RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-01984
BRANCH OF SERVICE:  Army	BOARD DATE:  20141212
SEPARATION DATE:  20050626

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Heavy Vehicle Mechanic) medically separated for a right knee pain condition.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right knee condition, characterized as “right knee ACL [anterior cruciate ligament] deficiency” and “right knee medical/lateral compartment chondromalacia” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition, “bilateral carpal tunnel syndrome,” as medically unacceptable for PEB adjudication.  The Informal PEB adjudicated the “right knee ACL reconstruction … meniscal graft … and residual instability … and chondromalacia …” as unfitting, with a rating of 20%, citing criteria of the VA Schedule for Rating Disabilities (VASRD).  The remaining condition, bilateral carpal tunnel syndrome, was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider 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 20050420	VA - (1 Mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain … ACL reconstruction … meniscal graft … and residual instability … and chondromalacia	5257	20%	Residuals, Anterior Cruciate Ligament Reconstruction and Medical Meniscal Reconstruction, Right Knee	5257	20%	20050602	
Bilateral Carpal Tunnel Syndrome	Not Unfitting	Right Carpal Tunnel Syndrome	8715	0%	20050602	
		Left Carpal Tunnel Syndrome	8715	0%	20050602	
Other x 0  (Not in Scope)	Other x 5 (Not in Scope)	20050602	
Combined:  20%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20051212 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Knee Condition.  The record and narrative summary (NARSUM) noted the CI had a waiver for service entry due to a right knee ACL (bone-tendon-bone) repair.  She had multiple falls and injuries to her knee and required additional surgeries of her knee including two additional ACL reconstructions (hamstring reconstruction, and bone grafts with allograft ACL replacement), as well as a medial meniscal cartilage allograft.  She was noted to have chondromalacia (degeneration of the cartilage) over the lateral tibial plateau and medial compartment (bottom of the knee to the lower leg).  At the NARSUM exam, (3 months prior to separation; and 5 months after surgery) the CI reported “her knee stability while it is improved she still has some instability in her knee and has occasional painful mechanical symptoms.  She has significant pain in the medial aspect of the knee, as well as, catching.”  The MEB physical exam noted right knee range-of-motion (ROM) of 0-145 degrees (normal 0-140 degrees) with anterior (ACL) instability (“Grade I anterior drawer, Grade II Lachman with end point guarding with pivot shift ….”).  The knee was stable to lateral and posterior stressing (“stable varus and valgus stresses at 0 and 30°, stable posterior drawer”).

Radiographs documented retained screws and good alignment of the ACL tunnels with significant degenerative changes (“evidence of multiple ACL surgeries in the past with tunnels currently in good position and retained metallic interference screws … and significant medial tibial plateau sclerosis most likely resulting from her medial meniscus Allograft surgery”).  Radiograph from January 2005 also documented a loose body in the joint space that was “decreased in size and became fragmented compared to previous studies.”

At the VA Compensation and Pension exam performed a month prior to separation, the CI reported a history similar to the NARSUM above.  She was taking narcotic-like pain medication (Tramadol) twice daily.  The CI was wearing a ridged knee brace (St. Luke’s/hinged) and “has a limp, which is really from the brace, and keeps the knee stiff on the right.”  Knee exam documented slight swelling with ROM 0-145 degrees (normal 0-140 degrees).  There was Grade 1 Lachman (instability of ACL) and Grade 1 McMurray sign (for meniscal pathology).  There was no lateral instability and the surgery scars were well healed.  The record indicated that remote from separation, the VA provided temporary 100% ratings in October 2008 and April 2009 based on two knee surgeries convalescence periods, with return to 20% ratings until December 2009 when the rating was reduced to 10%.

The Board directed attention to its rating recommendation based on the above evidence.  The record did not document knee pain or instability on service entry and the PEB did not make any deduction for the CI’s prior to service ACL repair.  Both the PEB and VA rated the knee under code 5257 (Knee, other impairment of:  Recurrent subluxation or lateral instability) as moderate at 20%.  The Board deliberated on if the CI’s degree of instability with additional meniscal signs of catching and pain with knee degeneration warranted a “severe” 30% rating under 5257, or dual knee rating with additional rating under 5259 for meniscal symptoms (catching and pain) that did not overlap with ACL instability symptoms (instability).  The Board considered that the PEB may have applied the AR 635-40, B–5., Pyramiding guidance (one rating for one body part) which historically was interpreted to disallow dual rating of the knee.  The VASRD §4.14, Avoidance of Pyramiding, language and interpretation specifically permit separate coding for instability and meniscal and/or limited ROM coding (meniscal coding includes pain and pain-limited motion).

The NARSUM exam was considered to have the highest probative value as it was the most detailed and included a robust description of symptoms and limitations that impacted rating the knee.  There was clear ACL insufficiency and instability with required use of a hinged-brace, and multiple falls following the last in-service surgery.  The CI continued to have significant pain and catching symptoms that were most attributable to her meniscal replacement and cartilage and bone degenerative changes.  The Board adjudged that the knee instability, absent any meniscal symptoms, remained ratable at moderate (20%), while the meniscal and degenerative joint symptoms warranted a separate 10% rating under code 5259.  There was not sufficient evidence of “frequent episodes of ‘locking,’ pain, and effusion into the joint” to warrant the higher 20% meniscal rating under code 5258.  The two additional knee surgeries over 2 years after separation were considered post-separation worsening (followed by post-separation improvement) and not indicative of the CI’s disability picture at separation.

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends two disability ratings for the right knee condition; 20% for the ACL instability coded 5257, and 10% for the meniscal and chondromalacia symptoms coded 5099-5259.

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that bilateral carpal tunnel syndrome (CTS) was not unfitting.  The CI was right hand dominant.  The Board’s threshold for countering fitness determinations remain adherent to the DoDI 6040.44 “fair and equitable” standard.  The Board considered, based on a preponderance of the evidence, if the CTS condition would have independently (or in combination) resulted in MEB referral and a PEB finding that the member was unfit due to physical disability.  The bilateral CTS were not implicated in the commander’s statement or profile.  Available profiles did not list CTS; however, the DD Form 2807 (examiner’s portion) noted that wrist braces were used (for CTS).  The DD Form 2808 noted bilateral CTS as a significant defect and diagnosis with a U1 profile recommended.  Bilateral CTS was adjudged by the MEB to fail retention standards.

The diagnosis of CTS was made during the timeframe when the CI was using crutches due to her unfitting knee condition.  She had symptoms of tingling and numbness in the hands and positive exam findings for CTS (Tinel’s sign, carpal compression test, and reverse Phalen's test) at the NARSUM exam.  There was no muscle atrophy or decreased strength in the hands.  Electrophysiological studies were normal.  The prior to separation VA exam documented normal hand findings.  There was insufficient performance based evidence from the record that bilateral CTS 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 bilateral CTS condition 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, the Board majority recommends two disability ratings for the right knee condition; 20% coded 5257, and 10% coded 5099-5259, both IAW VASRD §4.71a.  In the matter of the contended bilateral CTS 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.

RECOMMENDATION:  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Right Knee pain … 	Anterior Cruciate ligament … and Instability	5257	20%	
	Chondromalacia and Meniscal Allograft	5099-5259	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140428, 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, AR20150010360 (PD201401984)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

3.  I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures.

BY ORDER OF THE SECRETARY OF THE ARMY:

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