RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1301667
BRANCH OF SERVICE:  Army	BOARD DATE:  20140429
SEPARATION DATE:  20040502

SUMMARY OF CASE:  Evidence indicates this covered individual (CI) was an active duty SPC/E-4 (15T, Helicopter Repairer) medically separated for bilateral knee pain.  This condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Chronic bilateral knee pain status post bilateral lateral release and chondromalacia of the left patella” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501, with no other conditions submitted by the MEB.  The Informal PEB adjudicated “bilateral knee pain with surgical history of bilateral releases and a finding of Grade II chondromalacia in the left side” as unfitting, rated 10%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI simply stated “Increased pain.”

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 applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health 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 Mental Health Review Terms of Reference.  The mental health 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 20040223	VA - (4 day Pre-Separation and 12 days Post-Sep) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	Residuals, s/p Lateral Release and Chondromalacia Left Patella	5099-5014	10%	20040429	
			Residuals, s/p Lateral Release Right Patella	5099-5014	10%	20040429	
Depression	Not on MEB		Depressive Disorder	9435	10%	20040514	
No Additional MEB/PEB Entries in Scope	Other x 2 (Not in Scope)		
Rating:  10%	Combined Rating:  30%	
Derived from VA Rating Decision (VARD) dated 20040817.

ANALYSIS SUMMARY:

Bilateral Knee Condition.  Treatment records indicate that on 14 September 2000 the applicant reported right knee pain without associated trauma and that the pain occurred while walking.  At the time of that evaluation he was noted to have full range-of-motion (ROM) of the right knee with tenderness to palpation.  Records were silent going forward until 5 February 2002 when the CI presented to the clinic with report of bilateral knee pain, 2/10 (on a scale of 1 to 10) with pain in the right knee greater than the left; he was prescribed an anti-inflammatory medication.  At the initial physical therapy (PT) evaluation dated 26 February 2002, the CI reported bilateral knee pain that was constant at an intensity of 2/10, aggravated by running, squatting, biking, climbing and relieved with rest.  The CI stated while on a 3.5-mile run in January 2002, his right knee locked during extension and he fell.  He was able to walk with a great deal of pain about 15 minutes later.  He noted he was not taking any medications.  On physical examination, there was no evidence of knee instability or knee locking and there was full ROM in both knees.  Pain was noted with flexion and extension of the right knee and with squatting.  Over the following few months, the CI continued to report pain on activity and was referred to the orthopedic clinic for surgical consideration.  On 21 May 2002, the applicant underwent a lateral release surgery of his right knee for the diagnosis of maltracking patella (kneecap) of the right knee.  Post-surgery PT examination of the right knee dated 10 June 2002 recorded full active ROM, palpable spasm in the right quadriceps muscles and swelling.  An orthopedic clinic entry on 18 November 2002 recorded the left knee pain, but his right knee was doing very well.  The physician recommended left knee release surgery.  Radiographs of the left knee dated 7 January 2003 were negative.  The CI underwent lateral release surgery of the left knee on 14 January 2003.  The physician noted the radiographs demonstrated lateral maltracking that was also demonstrated during the procedure.  Grade II chondromalacia (bone wear and tear) was noted in the central portion of the patella.  There were no complications.  The CI presented to the emergency room on 19 January 2003, after he reported falling on a wet floor, re-injuring his left knee.  There were no acute findings; the CI was placed on quarters, prescribed a medication for pain and referred back to the orthopedic clinic for follow-up.  The CI continued to report pain associated with prolonged activity and received narcotics and anti-inflammatory agents.  Radiographs of the bilateral knees dated 8 September 2003 demonstrated no significant findings of bone or joint abnormality, though small joint effusions (liquid buildup in the joint) were noted bilaterally.  Treatment records indicate no objective findings of knee locking, instability, gait disturbance or significant limitation in ROM.  There was one recorded orthopedic visit that noted a mild effusion of the left knee with a full ROM and good quadriceps muscle tone, and another clinic entry with mild effusion of the left knee noted; however, both were within 60 days following the respective surgery.

Commander’s statement dated 11 February 2004, 3 months prior to separation, stated the CI was not physically capable of performing his duties due to his knees and profile.  The CI had a L3 profile for bilateral knee pain with no running, no jumping, no road marching and no rucking, but allowed for walking at his own pace and distance.

The narrative summary (NARSUM) dictated 21 January 2004, performed by the treating orthopedic physician, noted the CI was initially evaluated for bilateral knee pain in early 2002 after he reported he had twisted both knees while walking.  The CI had not been able to run or bike after the release surgeries performed on each knee, so it was felt that separation from the military would be in the best interest of the CI.  The examiner noted the CI was not in pain during the evaluation.  On physical examination of the right knee, ROM was recorded as approximately 0-130 degrees and stable.  Left knee examination showed a ROM of approximately 0-120 degrees and stable.  Pain was noted in the left knee with patella grind considered to be associated with the chondromalacia seen on arthroscopy.  The physician indicated the CI had been unresponsive to PT and surgery, but had a good prognosis.  The diagnoses of chronic bilateral knee pain and chondromalacia of the left knee were recorded.
At the VA Compensation and Pension (C&P) examination on 29 April 2004, approximately 2 weeks prior to separation, physical examination recorded a normal gait, normal appearing knees and normal ROM without noted pain on motion and barely visible scars from the bilateral surgery.  The examiner emphasized the knee examinations were normal, although the CI reported intermittent pain in both knees.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral condition as a single unfitting condition at 10% under the analogous code 5099-5003 (degenerative arthritis in two major joints).  The VA, IAW VASRD §4.59 assigned a 10% evaluation to each knee under analogous code 5099-5014 for painful motion.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints.  IAW DoDI 6040.44 the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can 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 effort in this case was therefore directed at determining whether the PEB’s combined adjudication was justified in lieu of separate ratings.  A commander’s statement dated 11 February 2004, approximately 3 months prior to separation, stated the CI was not physically capable of performing his duties due to his injuries and profile.  His profile allowed the CI to walk at his own pace, carry and fire a weapon, lift up to 50 pounds, and to swim and bike for PT test.

The evidence makes clear that the left knee was associated with more disability than the right in this case.  A careful review of the records of evidence demonstrated treatment of pain in both knees, though pain was recorded in ten treatment entries involving the left knee compared to three entries for the right.  The treatment records document pain in both knees on three visits; no pain in the right knee on four visits and possibly one visit with no pain documented for the left knee.  This disparity raised the question of whether the right knee was reasonably justified as separately unfitting.  Although both knees were profiled, implicated in the commander’s statement and treated conservatively and surgically, both the NARSUM and C&P examinations demonstrated the right knee was not painful with motion, not tender to palpation, had full ROM, and had no evidence of instability or meniscal pathology.  There were no radiographic findings of right knee pathology and although the CI reported right knee locking there was no objective finding of knee locking.  The Board therefore concluded the right knee pain was milder than the left.  After due deliberation, member consensus was the evidence does not support a conclusion that the functional impairment from the right knee was integral to the CI’s inability to perform his MOS rating; accordingly, the Board cannot recommend a separate rating for the right knee.

The Board next proceeded to the rating of the left knee condition.  The NARSUM recorded pain in the left knee with patellar grind, which was judged to be secondary to the chondromalacia, though it noted overall prognosis was good.  After deliberation, the Board concluded the record supported the minimal compensable rating for left knee pain under 5003.  The Board unanimously agreed the left knee rose to a level of compensability under §4.59.  The Board was unable to find any additional codes for consideration.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board agreed the left knee was separately unfitting and recommends a disability rating of 10% for the left knee pain condition for painful motion.  Because this determination does not result in a higher rating to the benefit of the CI, though, the Board recommends no recharacterization of the PEB adjudication for the bilateral knee condition.

Mental Health Review.  The Board first reviewed the record for evidence of inappropriate changes in diagnosis of an MH condition during processing through the military Disability Evaluation System (DES).  Evidence revealed the diagnosis of depressive disorder, not otherwise specified (NOS) was the sole diagnosis rendered.  The diagnosis of depressive disorder NOS was recorded on the DD Form 2808, but was not recorded in the MEB and was not submitted to the PEB.  Therefore, this applicant appeared to meet the inclusion criteria in the Terms of Reference of the MH Review Project.  The Board next considered evidence to determine whether any MH diagnosis was unfitting, regardless of the diagnosis.  The depression was not profiled.  The CI had one incident of suicidal thoughts in the year prior to separation that had occurred in the context of marital conflict.  Treatment records recorded a diagnosis of partner relational issues and noted the applicant’s depressive symptoms correlated with learning of his spouse’s infidelity.  The CI attended less than 10 talk therapy sessions and participated in interpersonal therapy sessions to address his coping style based on his personality construct.  There was no report of domestic partner violence, no report of homicidal thoughts, no hospitalizations, no recorded subsequent visits to the emergency room, and no legal history.  Review of the VA records showed the CI was not in treatment, but did report a prior 30-day prescription of Zoloft.  The VA diagnosed depressive disorder, NOS and assigned a Global Assessment of Functioning score of 66 (mild range).  All Board members agreed the evidence reflected minimal MH-related symptoms and good duty performance (as related to mental functioning) in the period of time leading into the MEB and therefore concluded there was insufficient evidence that any MH condition rose to the level of being unfitting at the time of separation, so none were subject to disability rating.  As the MH condition was determined by the SRP to be not unfitting, consideration of either VASRD §4.129 or 4.130 is not warranted.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend an unfit determination for the  depression NOS condition, 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 bilateral knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the depressive disorder, NOS condition, 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 no recharacterization of the disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131017, 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, AR20140013952 (PD201301667)

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