RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00212
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20070108

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 which could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The diagnosis “right knee instability status-post ACL [anterior cruciate ligament] rupture and medial meniscal tear” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “right knee instability” as unfitting, rated 10%.  The CI made no appeals and was medically separated.  

CI CONTENTION:   The applicant makes no specific contention in his application.  His complete submission is at Exhibit A.

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 20060926	VA* - (~2 Mos. Pre-Separation)  -	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Instability	5257	10%	Degenerative Joint Disease, Right Knee 	5010	10%	20061102	
Other MEB/PEB Conditions x 0 	Other x 6	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20070118 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  

Right Knee Condition.  The service treatment record (STR) corroborates the history in the narrative summary (NARSUM) of a pre-enlistment right ACL injury and surgical reconstruction (PEB conceded permanent service aggravation).  The CI re-injured the knee during training in November 2004 (8 months after enlistment) and was subsequently diagnosed with a torn ACL graft and a meniscal injury.  He was treated conservatively and cleared to deploy to Iraq (October 2005 – February 2006) with the use of a brace.  He experienced worsening pain after re-deployment and underwent arthroscopic surgical intervention (debridement only) in August 2005 (17 months pre-separation).  Of note, the ACL graft was seriously degraded (“a few [remaining] fibers ... scarred to posterior cruciate ... 25% of the normal cross section”), and was not repaired (“residual [ACL] stump ... debrided”).  Post-operatively the CI continued to experience pain and required a brace, was unable to meet the physical demands of his infantry MOS, and reasonably declined further surgical intervention.  There is ample STR documentation of joint instability to stress testing (positive Lachman’s and drawer) before and after surgery.  There is ample STR documentation of grossly normal range-of-motion (ROM), other than an entry immediately post-op recording flexion to 120 degrees (normal 140, minimum compensable 45).  There are no STR entries documenting gait disturbance, significant ROM limitation, persistent effusion, locking, or periods of incapacitation.  

The NARSUM was conducted 6 June 2006 (7 months pre-separation) and did not elaborate pain characteristics or specific functional limitations.  There was no comment regarding subjective instability, locking, or other associated complaints.  The NARSUM physical examination recorded a normal gait, the absence of effusion, and “stable medially and laterally ... laxity with anterior and posterior stressing.”  The PEB requested more detailed findings for the cited laxity, for which the examiner provided “1+ Lachman’s with 5 millimeter joint opening and a firm end point.”  The NARSUM cited physical therapy ROM measurements of flexion to 140 degrees and extension 0 degrees (normal), annotating painful motion.  The commander’s performance statement documented that the CI “continuously wears a knee brace.”  

A VA Compensation and Pension (C&P) examination was conducted 2 November 2006 (2 months pre-separation).  It documented “constant” pain rated 7/10 and the CI’s report of “giving way, locking, dislocation...[and]...cannot move around as well.”  The VA physical examination recorded a normal gait without the use of a brace, the absence of tenderness or effusion, stability to stress testing in all planes, no signs of impingement (negative McMurray’s), and “no evidence of recurrent subluxation...”  The VA measured ROM was flexion to 130 degrees and extension 0 degrees.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating was for “slight” instability under code 5257 (knee, other impairment) which also offers 20% for “moderate” and 30% for “severe” instability.  The VA’s 10% rating under code 5010 (traumatic arthritis) cited painful motion.  There is no evidence for compensable ROM impairment, frequent effusions, or locking which would support a rating higher than 10% under any alternate code.  It should be noted that code 5259 (cartilage, semilunar, removal of, symptomatic) is easily justified in this case, and provides for a 10% rating independent of any other criterion.  The Board was compelled in this case, however, to consider the option of separate ratings for instability and ROM limitation (via painful motion, or code 5259 equating to painful motion).  This is required by Board precedence, VA Training (FAST) Letters in effect (9-98, 23-97), and court rulings (Degmetich v. Brown, 1997 and others).  Although the VA evidence is contradictory, the Service evidence supports rating of instability under 5257, and the PEB’s rating was coded for instability.  Members therefore agreed that this should be conceded; but, all members agreed that the evidence does not support a rating higher than 10% under 5257.  Separate joint rating is supported by evidence under either code 5260 (limitation of flexion) via VASRD §4.59 (painful motion) or under 5259; and, members agreed that the latter is a good clinical fit for rating in this case.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the Board recommends that the right knee condition be separately rated at 10% under code 5257 plus 10% under code 5259.   

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 and IAW VASRD §4.71a, the Board unanimously recommends separate Service disability ratings of 10% each under codes 5257 for instability and 5259 (equivalent to limitation of motion by painful motion).  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:  

CONDITION	VASRD CODE	RATING	
Anterior Cruciate Ligament Injury with Instability, Right Knee	5257	10%	
Residuals of Meniscectomy with Painful Motion, Right Knee	5259	10%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131227, 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, AR20160000189 (PD201400212)

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 20% 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:

CF: 
(  ) DoD PDBR
(  ) DVA