RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01088
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20080621

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Cavalryman) medically separated for right knee instability.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “right knee pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (right ear hearing loss and right shoulder pain) for PEB adjudication.  The Informal PEB adjudicated his right knee as unfitting, rated 10% citing application of the 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:  He was given a higher rating for his conditions by the VA.  His complete submission is at Exhibit A.

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 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:  

IPEB – Dated 20080404	VA* - (~12 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain and Instability…	5257	10%	Right Knee Condition	5260	10%	20090617	
			Bilateral Knee Disability	5262	NSC	20090617	
Sensorineural Hearing Loss, Right Ear	Not Unfitting	Hearing Loss, Bilateral	6100	0%	20090608	
		Hearing Loss, Right Ear	6100	NSC	20090608	
Right Shoulder Pain	Not Unfitting	Right Shoulder Tendonitis     	5299-5201	NSC	20090617	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 10	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20090808 (most proximate to date of separation [DOS]).  VARD dated 20131030 increased right knee 5260 to 10% based on appeal and exam dated 20090617 along with Service Treatment Records.  

ANALYSIS SUMMARY:  

Right Knee Condition.  The CI had a long standing history of bilateral knee pain when he presented on 26 June 2006 with a history of increased pain after his knee gave out during a run.  He was thought to have a possible deficiency of the anterior cruciate ligament (ACL) and treated with medications and duty restrictions.  His symptoms did not improve and he had surgery (on the economy) in November 2006.  The operation report is not in evidence, but contemporaneous clinical notes indicate that he had repair of the ACL.  He underwent rehabilitation in physical therapy and apparently did well until he reinjured the knee on 31 May 2007 doing lunges.  His range-of-motion (ROM) was normal and the knee was stable without signs of meniscal irritation.  It was noted that the CI had increased his running to be competitive for promotion and that he was advised then to cease all running until one year out from surgery.  In orthopedics on 11 October 2007, he had tenderness along the patellar (kneecap) ligament and the ROM was reduced to 100 degrees.  The knee was stable and signs of meniscal irritation were not documented.  However, at a follow on orthopedic appointment on 3 December 2007, one test for laxity of the ACL was positive and a provocative maneuver for meniscal irritation was positive for pain, but a click (considered a positive test) was not recorded.  An MRI showed an abnormal signal of the medial meniscus (an internal cartilage cushion) which could represent a tear or changes from the prior surgery.  The CI was offered diagnostic/therapeutic arthroscopy, but declined.  At the MEB examination on 5 February 2008, 4 months prior to separation, the CI reported severe pain if he stood more than 20 minutes and that he could not run or ruckmarch.  The MEB physical examiner noted the recent MRI and that the CI had declined arthroscopy; accordingly, no definitive diagnosis could be made.  The narrative summary (NARSUM) was dated 5 March 2008.  The CI reported constant dull right knee pain aggravated by inclines, stairs, and carrying weights.  He denied difficulty as a passenger in a car.  He also stated that his knee gave out on him once a week, usually when going up stairs.  On examination, his ROM was limited in flexion at about 85-95 degrees secondary to pain.  The examiner recorded that the CI was actively resisting attempts to move the knee past this limit.  He appeared to have a 1+ Lachmans (slightly positive for laxity of the ACL), but with a good endpoint (indicative of a good repair).  Some off-loading of the right knee was noted on his gait.  The knee was otherwise unremarkable, but no comment was made on signs of meniscal irritation.  At the VA Compensation and Pension (C&P) examination performed 12 months after separation, the CI reported that his knee occasionally gave way and was always slightly swollen.  Driving was limited to 2 hours due to knee pain.  He could walk .2 miles on a flat surface before he needed to stop.  He denied re-injury subsequent to the surgical repair in November 2006.  On examination, he was noted to slightly favor the right knee, but to use no assistive device.  There was a slight effusion (fluid in the joint) and the kneecap was tender.  A test for ACL laxity was positive, but not graded.  The ROM was reduced as noted below.  Signs of meniscal irritation were not documented.  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 chart below.  

Right Knee ROM
(Degrees)	MEB ~ 3 Mos. Pre-Sep	PT ~ 3 Mos. Pre-Sep	VA C&P ~ 12 Mos. Post-Sep	
Flexion (140 Normal)	85	100	95	
Extension (0 Normal)	0	-2 (HE)	0	
Comment	Painful motion	No comment on pain	Painful motion	
§4.71a Rating	10%	0%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee at 10%, coded 5257 (other impairment of the knee), citing pain and instability after ACL reconstruction.  The VA initially determined that the knee was not service connected, but later rated it at 0%, coded 5257-5258, (other impairment of the knee – dislocated meniscus with locking, pain, and effusion), on the 9 May 2012 VA rating decision (VARD), retroactive to separation.  This was subsequently increased to 10%, again retroactive to separation, on the 30 October 2013 VARD, coded 5260 (limitation in flexion).  The CI was rated at 10% for pain IAW VASRD §4.59 (painful motion).  Although the VA included a meniscal tear in its determination, the evidence does not show that this was ever diagnosed as a definitive diagnosis.  The ROM was not compensable.  The CI did show some laxity on examination of the ACL, but this was typically within the normal range after a reconstruction such as he had.  The Board considered the evidence and found no route to a rating higher than the 10% adjudicated by the PEB.  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 right knee condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the right shoulder and hearing loss conditions were 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 shoulder was not profiled.  The CI was given a H2 profile for the hearing loss.  However, the Board noted that the CI actually improved in most frequencies from his baseline, established three weeks after he began his second tour.  Neither condition was implicated in the commander’s statement nor judged to fail retention standards.  Both were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that either 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 determination for either contended conditions and so no additional disability ratings are 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 right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended right shoulder pain and sensorineural hearing loss 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. 

RECOMMENDATION:  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

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 XXXXXXXXXXXXXXXXXX, AR20160003596 (PD201401088)

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