RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02004
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050810

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Light Wheel Vehicle Mechanic) medically separated for left knee pain.  The left knee 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 “anterior left knee pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (depression) that met retention standards for PEB adjudication.  The Informal PEB adjudicated “chronic left knee pain, insidious onset, status post diagnostic arthroscopy” as unfitting, rated 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.  

CI CONTENTION:  “The reason why I believe that my rating was inaccurate because the VA reviewed my active duty service medical records and found depression with insomnia.  I have been depending on the VA medication to help my sleep for years.  I continue to use VA medication to help me sleep.  I must take medication to help with my depression.  My wife and I have been to counseling because of my depression.  My mother, my father, and my wife tell me often that I became depress ever since I came back from Iraq.  My depression has affected my everyday life.” 

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:  

IPEB – Dated 20050701	VA* - (~4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Knee Pain	5099-5003	10%	Chondromalacia Patella, Left Knee	5024	10%	20051209	
Depression	Not Unfitting	Depression with Insomnia	9434	50%	20051209	
		PTSD	9411	NSC	20051209	
Other x 0 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  60%	
*Derived from VA Rating Decision (VARD) dated 20060328 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Left Knee Condition:  The service treatment records (STR) indicated that the CI developed abnormal tracking of his left knee cap which required an arthroscopic lateral release (loosening of tissue band about the knee cap) in November 2004.  Radiographic work-up was normal.  He underwent physical therapy (PT) and within 3 months after surgery his knee range-of-motion (ROM) was normal although local pain persisted.  He was permanently profiled in June 2005 with the sole diagnosis of chronic left knee pain.  At the narrative summary (NARSUM) examination (16 June 2005; approximately 2 months prior to separation) the CI reported constant left knee pain as being "worse" since his surgery.  He reported an inability to run due to pain.  He denied historical instability and or locking of the knee.  His physical examination (PE) conducted on 29 April 2005 (3 months prior to separation) was completely normal excepting slight atrophy of the medial thigh muscle (vastis medialis).  There was no comment regarding the presence of painful motion.  His diagnosis was anterior left knee pain.  

At the VA Compensation and Pension (C&P) examination performed on 9 December 2005; 4 months after separation), the CI reported left knee pain and stiffness with prolonged walking, standing, and maneuvering stairs.  His PE revealed a normal gait.  There was left knee tenderness with decreased and painful motion.  Deluca criteria were positive for pain noting a 15 degree loss in knee ROM.  No instability was present.  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.

Left Knee ROM
(Degrees)	PT ~ 6 Mo. Pre-Sep
(20050211) 	MEB ~ 2 Mo. Pre-Sep
(20050616) 	VA C&P ~4 Mo. Post -Sep
(20051209) 	
Flexion (140 Normal)	FROM	140	110 (Deluca)	
Extension (0 Normal)	FROM	0	0	
Comment	-	slight atrophy of quad; normal strength	Deluca; painful motion	
§4.71a Rating	0%	0%-10%	10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis) whereas the VA rated the same using code 5024 (tenosynovitis); both citing pain and or painful motion.  While there was no evidence of compensable limitation of motion, the Board agreed that the PEB’s 10% rating was supported under the 5003 coding pathway by sufficient evidence of functional loss (§4.40) which states “a part which becomes painful on use must be regarded as seriously disabled”; the persistence of painful motion as evidenced at the VA examination was such the case in this condition.  Board members also considered application of §4.56 (muscle disabilities) under code 5314 noting “slight” atrophy of the vastis medialis muscle near the left knee as indicated in the MEB; however, such level of impairment equates to a maximum of 0% IAW §4.56.  Lastly, due to surgical intervention coupled with anatomical relationship the Board additionally considered codes 5258 (cartilage, semi-lunar, dislocated) and 5262 (impairment; tibia and fibula) but neither were justified at a 20% level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the left knee condition.   

Contended PEB Condition. The Board’s main charge is to assess the fairness of the PEB’s determination that the depression condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. 

Depression.  The STR did not contain any individual clinical documents pertaining to depression, but rather the condition was listed as part of summary documents associated with the processing of the medical board.  The NARSUM dated 2 June 2005, indicated that the CI sought help from mental health in April 2005 because of "memory loss and can't sleep" and that he was prescribed anti-depressant medication in May 2005.  His mental status examination (MSE) was completely normal.  The corresponding DD Form 2807, Report of Medical History, dated 2 May 2005, clearly indicated “no” for a history or current status in regards to depression or excessive worry.  

At the VA C&P examination, the CI reported a history of combat exposure while deployed and endorsed symptoms of irritability, memory loss, and insomnia since returning from deployment.  His MSE revealed a “snippy” mood, and poor short-term memory.  Additionally, he endorsed having 3-4 panic attacks lasting 5 minutes each during a 10 month period.  He admitted “much improved” sleep pattern with 7-8 hours of sleep per night.  There was no suicidal/homicidal ideation and his cognitive function was described as awake, alert, and oriented times four.  The examiner stated, “[The CI] is employable.  I do not see any limitations on his employability based upon his depressive disorder at this time.”  The examiner’s conclusion was that the CI did meet the Service retention requirements.  No psychiatric condition was profiled, not implicated in the commander’s statement, or judged to fail Service retention standards.  The condition was reviewed by the action officer and considered by the Board.  There was no indication from the record that the depressive 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 contended depression condition; and, therefore, no additional disability ratings can be 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.  As discussed above, PEB reliance on the USAPDA pain policy AR 635-40 DoDI 1332.39 for rating the knee was operant in this case and the condition was adjudicated independently of that policy/instruction by this Board.  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended depression condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. 
The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131027, 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, AR20160000165 (PD201302004)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA