RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00282
BRANCH OF SERVICE:  Army	BOARD DATE:  20151015
SEPARATION DATE:  20071227

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6, Journalist, medically separated for right knee instability.  The condition 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 “right knee septic arthritis and right ACL revision” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated his right knee condition as unfitting, rated 20%, citing application of DoDI 1332.39.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His condition continues to worsen and negatively impact his daily activities.  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 2001003	VA* - (~3 Months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Instability …	5257	20%	Right Knee Laxity	5257	20%	20080408	
Other x 0 (Not In Scope)	Other x 2	
RATING:  20%	RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20080613 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Knee.  The narrative summary (NARSUM) noted “a long and complicated history related to knee surgery.”  He had previously undergone two right knee anterior cruciate ligament (ACL) reconstructions in 1993 and in 1995.  He had a re-injury and underwent another ACL reconstruction/revision in July 2006, which developed infection requiring two additional arthroscopic procedures that resulted in septic arthritis (total of six surgeries, including partial synovectomy and debridement – last surgery in August 2006).  “Since that time, he has had significant histories with pain control and therapy.”  In September 2006 the CI fell and reinjured his knee while wearing his brace, and in January 2007 orthopedics requested additional physical therapy for a diagnosis of post-ACL patella-femoral pain syndrome.  X-rays in June 2007 documented post-surgical changes and a small effusion.  Prior magnetic resonance imaging (MRI) documented tricompartmental degenerative joint disease (DJD-arthritis).  

At the MEB exam performed 4 months before separation, the CI reported constant pain with associated swelling, grinding, popping and giving way.  Medications included narcotic and narcotic-like pain medication.  The MEB physical exam documented range-of-motion (ROM) limited to 0-130 degrees (normal 0-140); “some” quadriceps atrophy [46 cm vs 50 cm on opposite side at mid-thigh]; II A Lachman’s (instability); positive pivot shift (for ACL laxity); positive patellar grind; joint line tenderness; and, 4+/5 ankle dorsiflexion (decreased strength) “limited slightly by pain.”  Follow-up exam documented 4/5 strength with right knee extension attributed to deconditioning and pain.  The CI had diminished sensation over the anterolateral (front, outside) aspect of his leg.  

At the VA Compensation and Pension (C&P) exam performed 3 months after separation, the CI reported right knee pain, instability, weakness, stiffness, giving way, locking (several times a year but less than monthly), repeated effusion, and severe flare-ups every 2-3 weeks.  He reported episodes of dislocation or subluxation less than once a year.  Physical examination revealed an antalgic gait with effusion, tenderness, instability, crepitus, grinding and painful motion.  The anterior/posterior cruciate ligament instability was reported to be abnormal and assessed by the examiner as moderate instability.  ROM was painful and limited to 0-132 degrees, without further decrease on repetition.  There was diminished sensation in the right peroneal nerve distribution.  Reflexes and strength testing were normal.  Remote records indicated the CI underwent knee arthroscopic surgery in April 2009 (16 months after separation) and knee replacement surgery in April 2013 (over 5 years after separation).  

The Board directed its attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the knee under code 5257 (knee, other impairment of: recurrent subluxation or lateral instability).  The rating criteria that the Board deliberated were between the “moderate” (20%) and “severe” (30%) instability criteria.  The Board also concurrently deliberated on application of dual ratings for the knee, based on separate ratings for instability and painful/limitation of motion.  The remote VA evidence was not considered probative to rating at the time of separation.  The CI had MRI evidence of DJD (arthritis; and later septic arthritis), and the VA exam and multiple treatment records documented pain-limited knee ROM as well as swelling and effusions.  Members agreed that with consideration of VASRD §4.40 (functional loss), §4.59 (painful motion), and criteria of 5003, that coding under 5257 as moderate at 20%, in addition to coding under 5009-5260 (leg, limitation of flexion) painful motion/limited motion at 10% was warranted.  

The Board additionally considered if the residual right leg decreased sensation warranted additional disability rating; but, members agreed that the requisite link of the neuropathy with functional impairment was not in evidence; therefore, the Board cannot support a recommendation for an additional disability rating for a peripheral nerve condition.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends dual disability ratings for the knee of 20% for the instability and 10% for the painful motion for the knee 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 the knee condition was operant in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the right knee condition, the Board unanimously recommends a dual disability rating for the knee of; 20%, coded 5257; and 10%, coded 5009-5260, both 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	
Right Knee	Instability … ACL Revision	5257	20%	
	Arthritis (Septic) / Degenerative Joint Disease	5009-5260	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20131218, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		
	XXXXXXXXXXXXXXXXXXXX
	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, AR20150016182 (PD201400282)

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:

Encl						     XXXXXXXXXXXXXXXXXXXX
						     Assistant Secretary of the Army
						       	(Manpower and Reserve Affairs)
						
CF: 
(  ) DoD PDBR
(  ) DVA