RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01070
BRANCH OF SERVICE:  Army	 SEPARATION DATE:  20090628  

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Construction Equipment Operator, medically separated for “bilateral knee chondromalacia” rated 10% and 10%, respectively, with a combined disability rating of 20%.

CI CONTENTION:  The CI requests consideration of his unfitting bilateral knees, his not unfitting migraine headaches, and conditions not identified by either the Medical Evaluation Board or Physical Evaluation Board.  The CI’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 - 20090327	VARD - 20090708	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Chondromalacia, 10% Left, 10% Right	5099-5003	20%	Chondromalacia Patella, Left Knee	5260	0%	STR	
			Chondromalacia Patella, Right Knee	5260	0%	STR	
Migraine Headaches	Not Unfitting	Headache Syndrome	8100	NSC	STR	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Bilateral Knee Chondromalacia.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral knee condition began at different times.  The CI injured his left knee in September 2007 when he stepped in a water puddle, twisting his right ankle and left knee.  He injured his right knee in July 2008 while moving heavy military equipment.  Magnetic resonance imaging (MRI) in November 2008, 7 months prior to separation, demonstrated bilateral loss of cartilage behind the patella.  An orthopedic consult, also in November 2008, indicated no surgical intervention. Despite treatment, the bilateral knee condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for a MEB.  The MEB forwarded “patellar chondromalacia, left; and patellar chondromalacia, right;” and migraine headaches as meeting retention standards for PEB adjudication.  The NARSUM, written in February 2009, 4 months prior to separation, indicated the CI reported a rubbing sensation in his knees when walking and persistent pain with physical activities.  Physical examination noted stable ligaments (varus/valgus); no swelling, equal pain with both knees; and no muscle atrophy.  There was pain with motion and an antalgic gait due to use of crutches. There was limitation of flexion bilaterally to 130 degrees (normal 140 degrees).  

At the VA Compensation and Pension (C&P) examination in January 2010, performed 7 months after separation, [the CI failed to report for his initial VA examination, 2 days after separation], the CI reported giving way, pain, stiffness, and weakness, but no instability of his left knee. Physical examination showed an antalgic gait and crepitation of the left knee without grinding or instability.  The examination showed decrease flexion to 100 degrees bilaterally with painful motion in the right knee. 

The Board directed attention to its rating recommendation based on the above evidence. The PEB assigned a 20% rating, 10% for each knee, under an analogous 5099-5003 code (arthritis degenerative), citing painful motion.  The VA initially assigned a 0% rating to each knee using the 5260 code (leg, limitation of flexion of) based on STRs. A Decision Review Officer decision on 28 September 2010, awarded a 10% rating to each knee, backdated to the day after separation, coded 5261-5010 (leg, limitation of extension of and arthritis, due to trauma) for the right knee, and 5260-5014 (osteomalacia) for the left knee, based on a C&P examination 6 months after separation, citing painful, limited motion for both knees.  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261). However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) as adjudicated by the PEB. The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under the respective codes. There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There is therefore no VASRD §4.71a route to a rating higher than the 10% adjudicated by the PEB under any applicable code, and no grounds for additional rating based on the presence of instability. 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 adjudication for the bilateral knee condition.  

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that migraine headaches 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 migraines were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.   All were reviewed and considered by the Board.  There was no performance-based evidence from the record that migraines significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended migraine headache 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.  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 20140224, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 XXXXXXXXXXXXXXXXXXXXXXX AR20160008278 (PD201401070)

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