RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-00878
BRANCH OF SERVICE:  Army	BOARD DATE:  20150331
SEPARATION DATE:  20080331

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Cannon Crewmember) medically separated for a bilateral knee condition.  The knee condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty or physical fitness standards, so he was referred for a Medical Evaluation Board (MEB).  “Bilateral chondromalacia with patella alta,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other medically acceptable condition for PEB adjudication (Anxiety disorder, NOS).  The PEB adjudicated “chondromalacia, bilateral knees with patella alta” as unfitting, rated 0%, citing application of AR 635-40, B-15.  The remaining condition was determined to be not unfitting.  The CI made no appeal and was medically separated.  An Administrative Correction was completed by the US Army Physical Disability Agency which had no bearing on the disability rating.

CI CONTENTION:  “It should be changed because I was diagnosed with delayed PTSD and was on profile for that and my knees and back.  I have total of 16 years in the military and I feel like my time didn’t mean anything.  I was a dedicated soldier but after my third deployment and the things I seen and encountered when I got back and started issues with my mental status, my knees, and my back.  I feel that all of this should have qualified me for retirement.”

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:

Service Admin IPEB – Dated 20080326	VA - (1 & 2 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Chondromalacia With Patella Alta	5099-5003	0%	Patellofemoral of the Left Knee	5299-5261	10%	20080213	
			Patellofemoral of the Right Knee	5299-5261	10%		
Anxiety Disorder NOS	Not Unfitting	PTSD w/ Depression	9411	30%	20080130	
Other x 0 (Not in Scope)	Other x 0 	
Rating:  0%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20080421.

ANALYSIS SUMMARY:

Bilateral Knee Condition.  The narrative summary (NARSUM) noted initial onset of right knee pain in 2002 that “quickly became bilateral.”  Bilateral knee pain was chronic at rest, with prolonged sitting or standing and was worsened by impact activities.  Orthopedic evaluation in April 2007 diagnosed bilateral chondromalacia and patella alta (high riding patella) on each knee confirmed by X-rays.  Conservative therapy including profile restriction and medications did not provide sustained improvement to return to full duty, and surgery was not recommended.

At the MEB exam, the CI reported that both knees were swollen and painful, locked and gave out while walking.  The MEB exam (DD Form 2808, Report of Medical Examination) noted decreased range-of-motion (ROM) of both knees due to pain/stiffness.  The NARSUM exam documented a normal gait.  Both knee caps were high riding with positive apprehension test and patellar crunch sign (crepitation and audible “pops”).  Stability and meniscal testing was negative (Lachman's, McMurray's, anterior and posterior drawer signs; varus and valgus maneuvers).  Goniometric testing documented pain limited active ROM of flexion to 95-100 degrees on the right and 90-95 degrees on the left including repetitive motion (normal 140).  Extension was to 0 degrees (normal) for each knee.

At the VA Compensation and Pension (C&P) exam performed 2 months prior to separation, the CI reported 6/10 pain with weakness, stiffness, fatigability, locking, and swelling of both knees; with giving out of the right knee twice in the last year.  Exam documented painful flexion of 110 degrees for each knee (normal 140) and normal 0 degrees of extension with no changes on repetition.  Gait was normal and both knee caps were high riding.  There was patellar tenderness.  Meniscal testing was negative and there was no ligament laxity.  The diagnoses were bilateral patella alta and bilateral patellofemoral syndrome.

The Board directed attention to its rating recommendation based on the above evidence.  The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each disability rating.  In this case, both knees were considered to fail retention standards; both were implicated by the NARSUM and in the commander’s statement; and, both were profiled.  Members agreed therefore that each knee should be conceded as separately unfitting; and, that coding and rating features were logically identical.  All exams documented pain limited ROM warranting a 10% evaluation IAW VASRD §4.59.  There was no indication of flexion limited to 30 degrees of extension limited top 15 degrees for any higher ratings based on ROM.  There was no evidence of meniscal injury or ligament laxity for alternate coding or dual ratings of either knee.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends that each knee be found unfit with a disability rating of 10% for the right knee and 10% for the left knee for chondromalacia with patella alta of each knee.  In the matter of the bilateral knee condition, the Board unanimously recommends that each knee joint be rated as separately unfitting at 10%, coded 5099-5003, both IAW VASRD §4.71a.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the anxiety disorder NOS condition was not unfitting.  The Board’s threshold for countering fitness determinations is preponderance of the evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

The psychiatric NARSUM addendum (titled Psychiatric Intake, dated October 2007) indicated that the CI had no psychiatric history until approximately August 2007.  The CI related symptoms beginning in February 2007 at the end of his third deployment.  Symptoms were irritability, anger, low motivation and partnership relation problems.  He was being seen by MH providers and was taking an antidepressant (Zoloft) and sleeping medication.  The CI did not have startle or paranoia and stated he had no limitations.  Mental status exam (MSE) was normal.  The psychiatrist stated the CI did not meet criteria for depression or posttraumatic stress disorder (PTSD) “rather he appears to be suffering from a variant of PTSD which will be termed anxiety disorder not otherwise specified (The CI) has no limitations from a mental health perspective, but would benefit from treatment.”  There were no MH treatment notes available in the record of evidence.  The DD Form 2808, Report of Medical Examination, dated September 2007 had listed PTSD as a diagnosis.

The VA C&P MH exam was performed in January 2008 and indicated the CI had diagnoses of depression and PTSD with moderate impairment for occupational and social functioning.  The CI had symptoms of depressed mood, irritability, problems with concentration and attention, and sleeping problems.  There were no panic attacks or suicidal or homicidal ideations.  The examiner provided a detailed history of the CI’s stressors and the mental status exam indicated a depressed mood with constricted affect and no signs of psychosis.  The VA rated this exam at 30%.

The anxiety disorder condition was profiled as an S2 with no weapons restriction, and the CI was considered as having no limitations by the military psychiatrist.  The commander’s statement described the duty limitations from the CI’s MH condition as “The Anxiety disorder condition requires constant monitoring and medication, which can not be guaranteed in the field or wartime environment.”  The anxiety condition was not judged to fail retention standards by the MEB.

Anxiety disorder was reviewed and considered by the Board.  There were no hospitalizations or emergency department visits due to any MH condition.  There was little performance based evidence from the record that anxiety disorder significantly interfered with satisfactory duty performance, although there may have been some deployment limitations as noted by the commander’s statement.  NCO evaluations reported exceptional performance and potential.  The PEB had the commander’s statement in evidence when they adjudicated the anxiety disorder as not unfitting.

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 contended anxiety disorder 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.  As discussed above, PEB likely reliance on AR 635-40 for rating the knees was operant in this case and the condition was adjudicated independently of that instruction by the Board.  In the matter of the bilateral knee condition, the Board unanimously recommends that each knee joint be rated as separately unfitting at 10%, coded 5099-5003, IAW VASRD §4.71a.  In the matter of the contended anxiety disorder 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 modifying the case determination as follows, effective the date of medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Bilateral Chondromalacia With Patella Alta	Left	5099-5003	10%	
	Right	5099-5003	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140219, 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, AR20150013332 (PD201400878)

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