RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01316
BRANCH OF SERVICE:  Army 	BOARD DATE:  20140919
SEPARATION DATE:  20011116

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PVT/E-2 (Basic Trainee) medically separated for chronic lower extremity pain.  The 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 lower extremity pain, characterized as “bilateral proximal tibial stress fractures, symptomatic on the right,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic lower extremity pain, due to bilateral proximal tibial stress fractures, symptomatic on the right” as unfitting, rated at 0%, citing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION: “THE MEDICAL STAFF AT IRELAND ARMY COMMUNITY HOSPITAL IN FORT KNOX, KY FAILED TO PROVIDE ME WITH THE NECESSARY MEDICAL CARE IN ORDER TO DETECT DAMAGE DONE TO MY ACL AND MENISCUS BESIDES BILATERAL STRESS FRACTURES. MRI WAS NEVER OFFERED WHICH MORE THAN LIKELY WOULD HAD CLEARLY SHOWN THE WHOLE SPECTRUM OF MY INJURIES. THIS IS WHY I BELIEVE, I WAS TREATED UNFAIRLY WHEN GIVEN ONLY A 10%.  AT THE PRESENT, MY CONDITION HAS ONLY WORSENED, MAKING MY DAILY LIFE A VERY PAINFUL ONE BECAUSE I WASN'T PROPERLY DIAGNOSED THEN.” The CI also writes “I never denied laxity or giving way of the knee, much less twisting it.  I showed up to the appointments with a swollen knee which was cause during a running exercise.  (As stated on examination’s records). Also, pain level was and is significant & constant.  High dosis of pain killers is required daily.  Examiner’s findings were biased and careless.  He showed a lot of discontent when treating because he said that: “I was faking my conditions in order to go home and that if that’s what I wanted I should get kick out.”

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 chronic lower extremity pain is addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  Any conditions 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.

The Board acknowledges the impairment with which the CI’s service-connected condition continues to burden him but notes the Disability Evaluation System has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board further acknowledges the CI’s assertions that his disability disposition was not properly attended to by medical personnel.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the Board for Correction of Military Records and/or the United States judiciary system.

RATING COMPARISON:  

Service IPEB – Dated 20011029	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	

Chronic Lower Extremity Pain
	5099-5003	0%	S/P Stress FX of the R Proximal Tibia	5299-5262	10%	STR	
			S/P Stress FX of the L Proximal Tibia	5299-5262	0%	STR	
Other x 0 (Not in Scope)	Other x 0		
Combined:  0%	Combined:  10%	
*Derived from VA Rating Decision (VARD) dated 20020117 (most proximate to date of separation)

ANALYSIS SUMMARY:  The PEB combined left and right tibial plateau stress fracture conditions as a single unfitting condition coded 5099-5003 and rated at 0%.  The PEB’s approach likely reflected its judgment that the constellation of conditions was unfitting, not that each condition was separately unfitting.  The Board’s initial charge was to determine if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  The Board does not recommend separate codes and ratings in this circumstance unless members agree that one or more conditions were separately unfitting independently of overall effect.  In support of a recommendation for two or more separation ratings derived from such PEB adjudication, members must be satisfied based on a preponderance of the evidence that each condition recommended for separate rating would have independently resulted in MEB referral and a PEB finding that the member was unfit due to physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.

Chronic Lower Extremity Pain.  According to service treatment records (STRs), the CI presented for care of right knee pain after a hard landing during basic training in July 2001.  An orthopedic evaluation on 7 August 2001 recorded onset while running and experienced a popping sensation.  On examination, tests for instability and meniscus problems were negative.  A nuclear bone scan obtained on 17 August 2001 demonstrated increased tracer uptake in both knees at the medial tibia, right more than left.  The radiologist concluded there was “suggestion of an early right medial tibial plateau stress fracture.”  According to STRs there were no left knee symptoms.  A primary care clinic examination on 28 August 2001 noted a positive McMurray sign on the right knee, suggestive of a medial meniscus tear.  Follow up with orthopedic surgery on 30 August 2001 noted complaint of pain with crepitus and on examination there was full active range-of-motion (ROM).  There was tenderness at the medial joint line and pain with McMurray testing but without any associated click (presence of click with the maneuver would be more indicative of a meniscus tear).  Tests for ligamentous instability were negative.

The orthopedic MEB narrative summary (NARSUM) dated 2 October 2001 noted the right knee was symptomatic but not the left.  The right knee examination demonstrated full active ROM, without swelling.  Strength was normal.  There was tenderness of the medial joint line of the right knee.  The McMurray test was noted to cause pain but not clicking.  No pain was induced while executing a squat or duck walking (provocative maneuvers for meniscus tears).  There was no ligamentous instability.  

There was no VA Compensation and Pension (C&P) examination proximate to separation.  The first VA C&P examination was in May 2007, over 5 years post-separation.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the chronic lower extremity pain at 0% with application of the USAPDA pain policy.  The VA rated the right proximal tibial stress fracture at 10% and the left proximal tibial stress fracture at 0% (each coded 5299-5262).  The Board first considered whether the left tibial plateau stress fracture condition and right tibial plateau stress fracture condition, when considered independently, were each separately unfitting for continued military service and therefore warranted separate ratings.  The Board noted that the left knee and tibia were asymptomatic and that the bone scan was not interpreted by the radiologist as showing a stress fracture of the left tibial plateau of the knee.  The Board concluded there was no impairment of the left tibia or left knee that would be considered unfitting for continued military service.  Members agreed therefore, that the left knee condition was not reasonably justified as separately unfitting and accordingly it cannot be recommended for separate disability rating.  

All members agreed however that the symptomatic right knee tibial plateau stress fracture was unfitting.  The right proximal tibial stress fracture was of the tibial plateau, the surface of the tibia at the knee joint and therefore the Board considered its rating recommendation based on VASRD diagnostic codes for the knee as well as the tibia.  There was no limitation of knee motion to support a minimum rating under the VASRD diagnostic codes 5260 or 5261 (limitation of motion codes).  Although there was concern the CI may have had a torn meniscus, there was no evidence of a dislocated meniscus with frequent locking or effusion to support a minimum rating under VASRD diagnostic code 5258 (dislocated meniscus).  There was no evidence of ligamentous instability to support a minimum rating under the code 5257 (instability).  

The Board noted the anterior cruciate ligament tear requiring surgery 5 years after separation.  Examination in May 2007 demonstrated a markedly abnormal Lachman test (showing ligamentous instability) which had been normal (no ligament instability) prior to separation.  The diagnostic code for impairment of the tibia and fibula indicate disability due to non-union or malunion, neither of which was present.  Although an uncomplicated stress fracture is usually expected to resolve completely, the Board noted the possible injury to the meniscus.  Therefore all Board members agreed a 10% rating was supported based on VASRD §4.40 (functional loss).  The Board noted granting a separate rating for functional loss due to the possible meniscus injury and the tibial plateau stress fracture would be based on the same impairment and is prohibited by VASRD §4.14 (avoidance of pyramiding).  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separately unfit determination with a disability rating of 10% for the right knee tibial plateau stress fracture condition (5299-5262) and recommends a not unfit determination for left knee condition.

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, PEB reliance on the USAPDA pain policy for rating the bilateral lower extremity pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the right knee pain with tibial plateau stress fracture condition, the Board unanimously recommends a separately unfitting disability rating of 10% coded 5299-5262 IAW VASRD §4.71a.  In the matter of the left tibial plateau condition, the Board unanimously agrees that it cannot recommend a separately unfit determination for additional disability rating.  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	
Right Knee Pain With Tibial Plateau Stress Fracture	5299-5262	10%	
Left Knee Tibial Plateau Condition	Not Unfit		
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130905, 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 XXXXXXXXXXXXXXX, AR20150004177 (PD201301316)

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 recharacterization 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:

Encl						     

CF: 
(  ) DoD PDBR
(  ) DVA