RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01535
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090503

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Automated Logistical Specialist) medically separated for right knee pain from chondromalacia, rated at 10%.  

CI CONTENTION:  The CI contends his rating should have been higher at time of separation.  His 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 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 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 20090128	VA* - ~2 Mos. Pre-Separation  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain from Chondromalacia	5099-5003	10%	Right Knee Degenerative Joint Disease	5260-5003	10%	20090316	
Anxiety Disorder	Not Unfitting	Posttraumatic Stress Disorder (PTSD)	9411	50%	20090316	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 10 	
RATING:  10%	COMBINED RATING:  80%	
*Derived from VA Rating Decision (VARD) dated 20090625 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  

Right Knee Pain Condition.  According to service treatment records and the narrative summary (NARSUM), the CI initially underwent right knee surgery in December 2000 for a torn medial meniscus.  He underwent a second right knee surgery in August 2007 for a medial meniscus tear and chondromalacia of the medial and lateral femoral condyles, trochlea and patella.  Despite treatment, the CI’s knee condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for a Medical Evaluation Board (MEB).  The MEB NARSUM examination on 23 December 2008, approximately 4 months prior to separation noted that the CI reported chronic right knee pain and an inability to perform his MOS duties due to the pain.  The physical exam findings are summarized in the chart below. At the VA Compensation and Pension (C&P) examination performed on 16 March 2009 approximately 2 months before separation, the CI reported daily knee pain and flare-ups with running, and going up and down stairs.  A right knee X-ray showed arthritis and post-operative changes.  The physical exam findings are summarized in the chart below.

Right Knee ROM
(Degrees)	MEB ~4 Mo. Pre-Sep
	VA C&P ~2 Mo. Pre-Sep
	
Flexion (140 Normal)	100	140	
Extension (0 Normal)	0	0	
Comment	painful motion	painful motion	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10% coded 5003, (Arthritis, degenerative (hypertrophic or osteoarthritis) citing motion limited by pain.  The VA rated the right knee condition 10% (coded 5260, (Leg, limitation of flexion of), with 5003 citing painful motion.  There was no limitation of motion which attained a minimum 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), frequent locking with effusions or any indication of dislocated meniscus or loose body (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 right knee condition.  

Contended PEB Condition.  The contended condition adjudicated as not unfitting by the PEB was anxiety disorder.  The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudications.  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.  A review of the record in evidence documented treatment for this condition beginning in May 2008.  At the time of the NARSUM, the condition was considered stable.  The CI had reportedly responded well to talk therapy and antidepressant medication.  In a mental health entry dated 28 August 2008, his treatment provider noted the CI began treatment in May 2008 and at the time he had difficulty with sleep, nightmares, and hypervigilance/hyperarousal.  It was also noted that he had reportedly witnessed his friend cut in half by an IED.  Since his initial presentation, he reportedly responded to treatment, and was and no longer had issues with sleep or nightmares.  The provider noted that the CI “does not fall below retention standards for behavioral health reasons.”  The last entry, 21 October 2008, approximately 6 months before separation recorded the diagnosis of adjustment disorder.  The Board noted that no mental health condition was profiled, none were implicated in the commander’s statement, and none were judged to fail retention standards.  There was no indication from the record that any 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 any mental health condition and therefore, no additional disability rating can be 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.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination.   

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140303, with attachments
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, AR20160003136 (PD201401535)

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