RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00019
BRANCH OF SERVICE:  Army	BOARD DATE:  20150303
SEPARATION DATE:  20060523

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SGT/E-5 (Trainee) medically separated for right knee tibial plateau stress fracture and left knee degenerative arthritis.  The conditions 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 “stress fracture right medial tibial plateau” and “stress reaction left (MTP) with DJD left knee secondary to EPTS injury” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB (IPEB) adjudicated the right knee tibial plateau stress fracture as unfitting, rated 0% and also adjudicated the left knee degenerative arthritis as unfitting, but did not rate it as the condition was determined to have existed prior to service (EPTS).  The IPEB likely applied the Veterans Affairs Schedule for Rating Disabilities (VASRD) to these ratings.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Condition rapidly getting worse.”

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 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 20060523	VA* - (~4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Tibial Plateau Stress Fracture…	5099-5022	0%	Right Knee Strain	5260	0%	20060915	
Left Knee Degenerative Arthritis…	5003	---%	Osteoarthritis Left Knee	5010	10%	20060915	
Other x 0 (Not In Scope)	Other x 3 	
RATING:  0%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20070430 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Knee Condition.  Absent direct trauma, the CI began having right knee pain in February 2006.  Initial plain X-rays were normal and conservative treatment failed to resolve his painful symptoms.  A subsequent bone scan was reported as a right tibial plateau (knee level) stress fracture.  In April 2006 he was permanently profiled for the stress fracture as well as one other condition.  At the MEB narrative summary examination performed on 5 April 2006 (6 weeks prior to separation), the CI’s chief complaint was “bilateral knee pain; left > right.”  He endorsed “intermittent and minimal” pain to his right knee.  His physical examination (PE) revealed a “well” walk, “good” stability, and “normal” range-of-motion (ROM).  There were no other comments in relation to physical findings about the right knee.  The examiner’s prognosis for the right knee stress fracture condition was listed as “good.”  The commander’s statement endorsed the same diagnosis noting physical restrictions as rendering him unable to perform the duties required of his MOS.

At the general medicine VA Compensation & Pension (C&P) examination performed on 15 September 2006 (4 months after separation) the CI endorsed daily right knee pain with intermittent swelling and worsened with prolonged standing, walking, maneuvering stairs, and or squatting.  “He [the CI] is independent with all his own personal care.”  His PE revealed right knee tenderness, decreased non-painful motion with Deluca pain-positive causing a decrease of 15 degrees upon repetition.  There was no evidence of laxity present.  The goniometric ROM evaluations in evidence for both knees, which the Board weighed in arriving at its rating recommendations, with documentation of additional ratable criteria, are summarized in the chart below.

Knee ROM
(Degrees)	PT ~3 Mo. Pre-Sep
(20060301)	MEB ~2 Mo. Pre-Sep
(20060405)	VA C&P ~4 Mo. Post-Sep
(20060915) 	
	Left	Right	Left	Right	Left	Right	
Flexion (140 Normal)	-	full	full	full	120	105 
(Deluca -15)	
Extension (0 Normal)	-	full	full	full	0	0	
Comment	-	antalgic gait	crepitus; effusion; tenderness	-	painful motion 	tenderness; Deluca;  	
§4.71a Rating	NR	10%	10%	0%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating under analogous code 5022 (periostitis).  Using a single code 5260 (leg, limited flexion), the VA assigned a 0% rating citing no bone abnormalities and ROM from 0 to 105 after considering additional loss of motion due to pain.  While there was no evidence of compensable limitation of motion, the Board agreed that the overall evidence was sufficiently supported IAW painful motion (§4.59), or §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled,” and clearly, the persistence of painful motion as evidenced by an altered gait or repetitive use was such the case in this condition to rate at a minimum of 10%.  Although considered, codes 5258 and 5262 were not justified at a 20% level in the presence of a stable non-locking right knee without mal-union or non-union pathology.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that a minimum of 10% is supported in this case.

Left Knee Condition.  The case file contained two encounter documents in relation to a left knee condition; a single brief clinical encounter and one X-ray report showing degenerative arthritis of the left knee; evidenced by the presence of osteophytes and enthesophytes.  Summary documents as part of the MEB process revealed that the CI received treatment for a left knee injury prior to enlistment in 1991.  At the MEB, the CI complained that his left knee would swell with running and be painful with walking.  His PE revealed tenderness, crepitus, and warmth about the left knee.  There was a small effusion present.  There was no instability present and the ROM was full.  At the VA C&P examination, the CI reported daily left knee pain with some locking of the same with intermittent swelling.  In the same clinical report, there were inconsistent data whereby the [CI] reported “…that he does not have daily pain, but he does get intermittent swelling.”  The diagnosis was degenerative joint disease of the left knee.  The commander’s statement did not implicate the left knee condition.  Additionally, his second enlistment PE conducted in September 2005 indicated no current evidence or prior history of knee joint dysfunction or painful joints.

The IPEB determined that the left knee condition was EPTS and was not permanently service aggravated (PSA).  The Board’s main charge with respect to its recommendation is an assessment of the fairness of the PEB’s determination that there was no PSA of the EPTS left knee condition and that the condition was not a separate unfitting condition, and therefore eligible for a disability rating.  The Board’s threshold for countering such 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.  A presumption of service aggravation may only be overcome by a preponderance of medical evidence that the natural progression of the pre-existing left knee condition was unaltered by any consequence of military service.

Board members considered and extensively discussed the expected radiographic findings of degenerative arthritis of a major joint nearly 16 years after a reported sports-related knee injury.  The action officer opined that the formations of osteophytes and or enthesophytes (degenerative in nature) are a long-term result and a natural progression of a prior joint injury.  There was no objective evidence that the left knee condition resulted in or was made worse from military duties.  The Board concluded there was insufficient evidence to support that the left knee condition was separately unfitting at the time of separation.  All members agreed that the evidence convincingly supported the PEB’s adjudicated position.  After due deliberation in consideration of the preponderance of the evidence, Board members agreed that there was insufficient cause to recommend a change in the PEB’s determination that the EPTS left knee condition was not permanently aggravated by military service and thus is not subject to disability compensation.

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 5099-5022 IAW VASRD §4.71a.  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s adjudication.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Right Knee Condition	5099-5022	10%	
Left Knee Condition	5003	-	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131220, 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 XXXXXXXXXXXXXXXXXXXX, AR20150012771 (PD201400019)

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						     XXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA