:  The PEB made unmistakable errors when rating his knee.  The applicant’s complete submission is at Exhibit A.  

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.  In addition, the Secretary of Defense Mental Health Review Terms of Reference directed a comprehensive review of Service members with certain mental health (MH) conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The MH condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.

RATING COMPARISON:  
   
Service IPEB – Dated 20060711	VA - (5.5 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Pain	5099-5003	0%	Left Knee Strain	5257	0%	20070213	
Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%		
Mood Disorder	Not Ratable	Major Depression	9434	30%	20070213	
		Mood Disorder	9435	NSC	20070213	
Other x 0 (Not in Scope)	Other x 16	20070213	
Rating:  0%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20070306 (most proximate to date of separation [DOS]).   

ANALYSIS SUMMARY:   

Left Knee Condition.  The NARSUM noted the CI in 1999 fell and injured his left knee while playing basketball.  The NARSUM recorded that In February 2000 the CI underwent hamstring anterior cruciate ligament (ACL) reconstruction and sustained a repeat injury in 2002.  In 2001, he had ACL reconstruction to his left knee and in 2003 he had allograph reconstruction of the left knee ACL.  The CI continued to report pain and knee instability with normal daily activities.  Orthopedic treatment entries identified one single surgical procedure prior to 2003 (Feb. 2001). Orthopedic consultation dated 12 May 2003 noted the CI’s report of sustained pain around the surgical incision and graft following his 2001 surgery.  The CI indicated that the pain was accompanied by numbness and sensitivity that radiated down to the lateral aspect of his left leg.  There was occasional shooting pain and a popping sensation.  There was occasional catching underneath the kneecap; however, there was no locking or giving away of the knee.  Physical examination recorded normal gait, his left quadriceps were slightly smaller compared to the right, and the surgical scar was well-healed, with no evidence of inflammation.  There was tenderness and increased sensitivity over the medial aspect in the area of the graft, and no significant lateral joint line tenderness.  Range-of-motion (ROM) flexion of the left knee was normal.  Tests of ACL laxity (Lachman and Pivot) were positive.  The physician diagnosed postoperative pain syndrome of the left knee.  The CI had consultations with pain management and physical therapy; however, his report of left knee pain continued.  The CI noted he was not inclined to follow some of the recommendations offered at the pain clinic.  On 15 March 2004, the CI reported left knee instability and was assessed with left knee ACL deficiency and medial meniscal tear.  The physician noted magnetic resonance imaging (MRI) of the left knee showed near complete ACL deficiency and a questionable meniscal tear.  On 31 March 2004, the CI underwent a second surgery involving ACL allograft reconstruction with partial medial meniscectomy (near total), without complication.  The CI was non-attendant to the majority of his scheduled physical therapy visits.  Orthopedic visit, 2 months post-surgery, recorded the CI was doing well, had full ROM of the left knee and no evidence of knee instability.  At the NARSUM, 26 April 2006, approximately 2 years after surgery and 4 months prior to separation, physical examination of the left knee recorded ROM flexion to 120 degrees, tests for medial and lateral ligamentous instability were negative; however, tests for ACL instability were positive Lachman and Anterior Drawer).  Surgical incisions were well-healed, and neuromuscular functions were intact.  There was no evidence of vascular compromise.  The physician recorded tenderness to palpation, normal strength, and noted the CI, had full active range of motion and the left knee was stable in all ligaments except the ACL.  The examiner assessed “continued mild to moderate left knee pain and instability affecting his activities of daily military life.”  At the C&P evaluation, approximately 6 months after separation, the CI reported constant left knee pain including pain underneath the kneecap, described as sharp, dull, aching, and burning.  Pain intensity was a 3/10 at rest, and up to a 10 on ambulation.  The CI also reported right knee pain.  He noted treatment of his pain involved rest and not any particular medication.  His gait was normal and he ambulated without assistive devices.  There was no report of knee locking or instability.  Physical examination recorded flexion ROM bilaterally to 140 degrees.  Tests of ligament instability were negative, and sensation was intact.  Chronic bilateral knee strain was diagnosed.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of chronic left knee pain 0% analogous to degenerative arthritis code of 5299- 5003 citing no significant loss of ROM.  The VA rated the condition of left knee strain at 0% coded 5257.  A compensable rating under the 5003 code requires signs and symptoms of limitation of motion (swelling, painful motion), not supported by the evidence.  On review of the records, the Board noted the ROM was not compensable under code 5260 or 5261.  Code 5258 was not applicable since there were no objective evidence of frequent episodes of locking and effusions to support the use of that code.  Although the NARSUM physician recorded mild to moderate left knee pain and instability, the Board also noted the physician specifically stated the CI had full ROM with stable lateral ligaments. The C&P physician noted the left knee ligaments were stable.  The Board concluded the condition was not ratable under code 5257 (recurrent subluxation or lateral instability) since there was no evidence of frequent subluxation or lateral instability.  The Board considered the 5259 code (cartilage, semilunar, removal of, symptomatic), which provides a 10% rating for symptoms such as persistent pain, effusion, or limitation of motion.  Painful motion was not observed at the NARSUM or the C&P examination, and there was no recorded limitation of motion due to pain. Effusions were not among clinical findings during the NARSUM and C&P examination.  The NARSUM examiner noted the CI would continue to have mild to moderate pain, and the VA examiner noted the left knee pain was relieved by rest alone.  After deliberating, Board members agreed the condition was compensable under the 5259 code for persistent pain. The Board adjudged that the record did not support the application of VASRD §4.40 functional loss, or VASRD §4.59, painful motion.   
 There were no other applicable codes to consider.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% coded 5259 for the left knee pain condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that sleep apnea and mood disorder 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 Board first considered the mental health condition.  Records were reviewed for evidence of inappropriate changes in diagnosis of the mental health condition during processing through the military disability evaluation system (DES).  The evidence of the available records showed the diagnoses of mood disorder due to orthopedic diagnoses, attention deficit hyperactivity disorder, and depression were rendered during processing through the DES.  The MEB recorded the single diagnosis of mood disorders which was forwarded to the PEB.  The condition of depression is subsumed under the condition of mood disorder NOS, and therefore, not considered an additional diagnosis.  The diagnosis of ADHD was listed in the profile; however, the condition do not constitute a physical disability IAW DoDI 1332.38 E5.1.3.4 and hence, not ratable.  Therefore, this applicant therefore did not appear to meet the inclusion criteria in the Terms of Reference (TOR) of the Mental Health Diagnosis Review Project.  The Board undertook a careful review of the record in evidence and noted the absence of mental health treatment records.  At the psychiatric addendum, the CI reported a history of ADHD diagnosed in 2002, treated with stimulants and improved.  Beginning in 2006 he was diagnosed with an adjustment disorder, and later diagnosed with depression due to his continuing medical problems.  He received treatment with an antidepressant medication and improved.  The CI had symptoms of fatigue, decreased motivation, depressed mood, irritability, loss of pleasure, and fluctuation of appetite and weight.  Additionally he reported poor focus, poor concentration, distractibility, and poor organization.  The mental status examination was unremarkable, and a Global Assessment of Functioning (GAF) score of 75 (transient, and expectable reactions to stressors) was assessed.  The psychiatrist recorded the primary mental health diagnosis of mood disorder due to medical condition, specifically orthopedic diagnoses as “manifested by insomnia, depressed mood, guilt, anhedonia, fluctuating appetite and weight, decreased motivation, decreased concentration, irritability, fatigue, and lack of energy.”  The psychiatrist opined due to these symptoms the CI also met criteria for MDD; however, did not list it as a diagnosis.  The Board noted the condition of MDD was assessed at the VA; however, it was not clear if DSM-IV diagnostic criteria were utilized in assessing the condition.  The Board acknowledged the VA’s assessment of MDD, and the NARSUM examiner’s opinion that the CI met criteria for MDD; however, there was insufficient evidence that DSM-IV-TR diagnostic criteria were met, specifically criterion D.  Criterion D requires that the symptoms are not due to a general medical condition.  The Board members concluded the diagnosis of mood disorder secondary to general medical condition was the appropriate diagnosis at the time of separation.  The Board next considered whether any mental health condition, regardless of diagnosis was unfitting at the time of separation.  The commander’s statement noted the CI had difficulty focusing on tasks and instructions due to insomnia and depression, stated as a concern of the command.  However, the Board noted the CI was diagnosed with ADHD in 2001, and the 2003 and 2004 NCOER recommended promotions.  Issues with focusing, insomnia, irritability, decreased motivation, or fatigue, were not recorded.  The 2005 NCOER noted the CI had completed 15 credit hours of college coursework, and that he performed the duty of personnel asset inventory twice, “flawlessly, with no errors.”  Although, the conditions of depression and ADHD were profiled there was no indication from the record that any mental health condition significantly interfered with satisfactory duty performance.  The commander noted he had been a great NCO “despite his diminished capabilities” and wanted him to remain a part of his unit but supported the medical decisions made not to retain him.  The Board concluded that there was not a preponderance of evidence that any mental health condition rose to the level of being unfitting at the time of separation and therefore none were subject to service disability rating.  

The Board next considered the contended condition of sleep apnea.  The polysomnogram (overnight sleep study) in 2005 recorded no significant sleep apnea, or other significant sleep pathology that could explain the CI’s report of severe daytime sleepiness; however, CPAP was recommended. The physician noted the reason for the CPAP was “disordered breathing and severe hypersomnolence” and not obstructive sleep apnea syndrome (p.365).  The condition of sleep apnea was not specifically profiled; however, the CPAP equipment was recorded as a medical condition and his profile noted electric power was required for his CPAP machine.  The commander noted he had difficulty secondary to insomnia.  The Board noted the CI was prescribed amphetamine and Prozac both are associated with nighttime insomnia, thereby, interfering with normal sleep architecture.   The Board members reviewed the NCOERs referenced above and concluded there was no performance based evidence from the record that the sleep apnea 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 a change in the PEB fitness determination for the conditions of sleep apnea and mood disorder due to general medical condition, therefore 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 Chronic Left Knee Pain condition, the Board unanimously recommends a disability rating of 10% coded 5259 IAW VASRD §4.71a.  In the matter of the contended mood disorder and sleep apnea 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Chronic Left Knee Pain	5259	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130815, 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, AR20160001611 (PD201301142)

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 re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA