RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00834
BRANCH OF SERVICE:  Army	BOARD DATE:  20141204
SEPARATION DATE:  20080324

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (21T/Technical Engineer) medically separated for left anterior cruciate ligament (ACL) tear.  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 ACL tear conditions, characterized as “left knee tricompartmental degenerative changes” and “left knee anterior cruciate ligament repair,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition.  The Informal PEB adjudicated “left ACL tear,” as unfitting, rated at 10%with likely application of Department of Defense Instruction (DoDI) 1332.39 and Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.” 

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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting left ACL tear condition is addressed below; and the unfitting sleep apnea condition is within the DoDI 6040.44 defined purview of the Board.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service Admin Correction – Dated 20080417	VA - (1 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left ACL Tear	5257	10%	Degenerative Joint Disease, Left Knee w/Acromioclavical Ligament Tear (claimed as left knee arthritis and left knee hydrarthrosis)	5261-5013	10%	20080208	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20080208	
Other x 0 (Not in Scope)	Other 3 		
Combined:  10%	Combined:  60%	
Derived from VA Rating Decision (VARD) dated 20080714 (most proximate to date of separation)

ANALYSIS SUMMARY:

Left ACL Tear Condition.  The narrative summary (NARSUM) notes the CI to have a long history of left knee pain, popping and occasionally giving away without specific traumatic etiology which increased with military activities and weight gain.  A magnetic resonance imaging (MRI) obtained on 10 May 2005 revealed severe arthritis of the knee, extensive medial and lateral meniscal tears (inside and outside knee cartilage), a chronic complete tear of the ACL and partial tear of the posterior cruciate ligament.  On physical therapy (PT) evaluation on 25 June 2007, range-of-motion (ROM) of the knee was flexion (FX) 135 degrees with pain (normal, 140 degrees) and signs of ACL instability were present.  Strength of the knee on flexion and extension was slightly reduced secondary to pain but the CI was able to do a full squat.  Treatment was undertaken with strengthening exercises in a water pool and a knee brace.  On an orthopedic evaluation performed on 27 June 2007, the CI reported occasional instability of the knee with “catching” and “giving way.”  On examination, there was no evidence of lateral instability (valgus-knee rocks outward when straight and stressed) or medial instability (varus- knee rocks inward when straight and stressed), but signs of ACL instability were present.  The examiner opined that there was “no good surgical option other than a total knee replacement which should be delayed due to age and weight condition.”  On a PT evaluation dated 12 July 2007, the CI reported no locking of the knee but continued occasional “giving way.”  Clinical signs of ACL instability were present.  On an orthopedic evaluation performed on 2 October 2007, ROM of the left knee was 130 degrees with pain.  Signs of ACL instability but no valgus/varus instability were present.  At the MEB NARSUM evaluation on 14 September 2007 (6 months prior to separation), the CI reported occasional “giving away” of the knee, no locking, and wearing his knee brace 40% of the time.  The MEB physical exam noted slight swelling of the left knee with tenderness to palpation on the inside and outside of the joint.  ROM was FX of 110 degrees limited by pain.  There were no signs of varus/valgus instability.  ACL instability was present with a mild forward movement of 3 mm on forward stress testing.  

At the VA Compensation and Pension exam performed 8 February 2008 (a month prior to separation) the CI walked with a cane and had a mildly antalgic gait.  Exam of the knee revealed some mild swelling (effusion).  ROM of the left knee was FX 140 degrees with pain and normal extension.  Slight ACL instability and no valgus/varus stability were reported.  Motor and sensory exams were normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the knee condition 10%, code 5257 (knee impairment/instability, “slight”).  Under this code the next higher rating, 20%, requires the condition to be “moderate.”  The VA rated the knee condition 10%, code 5013 (osteoporosis), citing painful motion.  The Board agreed that this case justifies consideration of separate ratings for instability and painful motion as established by formal VA policy in effect at the time of separation.  By prior legal opinion and firm precedent, the Board adheres to this guidance.  The Board agreed the record in evidence supported a rating of the knee for ACL instability.  The Board noted the radiographic evidence of a severe ACL injury of the MRI but unanimously agreed that the condition was functionally mild, given the reports of only “occasional giving out of the knee,” and the findings of only mild instability on quantative clinical testing.  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 knee condition for instability.

The Board agreed that the record in evidence referenced above supports a rating of 10% for the left for painful motion IAW §4.40 and §4.59.  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 knee condition for painful motion.  The Board agreed that no rating could be recommended for the knee under ROM criteria.  The Board agreed that the record reference above supported no rating higher than 20% (moderate) under code 5262(tibia/fibula impairment).for the combined knee condition.  The Board found no other codes for consideration.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that sleep apnea condition (OSA) was not unfitting.  The Board’s threshold for countering fitness 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.  The CI developed increased daytime fatigue associated with weight gain in 2007.  Polysomnographic sleep studies in August and September 2007 revealed mild sleep apnea and the CI was treated with nasal continuous positive airway pressure at 7cm pressure.  At the time of these studies the CI reported no accidents or injuries from falling asleep during daytime, not taking day naps, but constantly dozing off at work.  The OSA condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  It was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  The record contained no emergency room visits or hospitalizations for the condition and no records of administrative/co-worker reports of impacting job- impacting hyper somnolence.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the OSA contended condition and so no additional disability rating is recommended.

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 left knee condition and IAW VASRD §4.71a, the Board unanimously recommends a duel rating:  10% for left knee instability, code 5257 and 10% for left knee painful motion, code 5003.  In the matter of the contended sleep apnea condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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	
Left  Knee ACL Tear with Instability 	5257	10%	
Left Knee Pain with Motion	5003	10%	
Combined	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140520, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		

SAMR-RB									

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXX, AR20150007097 (PD201400834)

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:

Encl		     

CF: 
(  ) DoD PDBR
(  ) DVA