RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX 	CASE:  PD-2013-01433
BRANCH OF SERVICE:  Army  	BOARD DATE:  20150817
SEPARATION DATE:  20041115

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Field Artillery Surveyor) medically separated for chronic right knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “S/P ACL [anterior cruciate ligament] reconstructive surgery” and “rotator cuff tear,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “chronic right knee pain, status post reconstructive surgery X2” as unfitting, rated 0% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  His 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 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. 

RATING COMPARISON:   

IPEB - Dated 20040922	VA* - (~2 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain…	5099-5003	0%	Status Post ACL Reconstructive Surgery X2, Right Knee	5259	10%	20050114	
Rotator Cuff Tear	Not Unfitting	Degenerative Joint Disease, Right Shoulder	5010	20%		
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 7	
RATING:  0%	RATING:  40%	
*Derived from VA Rating Decision (VARD) dated 20050404 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Knee.  The Service treatment record (STR) indicated that the CI originally injured his right knee while playing basketball in October 1998 and underwent surgical repair of his ACL in February 1999.  There was a void of STR clinical documents from late 1999 to mid-2002 where his knee pain worsened.  A radiologic work-up revealed expected surgical presence without additional abnormality.  New onset of give-way symptoms coupled with ongoing pain resulted in a revision surgery of the previous ACL repair in December 2003.  Seven months post-revision surgery; the CI’s examination revealed a stable knee with radiographically identified properly placed implants within the right knee.  In July 2004 the CI was placed on permanent profile with the diagnosis of right knee ACL reconstruction and was referred to a MEB.  At the NARSUM examination (approximately 3 months prior to separation), the CI reported constant right knee pain and endorsed an inability to run.  His examination revealed near full ROM of 0-130 degrees (normal = 0-140) and firm stability.  Strength and neurovascular status was normal.  There was no comment in regard to painful motion.  His diagnosis was status post ACL reconstructive surgery.  The commander’s statement indicated the inability to perform MOS duties with implication to his right knee condition.  

At the VA Compensation and Pension (C&P) examination (2 months after separation), the CI reported 6/10 right knee pain aggravated with prolonged standing, walking, and stair climbing.  He reported being independent with his activities of daily living.  “He does limited yard work because he cannot bend and get on his knees”  “He uses the chair arms to push up and down to get out of the chair.”  His examination revealed a slowed gait with the assistance of a cane as well as the right knee immobilized in a removable brace.  His ROM was decreased at 0-92 degrees with painful motion.  Moderate amount of edema was present in the right knee.  Repetitive motion was noted to decrease function of the right knee, but no range of decrement was stated in the record.  His diagnosis was listed as right knee ACL tear times two; status post-surgery with residuals.  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.

Right Knee ROM
(Degrees)	MEB ~3 Mo. Pre-Sep	VA C&P ~2 Mo. Post-Sep	
Flexion (140 Normal)	130	92	
Extension (0 Normal)	0	0	
Comment	-	painful motion; edema	
§4.71a Rating	0%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under an analogous 5003 code (degenerative arthritis) citing the absence of functional loss or instability, whereas the VA assigned a 10% rating under code 5259 (cartilage removal; symptomatic) citing limited and painful motion.  Board members first acknowledged that clinical disparity between the MEB and VA examination could have significant implications regarding the Board's rating recommendation.  The Board thus carefully deliberated its probative value (PV) assignment to these varying evaluations, and reviewed the Service file for corroborating evidence in the 12-month period prior to separation.  All Board members agreed that the near similar time reference to Service separation coupled with detailed PE coverage, dictated near equal PV across both exams.  While there was no evidence of compensable limitation of motion, the Board agreed that a 10% rating was supported under the PEB’s analogous 5099-5003 coding pathway by sufficient evidence of painful motion IAW VASRD §4.59, or §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled”, and clearly, the persistence of painful motion as described by the VA was such the case in this condition.  Lastly, although considered, codes 5258 and 5262 were not justified at a higher level in the presence of a stable, non-locking knee where the boney pathology did not involve the tibia or fibula.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right knee condition. 

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right rotator cuff tear was not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The rotator cuff tear was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The condition was reviewed and considered by the Board.  There was no performance based evidence from the record that the rotator cuff (right shoulder) 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 rotator cuff condition 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 right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended right rotator cuff condition, the Board unanimously recommends no change from the PEB’s determination 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:  

CONDITION	VASRD CODE	RATING	
Chronic Right Knee Pain	5099-5003	10%	
RATING	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130912, 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, AR20150014864 (PD201301433)

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