RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00653
BRANCH OF SERVICE:  Army	BOARD DATE:  20150227
SEPARATION DATE:  20041030

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E4 (Petroleum Supply Specialist) medically separated for left knee pain with instability.  The condition 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 left knee condition, characterized as “moderate, constant chronic pain left knee, status-post meniscus & anterior cruciate ligament (ACL) repair & cadaver graft” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB (IPEB) adjudicated chronic pain left knee, status post ACL reconstruction as unfitting, rated 20% with application of the Veterans Affairs Schedule for Rating Disability (VASRD).  The CI appealed to the Formal PEB (FPEB) who increased the rating to 30% and placed the CI on the Temporary Retired Disability List (TDRL).  The condition was reevaluated and the IPEB adjudicated chronic left knee pain with instability as unfitting, rated 20% with application of the VASRD.  The CI did not appeal and was medically separated.

CI CONTENTION:  “I have permanent disability.  My left knee, which I had 10 surgeries I also have back problems and right knee condition due to left knee.  After separation I developed migraines and PTSD; therefore my rating disability should be changed.”

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:

Final Service PEB - 20060123	VA (4.3 Mo. Post TDRL Placement) - Effective 20041031	
On TDRL – 20041030	Code	Rating	Condition	Code	Rating	Exam	
Condition		TDRL	Sep.					
Chronic Pain Left Knee with Instability	5099-5003	30%	20%	S/P Left Knee Cruciate Reconstruction with Graft; Septic Arthritis	5257	30%	20050315	
				S/P Septic Arthritis; Left Knee	5003-5260	10%	20050315	
				Left Knee Scars	7802	0%	20050315	
Other x 0 (Not in Scope)	Other x 2	
Combined:  30% → 20%	Combined: 40%	
*VA rating examination most proximate to TDRL placement

ANALYSIS SUMMARY:

Left Knee Condition.  Early treatment records revealed that the CI underwent a left ACL reconstruction (with graft placement) and a partial menisectomy on 10 November 2002.  After an accelerated post-surgical rehabilitation program, he deployed in support of OIF from 17 March 2003 to 11 May 2003.  A line of duty determination noted that while deployed, he fell and injured his left knee.  Upon re-deployment, orthopedic evaluation determined a loosening of previous surgical instrumentation/graft and recommended additional surgery.  Arthroscopic surgery was performed on 30 June 2003 and was complicated by “septic arthritis” (serious infection of a joint).  Post-operatively, he underwent weekly knee taps for infectious fluid removal and was placed on long-term intravenous and oral antibiotics.  In December 2003, primary care indicated “persistent decreased range-of-motion (ROM) with instability” of the left knee and recommended a permanent profile and referral to an MEB.  Prior to the MEB on 30 April 2004, the CI again underwent left knee surgery on 15 March 2004 to remove all previously placed hardware.

At the MEB narrative summary examination on 21 April 2004 (6 months prior to TDRL placement), the CI reported continued left knee pain requiring narcotics for pain relief.  He also endorsed the inability to run or perform any type of significant exercise.  “He has to use a cane for ambulation stability because the knee, at times, feels like it will give out and cause him to fall.”  His physical examination (PE) revealed a left-sided limp with use of a cane for walking.  The left knee was globally tender and a small effusion was present.  There was painful and limited ROM and the left knee was “fixed” in 15 degrees of flexion; indicating an inability to extend towards neutral or 0 degrees.  Maximum flexion was to 55 degrees (equating to 40 degrees of movement).  His prognosis was listed as “poor,” but the examiner also summarized the CI’s functional ability by stating, “Basically, [the CI] is disabled from his soldiering activities because of the complications from the initial left knee injury.  He is unable to run or do any of the usual activities that would be required of a soldier.  In fact, he is also rather limited at this time for any activities that he could perform as a civilian.”  “It is not felt this will improve.”  The permanent profile listed chronic left knee pain s/p meniscus/ACL repair as the sole diagnosis and the commander’s statement implicated the same condition with a recommendation for medical separation from the Army.  The initial PEB on 15 June 2004 adjudicated the left knee as unfitting rated 20% citing pain IAW the USAPDA pain policy DoDI 1332.39.  The CI non-concurred and a FPEB conducted on 4 August 2004 placed the CI on the TDRL at a rating of 30%.  At the VA Compensation and Pension (C&P) examination on 8 March 2005; 4 months after TDRL placement and 12 months prior to TDRL removal), the CI endorsed left knee pain associated with a “loss of force” about the knee.  The PE revealed a normal gait.  His ROM was described as “limited flexion of the legs.”  Although not described, the examiner did state that instability and tenderness was present.
At the TDRL re-evaluation on 30 November 2005; 4 months preceding permanent separation the CI reported continued left knee pain requiring narcotic medication for relief.  “He is able to ambulate with the assistance of a cane.”  “He does walk with a noticeable limp.”  Additionally, he endorsed the inability to walk or bear weight for any prolonged period.  Occupationally employed as a police officer, his duties were modified from field work to administrative work due to his inability to perform physical tasks.  His PE was detailed and revealed left knee tenderness and pain with patellar manipulation.  There was decreased ROM, and mild effusion.  His left lower extremity revealed normal strength and there was no evidence of knee instability.  
The January 2006 PEB rated 20% citing left knee pain with instability.  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 charts below.

TDRL: placement 20041030; removal 20060324
Left Knee ROM
(Degrees)	NARSUM Addendum
5 Mo. Pre-TDRL Placement
(20040609)	
VA C&P 4 Mo. Post-TDRL placement; 12 Mo. Pre-TDRL exit
(20050308)	
TDRL exam
4 Mo. Pre-TDRL exit
(20051130)	VA C&P 8 Mo. Post-TDRL exit
(20061114)	
Flexion 
(140 Normal)	90	‘limited’	95	72	
Extension 
(0 Normal)	-10	--	 -15	-30	
Comment	painful motion	tenderness; painful motion; ‘instability’ normal gait	painful motion; use of cane	tenderness; painful motion; instability;
edema; effusion; weakness; guarding; atrophy; crutches/brace	
§4.71a Rating	10%	10-20-30%	20%	40%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the condition analogously using code 5099-5003 (degenerative arthritis) with placement into TDRL based upon joint instability and multiple surgical interventions for a 30% impairment rating.  The VA permanently rated the surgical reconstruction at 30% under 5257 (knee; other impairment) and additional 10% analogously coded 5003-5260 (arthritis-leg; limited flexion) for the diagnosis of septic arthritis.  The PEB permanently adjudicated the left knee at 20% coded 5099-5003, analogous to degenerative arthritis.  Board members first considered if there was evidence for a §4.71a rating higher than the PEB’s 30% at time of TDRL placement.  Absent boney non-union, extreme limited motion, or joint ankylosis, Board members agreed that the records at TDRL placement supported the 30% PEB rating IAW §4.17a.  The Board then considered if there was evidence for a §4.17a rating higher than the 20% permanent rating adjudicated by the PEB at TDRL termination.

The ROM values reported by the VA examiner (8 months after separation) were significantly less than those reported by the TDRL examiner 4 months prior to separation.  There was no record of recurrent injury or progressive disease in explanation of the more marked impairment reflected by the VA measurements.  Board members extensively discussed the significant ROM impairment between the two exams and member majority agreed that a build-up of scar tissue was a plausible and unsurprising outcome given the CI’s multiple surgical interventions coupled with inflammatory initiators associated with a long-term infectious (septic) process within a major joint.  Additional compounding factors as to the worsening ROM was the new presence of effusion and edema.  In consideration of exam probative value, Board majority further agreed that both exams were clinically relevant with a higher value being apportioned to the VA C&P due to medical plausibility and a worsening condition; and therefore, an impairment rating was supported based upon the abnormal ROM measurement.

Board members agreed that the CI’s overall condition had not significantly improved during the period of TDRL noting decreasing ROM and the need for an ambulation assistive device.  Board majority was that the severity of the knee extension (within a year of separation) clearly met the 40% impairment level.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt) and §4.7 (higher of two evaluations), the Board recommends no change in the TDRL-placement rating and the majority of Board members recommends a 40% rating at permanent retirement.

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 from the FPEB ruling that any prerogatives outside the VASRD were exercised.  In the matter of the left knee condition, the Board unanimously recommends no change in the 30% TDRL-placement rating and by a majority vote recommends a permanent 40% rating coded 5261 IAW VASRD §4.71a for a combined 40% disability retirement as noted below.  The single voter for dissent did not elect to submit a minority opinion.  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 recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
Left Knee Condition	5261	30%	40%	
COMBINED	30%	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140102, 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, AR20150013209 (PD201400653)

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 40% 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 day 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 40% 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						     XXXXXXXXXXXXXXX										     Deputy Assistant Secretary of the Army
						          (Review Boards)
						
CF: 
(  ) DoD PDBR
(  ) DVA