RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00001
BRANCH OF SERVICE:  Army	BOARD DATE:  20141218
SEPARATION DATE:  20050626

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 a right 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 right knee condition, characterized as “right knee prominent tibial tubercle ossicle” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “chronic right knee pain following traumatic injury to a prominent anterior tibial tubercle” rated 0% with likely application of the VA Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Over the past few years the conditions have become worse.  From driving, to shopping for groceries, and even putting dishes away.  I can be walking in the store and my back or knee will give out for no reason.  I have severe pain in my conditions daily with the most simplest task.  At the same time I’ve had to give up my dream of opening and running a restaurant because I can barely handle cooking for myself or family.” 

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 IPEB – Dated 20050411	VA - (3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain Following Traumatic Injury to a Prominent Anterior Tibial Tubercle	5099-5003	0%	Patellofemoral Syndrome, Right Knee with Scar	5299-5262	10%	20050921	
Other x 0 (Not In Scope)	Other x 2	
Combined:  0%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20051220 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Knee Condition.  The MEB examiner recorded the CI’s history of chronic right knee pain associated with a reported fall he sustained in September 2001 while active duty.  The CI noted he was unable to ambulate due to the pain in the anterior portion of his right knee.  Radiographs were negative for fractures; however, there were findings consistent with a prominent tibial tubercle and Osgood-Schlatter disease (OSD).  He experienced a brief period of disability, but continued to participate in his active duties, albeit with increasing pain.  The injury was initially treated with physical therapy and non-steroidal anti-inflammatory medication without improvement.  In 2002 he underwent surgery of the right knee to remove excess bone (symptomatic OSD- tibial tubercle ossicle excision), without complication.  He continued to report pain.  Seven months later, a magnetic resonance imaging was obtained documenting inflammation.  Radiographs of the right knee in July 2004 demonstrated persistence of tibial tubercle soft tissue swelling consistent with distal patellar tendinosis.  The CI continued to report pain and having failed conservative treatment he was provided a permanent profile and referred to the MEB.  There was no report of knee locking, give way, instability, or effusions.

At the MEB narrative summary evaluation on 11 March 2005, 3 months prior to separation, the CI stated his pain was worse after surgery than before the surgery.  He was unable to perform his duties and could not run.  He had pain over his right tibial tubercle with any type of running, prolonged standing or walking.  He had pain with normal daily activities such as driving a car or sitting at his desk.  Physical examination of the right knee demonstrated painful prominence of the tibial tubercle.  Right knee range-of-motion (ROM) recorded flexion of 125 (140) degrees compared to full ROM in the left.  Evidence of painful motion was absent.  There was no evidence of knee instability, inflammation of the joint, or neurovascular compromise.  There was no tenderness to palpation along joint lines.  The VA Rating Decision referenced a 21 September 2005 examination that recorded the diagnosis of retropatellar pain syndrome and OSD.  That examination found only pain with limited ROM.  ROM flexion of the right knee recorded at 130, and gait was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition of chronic right knee pain, 0% analogous to degenerative arthritis code of 5299- 5003 citing no loss of joint motion (ROM).  The VA rated the condition at 10% coded analogously to 5262 based on painful limitation of motion.  A higher rating of 20% under this code requires evidence of moderate knee or ankle disability secondary to impairment of the tibia and fibula, not supported by the record in evidence.  On review of the records the Board noted that even though the flexion was reduced it was not compensable under 5260 and 5261.  The Board considered the 5258 code; however, there were no objective evidence of frequent episodes of locking and effusions to support the use of this code.  In 2005, the commander reported the CI continued to have pain that worsened after surgery and limited his ability to perform MOS related duties. He was non-deployable and “would never be able to fulfill the requirements of his duty as an infantryman.”  In 2003, the commander wanted to retain and retrain the CI.

The Board agreed the evidence supported the application of VASRD §4.40 compensable rating for functional loss (described in the CS).  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 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.  As discussed above, PEB reliance on DoDI 1332.39 for rating knee pain was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5003 IAW VASRD § 4.71a, and 4.40.  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	
Chronic Right Knee Pain	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131202, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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, AR20150008493 (PD201400001)

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		     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA