RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01958
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20051103

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4, Armor Crewman, medically separated for knee condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “failed anterior ligament reconstruction x 2, ACL deficient left knee” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “left knee pain and instability” as unfitting, rated 20%.  The CI made no appeals and was medically separated.  

CI CONTENTION:  “Left” ACL tear and surgery resulting in total knee replacement in July 2013.”

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 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:  

IPEB - Dated 20050926	VA* - (~4 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Pain…Instability 	5257	20%	Arthritis, S/P Left Knee ACL Reconstruction with Hamstring...	5010-5260	10%	20060307	
			Scar, Left Knee S/P Surgery	7805	0%	20060307	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1	
RATING:  20%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20060330 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Left Knee Pain and Instability Conditions.  The service treatment record (STR) indicated that the CI a history of an anterior cruciate ligament reconstruction (ACL) and partial lateral meniscectomy on 30 August 2001 as a result of a twisting injury to his left knee 3 years earlier marked by instability and frequent episodes of locking and catching of his left knee.  By 26 July 2002 the CI had returned to full duty and performed all functions without difficulty and was discharged on 16 July 2002.  An X-ray series of the left knee in October 2004 identified postoperative changes, status post ACL reconstruction and tricompartmental degenerative changes and a possible intraarticular loose body posteriorly.  A physical therapy note in November 2004 indicated the CI had left knee pain for 5 days; however, he did not recall any trauma, but his knee felt unstable a month earlier for which he received a temporary L3 profile.  An orthopedic evaluation noted the CI had instability with turning movements and assessed the CI’s condition as a failed ACL reconstruction.  On 2 March 2005, the CI underwent an arthroscopically assisted left ACL revision reconstruction using a hamstring autograft and also had hardware removed.  Postoperatively, the CI was treated with a brace, crutches and physical therapy.  In June 2005, increased laxity of the left knee warranted an MRI study on 21 June 2005, which revealed the ACL graft appeared to be essentially disrupted, although a few intact strands may have been present.  Additionally there was a large joint effusion, a large osteochondral lesion involving the lateral femoral condyle, a complex tear involving the posterior horn of the medial meniscus and secondary degenerative arthritic disease in the medial and lateral compartments of the knee.  The CI refused further surgery, but continued physical therapy.  X-ray series findings of the left knee in August 2005 were consistent with an ACL repair and minimal early degenerative changes.  

A permanent L3 profile was issued in June 2005 for a failed ACL reconstruction two times and an ACL deficient knee.  The CI was limited from performing military functional activities except for wearing a protective mask and all chemical defense equipment as well as running and lifting greater than 25 pounds.  At the MEB examination dated 18 July 2005, the CI reported on a DD Form 2807-1 he had a torn left ACL and had surgery twice of the left knee in 2001 and 2005.  The MEB physical examiner noted on a DD Form 2808 also dated 18 July 2005 that the CI had left knee weakness and a scar on the left knee.  The commander’s statement dated 28 July 2005 indicated the CI was physically incapable of reasonably performing his duties, which included lifting and heavy maintenance as well as many basic soldier tasks. 

The MEB narrative summary (NARSUM) dated 11 August 2005 indicated the CI injured his left knee and underwent left knee bone-tendon-bone knee reconstruction in 2001 and completed his tour of duty.  He returned to the service in 2004 and awakened a day after loading and unloading engines from trucks in November 2004 with his knee locked in 90 degrees of flexion.  In March 2005 he underwent a revision ACL reconstruction with a hamstring autograft.  Postoperatively he had the sensation of giving way and instability of his knee and reported anterior pain along with the medial joint line with the severity as 2-3/10 (10 being the worst pain), which he treated with Motrin (ibuprofen, a nonsteroidal anti-inflammatory drug).  In spite of physical therapy, he complained of his knee giving way and an MRI in June 2005 showed the ACL graft was disrupted again.  Examination of the range-of-motion (ROM) by a physical therapist revealed 5 degrees of hyperextension of the left leg and 145 degrees of flexion.  There was no joint line tenderness, but there was a trace effusion without erythema (redness) or warmth.  The CI had positive anterior laxity, a II-B Lachman (visible anterior translation of the tibia), a positive pivot shift test (to assess dysfunction with ACL deficiency), and a negative McMurray’s test (to determine meniscal tears).  He had 4/5 strength in his quadriceps and intact light touch sensation.  The examiner’s diagnosis was left knee pain and instability secondary to a failed ACL reconstruction two times.  In spite of treatment, the instability never resolved and CI could not perform his physical fitness test or training or any physical tasks required by his MOS.

At the VA Compensation and Pension (C&P) examination dated 7 March 2006, performed 4 months after separation, the CI reported left knee symptoms of pain, weakness, stiffness, swelling, locking, and giving away; and the symptoms were worse in the early morning.  He had no incapacitating episodes and could not run, lift objects or climb stairs.  Examination of the left knee showed signs of tenderness and revealed ‘locking’ pain.  The ROM of the left knee was 126 degrees (Normal 145) and 0 degrees extension.  Function was additionally limited by pain and lack of endurance with repetitive use.  The ACL and posterior cruciate ligaments stability tests of the left knee were within normal limits as were the medial and lateral collateral ligaments tests and the medial and lateral meniscus stability tests.    

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating using code 5257 (Recurrent subluxation or lateral instability-moderate) for left knee pain and instability.  The VA assigned a 10% rating using code 5010-5260 (Arthritis due to trauma/Limitation of flexion) for arthritis, S/P left knee ACL reconstruction hamstring autograft and 0% rating using code 7805 (Other scars) for a scar of the left knee S/P surgery, which is not in the scope of review.  The Board sought a route for a higher rating and noted the CI had not only instability marked by his knee giving way, but also pain and an MRI demonstration of a complex tear of the posterior horn of the medial meniscus, even though not confirmed on physical examinations proximate to separation, as well as a history of a partial lateral meniscectomy.  Because of the disparity of earlier and later clinical examinations, the Board discussed the PEB’s application of moderate instability versus slight instability, but MRI findings favored moderate instability based a few remaining strands of the hamstring autograft and earlier clinical findings.   The Board then considered application of codes 5259 (removal of symptomatic semilunar cartilage) at 10% and code 5258 (dislocated semilunar cartilage with frequent episodes of “locking”, pain and effusion into the joint) at 20%.  However, the record was silent on the frequency of locking proximate to separation and the CI had only a trace effusion on examination compared to a large joint effusion on the aforementioned MRI.  The Board also considered code 5003 (degenerative arthritis) in view of MRI evidence in the medial and lateral compartments as well as degenerative changes on X-rays of the knee in the absence of a ratable ROM and pain on several examinations.  The Board was unable to find a route to a higher rating in the absence of ankylosis of the knee, severe subluxation of the knee or significant limitation of motion of the knee.  However, combined ratings of the knee can be recommended IAW the opinion of the VA Counsel General dated 1 July 1997.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the left knee instability condition and 10% for the left knee pain 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.  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 left knee pain and instability conditions, the Board by a majority vote recommends a disability rating of 20%, coded 5257 IAW VASRD §4.71a and a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Left Knee Instability	5257	20%	
Left Knee Pain 	5099-5003	10%	
RATING	30%	
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131023, 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, AR20150018691 (PD201301958)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA