RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01524
BRANCH OF SERVICE:  Army	BOARD DATE:  20150115
SEPARATION DATE:  20040818

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Infantryman) medically separated for right knee pain and bilateral thigh weakness.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right knee pain and bilateral thigh weakness conditions, characterized as “Patellofemoral joint syndrome right knee” and “patella tendonitis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB. The Informal PEB (IPEB) adjudicated “right knee pain and bilateral thigh weakness” as unfitting, rated 0%.  The CI made a formal appeal, which affirmed the PEB finding(s) and was medically separated.

CI CONTENTION:  “Right knee, rhabdomyolisis.”  [sic]

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. 

RATING COMPARISON:

Service Recon IPEB – Dated 20040326	VA - Based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain and Bilateral Thigh Weakness	5099-5021	0%	Right Knee Condition	5260	NSC	STR	
Other x 0 (Not in Scope)	No other items in scope		
Combined:  0%	Combined:  --%	
Derived from VA Rating Decision (VARD) dated 20070801 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Knee Pain and Bilateral Thigh Weakness Conditions.  The STR indicated the CI developed rhabdomyolysis (muscle breakdown) marked by dark urine (positive for blood in the urine) and lower extremity pain after performing intense exercise (“starbursts”-- squats and jumps) and was hospitalized from 27 July 2002 to 2 August 2002.  Pain in the right knee developed along with a right quadriceps (muscles of the thigh) burning sensation post discharge on 8 August 2002.  Physical therapy (PT) was instituted, but a clinic note dated 21 August 2002 raised the possibility of a meniscal injury due to excessive activity based on tenderness on the joint line, a positive significant crepitus (grinding sensation or clicking sound) and a positive patellar grind test (to detect the presence of a knee joint disorder).  On 23 August 2002, an orthopedic consultant examined the CI, who reported “I don’t have too much pain in my quads anymore they just get tired.” The CI had a normal gait, slight tenderness of the right and left quadricep tendon areas and no crepitus, joint line tenderness, or laxity of the right knee.  The right knee range-of-motion (ROM) was full and the quad strength was 4/5 with some pain on contraction.  The left knee examination was unremarkable. Six additional months of PT afforded no improvement.  Pain with prolonged walking, standing and stairs climbing was present; a McMurray test (to determine a meniscal (cartilage) tear) was positive; and, a nonsteroidal anti-inflammatory medication (Naprosyn) was prescribed on 22 October 2002.  A magnetic resonance imaging of the right knee dated 31 October 2002 revealed a mild intra-articular effusion with no meniscal “changes evidenced” and was otherwise unremarkable.  At a follow-up visit in November 2002 the diagnosis of patellofemoral syndrome (knee pain coming from contact of the back of the knee cap with the thigh bone) was raised.  A physician’s assistant noted in December 2002 the CI wanted to change his MOS and stated that his right knee hurt “most with stairs, running, prolonged sitting, prolonged standing or long walking” and recorded a full ROM, no effusion, tenderness of the quadriceps tendon area, and lateral side of the patella (knee), patellofemoral compression pain, and no laxity.  An orthopedic consultation in March 2003 noted a ROM to 130 degrees (Normal 0 degrees-140 degrees) and no laxity bilaterally, but the impression was muscle atrophy after rhabdomyolysis; and, the consultant recommended continued conditioning as needed.  A note dated 3 March 2003 indicated right knee relative weakness 4+/5.  A physician directed MEB was ordered on 5 May 2003 when the CI indicated that he was still unable to run more than two blocks without pain, perform the physical training test, or carry a backpack more than 30 pounds without pain.  A permanent L3 profile was issued on 5 May 2003 for chronic knee pain/patellofemoral syndrome with the aforementioned limitations.  

