RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01795
BRANCH OF SERVICE:  Army	BOARD DATE:  20141217
SEPARATION DATE:  20090219

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Counterintelligence Agent) medically separated for a left knee condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent U2L3 profile and referred for a Medical Evaluation Board (MEB).  The left knee condition, characterized as “chronic left knee pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded three other conditions (bilateral wrists, frequent headaches and chronic facial dermatitis) for PEB adjudication.  The Informal PEB adjudicated “chronic pain and instability, left knee” as unfitting, rated 20%, with likely application of the VA Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting and therefore not ratable.  The CI made no appeals and was medically separated.

CI CONTENTION:  “All Conditions”

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:

Service IPEB – Dated 20081107	VA - (2 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain and Instability, Left Knee	5257	20%	Left Knee Strain, S/P Open Reduction Internal Fixation	5258-5260	10%	20090407	
Bilateral, Negative Ulnar Variance with Restricted Wrist Ranges of Motion	Not Unfitting	Residuals, Right Dorsal Wrist Ganglionectomy	5215	10%	20090407	
Frequent Headaches	Not Unfitting	Migraine/Cluster Headaches with Visual Disturbance	8100	0%	20090407	
Chronic Facial Dermatitis	Not Unfitting	Seborrheic Dermatitis	7899-7806	0%	20090407	
Other x 0 (Not In Scope)	Other x 0	
Combined:  20%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20090622 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Left Knee Condition.  The treatment record indicated the CI first injured his left knee (while running) in September 2005.  During the next 19 months (September 2005-April 2007), he re-injured his left knee two additional times and underwent two separate orthopedic stabilization surgeries with removal of adjacent inflammatory tissue.  Despite aggressive physical therapy and rehabilitation, his knee pain and feelings of instability remained and was referred for an MEB.  He was not recommended for a third surgery.  At the narrative summary exam performed 5 months prior to separation, the CI reported a constant (2/10) ache in his left knee made worse with activities.  Additionally, he endorsed randomly “give-way” of the left knee.  The examiner noted “The knee symptom that bothers [CI] the most is the sensation of instability, the feeling that he is constantly about to fall to the left.  Instability can occur at any time, even if he is standing in one place or walking.”  The MEB physical examination (PE) noted non-painful normal range-of-motion (ROM), normal strength and intact sensation to the lower extremities.  The knee was stable without clinical evidence of instability.  X-rays performed in November 2007 revealed post-surgical and anterior cruciate ligament (ACL) reconstructive changes without evidence of acute boney abnormalities.  The diagnosis was chronic, left knee pain and instability with traumatic arthritis after injuries to the ACL and posterior cruciate ligament.  The commander’s statement implicated the CI’s inability to maintain fitness and alertness level given his present physical condition.  His permanent profile listed left knee pain with instability as one of two diagnoses.  At the VA Compensation and Pension (C&P) examination on 7 April 2009 (6 weeks after separation) the CI reported occasional give-way and swelling of his left knee.  The PE revealed non-painful normal ROM and a normal gait.  Instability tests were positive on the left knee.  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.
DOS 20090219
Left Knee ROM
(Degrees)	MEB ~5 Mo. Pre-Sep
(20080926)	VA C&P ~2 Mo. Post-Sep
(20090407)	
Flexion (140 Normal)	140	140 	
Extension (0 Normal)	0	0	
Comment	-	(+) instability tests	
§4.71a Rating	0%	10%-20%	

The Board directed attention to its rating recommendation based on the above evidence.  Board members first considered and agreed that the C&P exam findings best reflected the knee condition closest to the time of service separation, and therefore assigned it higher probative value in its deliberations.  
The PEB assigned a 20% rating under code 5257 (Knee; other impairment) citing moderate internal derangement with instability, whereas the VA dual coded with 5258-5260 (cartilage, semilunar dislocated-leg, limitation of flexion) and assigned a 10% rating citing painful motion.  While there was no evidence of compensable limitation of motion, the Board agreed that the PEB’s 20% rating was supported under the 5257 code by sufficient evidence of subjective “give-way” symptoms coupled with objective clinical correlation to instability testing.  Members also considered a dual code to include the single 10% rating under 5259 (cartilage, semilunar, removal of, symptomatic), but in this case, the surgeries did not involve semilunar cartilage (meniscus) material.  Absent ankylosis or evidence of boney malunion or nonunion, there were no alternative or analogous coding options that would benefit the CI than the PEB’s current rating.  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 left knee condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral, negative ulnar variance with restricted wrist ROM, frequent headaches, and chronic facial dermatitis 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.  All three conditions were not implicated in the commander’s statement nor judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence 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 the any of the 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 left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended bilateral, negative ulnar variance with restricted wrist ROM, frequent headaches, and chronic facial dermatitis 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 201401795, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

		
XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

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 XXXXXXXXXXXXXXX, AR20150009531 (PD201401795)

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:

Encl		     XXXXXXXXXXXXXXX
			     Deputy Assistant Secretary of the Army
			          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA