RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00913
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080914

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Infantryman, medically separated for “chronic right knee pain,” with a disability rating of 10%. 

CI CONTENTION:  His conditions were not fully examined and he has other conditions for which he was diagnosed.  The applicant’s complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 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 PEB - 20080620	VARD - 20090507	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain	5099-5003	10%	Right Knee Strain with Synovitis	5020	10%	20090423	
Chronic Low Back Pain	Not Unfitting	Degenerative Disc Disease of the Lumbar Spine	5242	0%		
History of Thyroglossal Duct Cyst Status Post Excision Times 2		Two Surgical Scars of the Neck from Cyst Excision	7800	30%		
Insomnia		Persistent Insomnia	9499-9413	Deferred 		
COMBINED RATING:  10%	COMBIEND RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY: 

Right Knee Pain.  While deployed, the CI twisted his right knee in 2006.   X-ray workup was unremarkable.  Despite long term physical therapy (PT), medications, and restrictions, his knee pain persisted.  He was permanently profiled in April 2008 and referred to a Medical Evaluation Board (MEB).  At the MEB narrative summary which was performed on 5 June 2008, 3 months prior to date of separation [DOS]), the CI reported constant right knee pain aggravated by prolonged sitting, standing, or walking.  “He is unable to run, ruck march, wear his individual body armor, carry a fighting load, construct a fighting position or do 3 to 5 second rushes.”  The physical examination (PE) noted tenderness and decreased painful motion of the right knee without spasm or weakness.  His stance, balance, and gait were normal.  His diagnosis remained chronic right knee pain.  There were two separate VA Compensation and Pension (C&P) exams contained in the case file; one 5 months prior to DOS and one 6 months after DOS.  Prior to separation the CI reported weekly 4/10 painful flare-ups of the right knee lasting for 1-2 hours and his exam was normal.  Post separation, the CI reported continued knee pain.  His gait remained normal.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB analogously assigned a 10% rating under code 5003 (degenerative arthritis) citing limitation of motion.  The VA also cited the same and rated 10% under code 5020 (synovitis).  Board members agreed that all exams within 5 months either side of DOS would not rate greater than the PEB’s 10%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB’s adjudication for the right knee condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the chronic low back pain, post-excision of thyroglossal duct cyst, and insomnia were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The insomnia and excision of thyroglossal cyst were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   Both conditions were reviewed and considered by the Board.  There was no performance based evidence from the record that neither of these conditions significantly interfered with satisfactory duty performance.  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 determinations for insomnia or post-excision thyroglossal duct cyst and so no additional disability rating are recommended.

The chronic low back pain was profiled, but not specifically implicated in the commander’s statement.  The CI had a long history of persistent low back pain after a road march in May 2004.  Radiographs did not reveal any acute pathologic findings.  Despite PT and medications, he continued to experience intermittent back pain.  The MEB exam noted the CI maintained the ability to perform push-ups and sit-ups, but was unable to run.  His PE revealed near normal but painful motion.  The pre-separation C&P exam was normal in regards to the thoracolumbar spine.  Board members agreed that any abnormal PE parameters with regards to the CI’s back condition near the time of separation were minimal and did not rise to a level where they significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, members concluded that there was insufficient cause to recommend a change in the PEB’s fitness determination for the low back pain condition and no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended low back pain, post-excision of thyroglossal duct cyst, and insomnia conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination. 

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140214, 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 XXXXXXXXXXXXXXXXXX, AR20160006735 (PD201400913)

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 and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA