RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01625
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040915

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-1 (Infantryman) medically separated for a left knee condition that could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The diagnoses “medial collateral ligament sprain, left knee,” “medial meniscal tear, left knee,” and “contusion, left lateral femoral condyle and fibular head” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted.  The Informal PEB consolidated the MEB submissions as a single unfitting condition, “chronic pain left knee”, rated 10%, citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.  

CI CONTENTION:  His VA rating was lowered after an appeal.  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 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:  

IPEB - Dated 20040826	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain Left Knee	5099-5003	10%	Internal Derangement, Left Knee	5257-5003	10%	20041122	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 3	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20050309 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY: 

Left Knee Condition.  The service treatment record (STR) corroborated the history in the narrative summary (NARSUM) of initial injury to the knee (twisting/contusion during horseplay) in January 2004 (9 months before separation).  Magnetic resonance imaging (MRI) demonstrated a meniscal tear “small lateral” and the bone contusions described in the MEB submission, but no ligamental injury.  The CI did not respond adequately to conservative treatment; and, an orthopedic entry on 20 April 2004 documented an opinion that surgery was indicated in light of potential benefits, but was refused by the CI who elected an MEB.  Other than an early STR entry which documented flexion to 40 degrees (normal 140, minimum compensable 45), there was no STR evidence for significant range-of-motion (ROM) limitations; various entries describing ROM as grossly normal, and others recording measured flexion in the 115-120 degree range with extension 0 degrees (normal).  The same entry reflecting the severely limited ROM indicated varus instability, but there were numerous STR entries confirming that the knee was stable in all planes.  There were entries which documented subjective locking, but physical examinations negative for meniscal impingement; although, a positive McMurray’s test (indicating meniscal impingement) was recorded on the MEB’s DD Form 2808.  There were two STR entries that noted the presence of an effusion and one that noted its absence (remaining not probative).  There were early STR entries which noted the use of a brace and/or crutches, but no subsequent ones which documented gait disturbance or significant functional limitations; and, there was no STR documentation of incapacitation. 

The NARSUM was conducted 22 June 2004 (3 months prior to separation) and documented “constant” pain rated 5/10 with exacerbations to 8/10 by “squatting, stair climbing and prolonged ambulation for more than one mile.”  The examiner noted a complaint of “locking and buckling...but denies any instability.”  The NARSUM physical examination recorded an antalgic gait, the absence of effusion, tenderness, stability to stress testing in all planes, and a McMurray “positive for pain” (not clearly indicative of impingement which requires mechanical signs).  The NARSUM measured ROM was flexion to 125 degrees.

A VA Compensation and Pension examination was conducted 22 November 2004 (2 months after separation) and documented persistent pain rated 8/10 worsened by negotiating stairs, “standing five minutes,” “walking 2-3 blocks,” (conflicting with one mile tolerance per NARSUM) and lifting.  The examiner noted a complaint of “gives way” but did not reference a complaint of locking; stated that the CI “limps on the left leg” but did not require an assistive device; and, corroborated that surgery had been recommended and declined.  The VA physical examination recorded tenderness, the absence of effusion, a “slightly positive” Lachman (anterior instability), and did not record testing for instability in other planes or for meniscal impingement.  The VA measured ROM was flexion to 125 degrees, specifying painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating analogous to 5003 (degenerative arthritis) was supported by the USAPDA pain policy, but was consistent with VASRD §4.71a criteria for the Service ROM (conceding painful motion).  The VA’s 10% rating under 5257-5003 invoked painful motion.  Members agreed that there was insufficient evidence for separate rating of instability (under code 5257), especially with MRI confirmation of intact ligaments.  Members agreed that there were only two routes to a rating higher than 10% subject to consideration in this case.  Code 5258 (cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint) provides for a 20% rating.  Although the evidence provides some support for the presence of these elements, all are inconsistently present.  Locking was a common subjective complaint (consistent with an unrepaired meniscus), but there is less abundant evidence for the objective presence of mechanical impingement.  The latter was countered by the NARSUM examination and not documented by the VA examiner.  Furthermore, the criterion of frequent effusion is an additional requirement (‘and’ not ‘or’ in the rating language); and, it was sporadically documented in the STR and refuted by both the NARSUM and VA examiners.  Members thus agreed that the criteria for a higher rating under 5258 were not adequately supported by the evidence.  The second route to a higher rating considered by the Board was analogous application of 5299-5262 (tibia and fibula, impairment of) which confers ratings for contiguous knee disability: 10% for “slight,” 20% for “moderate” and 30% for “marked.”  Although the persistent gait disturbance and documented functional limitations (especially those described by the VA examiner) imply fairly significant disability, members agreed that the analogous application of this fracture code which rates for non-union or malunion, with no fracture or such complications present, was not sufficiently justified in this case which satisfies compensable criteria under more applicable joint codes.  It is also noted that any ratable meniscal impingement and a significant degree of the functional impairment would have likely been remedied by the recommended arthroscopic surgery which the CI declined.  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 of the left knee condition.

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 reliance on the USAPDA pain policy for rating was operant in this case and it was adjudicated independently of that policy by the Board.  In the matter of the left 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.

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 20140413, 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, AR20160003241 (PD201401625)

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