RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01193
BRANCH OF SERVICE:  Army	BOARD DATE:  20141209
SEPARATION DATE:  20050615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Petroleum Supply Specialist) medically separated for unstable right knee.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3 and referred for a Medical Evaluation Board (MEB).  The unstable right knee condition, characterized as “persistently unstable right knee, S/P anterior cruciate ligament (ACL) reconstruction and meniscal repair with chronic pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “unstable right knee” as unfitting, rated 20% with likely application Department of Defense Instruction (DoDI) 1332.39 /VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please see DDF 294” 

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 unstable right knee condition is addressed below.  In addition, the Secretary of Defense 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 applicant was notified that he may meet the inclusion criteria of the MH Review Terms of Reference.  The MH 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 20050428	VA -  based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Unstable Right Knee	5257	20%	Unstable Right Knee Status Post ACLU Reconstruction and Meniscal Repair X2	5257	0%	Failure to Report
STR	
Other x 0 (Not in Scope)	Other x 0 (Not in Scope)		
Combined:  20%	Combined: 0%	
Derived from VA Rating Decision (VARD) dated 20070412 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Unstable Right Knee Condition .  The CI injured her right knee playing flag football in October 2001.  She sustained two additional injuries over the following 2 years, the second injury was the most significant with pain, swelling and difficulty ambulating.  Orthopedic entry dated 5 September 2003 noted a 2-year history of recurrent swelling and giving away of the right knee.  On 7 October 2003, the CI underwent right knee ACL reconstruction and medial meniscal repair, after the magnetic resonance imaging demonstrated ligament tear.  In August 2004, a second meniscal repair was performed.  After these procedures, the CI was able to ambulate without an assistive device.  Physical therapy entry dated 6 October 2004 noted the CI had a slightly antalgic gait (right) and had tenderness to palpation (TTP) along the medial joint line.  Right knee range-of-motion recorded flexion to 125 degrees (140), with mild swelling and evidence of right quadriceps atrophy compared to the left.  Orthopedic examination performed on 9 November 2004 recorded a well-healed surgical incision and no knee instability.  The CI was able to ride a bicycle; however, the physician noted she needed quadriceps rehabilitation to strengthen the muscles. The physical exam findings were TTP along the medial joint line, positive (1+) anterior drawer test and 2A Lachman.  ROM recorded flexion to 120 degrees.  The CI participated in physical therapy (PT) and was prescribed medication for pain; however, her pain persisted.  The right knee condition was the only condition recorded on the profile; her profiled restricted all aerobic activities.  

The commander’s statement focused on the CI’s inability to perform her MOS due to the right knee injury sustained after she fell from her fuel truck in July 2004 (Iraq). The MEB narrative summary (NARSUM) exam approximately 3 months prior to separation indicated that the CI continued with right knee pain despite aggressive PT and orthopedic care.  She had pain with climbing stairs, pain at night and pain with sitting for long periods of time.  Standing for a long period caused increased swelling and pain.  Her knee gave way in a variety of motions, such as climbing on and off vehicles and when wearing any loadbearing gear.  Physical exam findings recorded mild effusion, reproducible snapping with deep flexion, medial joint line TTP and mild crepitance.  A Lachman 2B was recorded.  The incision had healed.  Neuromuscular examination was absent.  The physician opined the CI would encounter the same physical challenges in civilian employment given her profession.  Pain was considered constant and moderate.  The diagnosis of persistently unstable right knee, status post ACL reconstruction and meniscal repair times two was recorded.  The physician opined due to residual instability of the knee and musculoskeletal injury the CI failed retention standards.  Weight bearing right knee radiographs in February 2005 (not among records) reportedly showed “no acute or active bony abnormality and prior ACL reconstruction with normal position and alignment of components of the procedure.”  The CI was non-attendant for the scheduled VA Compensation and Pension examination.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition at 20% coded 5257.  As noted above the CI did not report to the scheduled appointment, therefore, a non-compensable (0%) was assigned.  The rating of 20% under the 5257 code requires evidence of moderate lateral instability or moderate recurrent subluxation.  30% requires evidence of severe symptoms.  The Board agreed that no rating for the knee condition could be recommended under ROM criteria.  The MEB NARSUM recorded clinical findings consistent with mild degree of laxity of the ligament.  Although the examiner recorded knee instability during certain activities, treatment records in the 9 months prior to separation indicated pain was the most reported symptom.  The examiner noted the condition was stable and recorded good prognosis with limited physical demands on the knee.  The Board agreed, the CI had some instability but used no assistive devices.  There was no evidence of recurrent falls, visit to the emergency room related to falls and her gait was mildly antalgic, not because of instability but because of pain.  There was one entry in January 2005, 5 months prior to separation that recorded the CI’s report that the knee felt “unstable at times.”  The Board unanimously agreed that the condition was functionally mild, given the reports of only giving out of the knee “at times,” and the findings of only mild instability on quantitative clinical testing.  The Board concluded the evidence in considering the 5257 code supported only the rating for mild impairment due to recurrent lateral instability.  The Board found no other codes for consideration.  The Board next agreed that the record in evidence also supported a rating of 10% for painful motion IAW §4.59 and §4.40 (functional loss); however, concluded there was no additional benefit to the CI when rated dually, and therefore recommends no change to the PEB adjudication of the right knee condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that any condition the condition was 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 reviewed the records for evidence of inappropriate changes in diagnosis of MH conditions during processing through the Disability Evaluation System (DES).  The evidence of the available records showed the diagnosis of depression was rendered during processing through the DES.  The MEB DD Form 2208 recorded the diagnosis of depression and referenced the CI had received counseling and anti-depressant medication in the past.  The Board undertook a careful review of the treatment records in evidence and was unable to find any MH evaluations prior to separation.  Primary care two-item depression screen dated 4 November 2004 recorded “No” responses to presence of depressive symptoms over past month, and one month later recorded “Yes” responses.  Primary care entry dated 16 December 2004 recorded the diagnosis of depression and noted the CI had trouble sleeping and a reduced appetite.  She had felt “down” since returning from Iraq in July 2004 secondary to knee injury.  An anti-depressant was prescribed.  There were no additional entries related to MH treatment.  

The SRP agreed the diagnosis of depression was eliminated from the MEB, and therefore, not adjudicated by the PEB.  The Board concluded a MH diagnosis was eliminated during that process.  This applicant therefore did appear to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  However, there was insufficient evidence to support that the CI met DSM-IV TR diagnostic criteria for depression or any Axis I condition at the time of separation.  The Board noted the absence of documentation in the service treatment record of impairment due to a MH condition such as: hospitalizations, emergency care or loss of duty time related to MH or that MH symptoms contributed to an unfit determination.  No MH condition was profiled or implicated in the commander’s statement. There was no performance based evidence from the record that a MH condition significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, Board members agree that no MH condition rose to the level of unfitting 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 unstable right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended MH condition, the Board unanimously recommends no 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130820, 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 XXXXXXXXXXXXXXXXXXXX, AR20150007588 (PD201301193)

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