An orthopedic consultation on 3 June 2003 noted that “rhabdo” (rhabdomyolysis) had completely resolved and patellar tendinitis (knee cap tendon inflammation) was the only issue.  Continued medication and PT were offered as was surgery, but the CI refused the offers.  A MEB narrative summary (NARSUM) also dated 3 June 2003 noted the CI usually had 6-7/10 pain (10 being the worst pain).  Examination of the right knee revealed flexion was 124 degrees with no thigh atrophy with patellofemoral compression pain and crepitus.  There was slight anterior laxity, but no laxity in other directions.  Give way of the right knee and weakness appeared to be from pain guarding rather than actual muscle weakness.  A note dated 16 December 2003 indicated surgery (no operative report was in the STR), a “right knee scope with a PTL [partial] LAT [lateral] meniscectomy” (cartilage removal), was performed on 25 July 2003 with occasional mild swelling and pain on hills and stairs postoperatively.  Examination of the right knee demonstrated a trace effusion (fluid collection), ROM 0-115 degrees, minimal tenderness of the lateral collateral ligament, and no laxity.  No further surgery was indicated at that time for the diagnosed patellofemoral pain syndrome; and, physical therapy and home therapy were to be continued.  A second MEB NARSUM dated 16 December 2003, 5 months post meniscectomy, reiterated the aforementioned details of the CI’s history and examination and noted the CI’s post-operative recovery was fairly uneventful, but his pain was increased in severity, but not as constant as prior to surgery and was still located in the peripatellar (around the knee cap) area. The flexion ROM was 115 degrees.  Plain films were unremarkable.  The commander’s statement dated 4 February 2004 indicated the CI was reassigned from an infantryman duty to an ammo specialist that required him carrying and lifting heavy loads, and he would have considerable difficulty performing basic soldiering skills due to chronic knee pain and profile limitations.  The temporally remote (46 months post-separation ) VA Compensation and Pension examination was reviewed, which indicated the CI had right knee surgery for a torn anterior cruciate ligament and an additional meniscus tear in June 2007; however, it offered very limited or no probative post-separation evidence of any significant value.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB combined the right knee and bilateral thigh weakness conditions under a single disability rating, coded analogously to 5021, which is rated using code 5003.  The approach by the PEB seemed to reflect its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications.  Although the VASRD §4.71a permits combined ratings of two conditions under 5003, it allows separate ratings for separately compensable conditions.  The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition could be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.

Right Knee Condition.  The IPEB held on 8 March 2004 applied a 0% rating for the right knee pain and bilateral thigh weakness using code 5099-5021 (myositis), based on the findings of the NARSUM of 3 June 2003, however, the CI underwent surgery on 27 July 2003, the results of which were not addressed by the IPEB.  The CI appealed to the IPEB to consider his desire for reclassification in another MOS.  The board affirmed their previous decision, indicating that the CI’s “rebuttal did not provide information as to any new diagnosis or changes in your currently rated disability.”  A Formal PEB was scheduled, however, the CI subsequent withdrew his request for it.  The VA did not assign a rating in the absence of an examination but used code 5260 (leg limitation of flexion) for the right knee condition.  The knee condition is separately unfitting and was explicitly addressed in the profile and commander’s statement and also was the condition warranting referral to the MEB after the rhabdomyolysis resolved.  Although the ROM proximate to separation was less than normal, it was not ratable IAW VASRD 4.71a using code 5260; and, there was no joint instability to support code 5257 or X-ray evidence to support 5003, however, application of a 10% rating using code 5003 or the analogous code 5003 can be considered based on “quadriceps guarding secondary to pain.”  Be that as it may, code 5259 (cartilage removal) clearly addresses the CI’s partial meniscectomy for a 10% rating.  A higher rating using code 5258 cannot be supported in the absence of dislocated cartilage and frequent “locking.”  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 10% for the right knee condition.

Bilateral Thigh Weakness.  The Board considered whether bilateral thigh weakness, having been de-coupled from the combined PEB adjudication, remained itself unfitting as established above.  Members agreed that, based on the above evidence, there was a questionable basis for arguing that it was separately unfitting.  The well-established principle for fitness determinations is that they are performance-based.  The Board could not find evidence in the commander’s statement or elsewhere in the STR after the rhabdomyolysis completely resolved that documented any significant interference of bilateral thigh weakness with the performance of duties at the time of separation, nor were any physical findings documented by the MEB or VA examiner, albeit almost 3 years after separation, which would logically be associated with significant disability.  It should also be noted that there is insufficient objective evidence in support of a compensable rating for bilateral thigh weakness, even if were conceded as unfitting.  After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from bilateral thigh weakness was integral to the CI’s inability to perform his MOS; and, accordingly the Board cannot recommend a separate rating for it.

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 5259 IAW VASRD §4.71a.  In the matter of the bilateral thigh weakness condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB rating adjudication. 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	5259	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130913, 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, AR20150010411 (PD201301524)

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