RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02292
BRANCH OF SERVICE:  Army	BOARD DATE:  20150403
Separation Date:  20081116

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Motor Transport Operator) medically separated for left knee.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “left knee instability,” “left thigh group XIV muscle atrophy,” “patellar chondromalacia, left knee” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded six other conditions (see rating chart below) for PEB adjudication.  The Informal PEB adjudicated “left knee instability,” as unfitting, rated 20%, with application Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition(s) were 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 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 20080520	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Instability	5257	20%	Left Knee Instability	5257	10%	20090128	
Systemic Hypertension	Meets Retention Standards	Hypertension	7101	10%	20090128	
Tonsillitis	Meets Retention Standards	Not Addressed	
Lumbago	Meets Retention Standards	Lumbar Strain	5237	10%	20090128	
Eczema	Meets Retention Standards	Eczema	7806	0%	20090128	
Benign Testicular Neoplasm	Meets Retention Standards	Benign Testicular Neoplasm	7819	0%	20090128	
Mild High Frequency Hearing Loss	Meets Retention Standards	Not Addressed	
Other x 0	Other x2	
RATING:  20%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20090218 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.
Left Knee Instability Condition.  The CI injured his left knee on 2 December 1999 while running on an uneven course, carrying over 70 pounds of gear and weaponry, he jumped over a large ditch and landed on his left knee sustaining a hyperextension injury.  When this injury occurred he heard a loud pop and fell backwards to the ground.  He was transported to the ER, where an Ace wrap was applied and he was released on a temporary profile, however, no left knee X-rays were done.  He was being followed by a physician assistant (PA) and continued to perform physical therapy (PT) although he was continued on temporary profiles.  In May and September 2000, the CI aggravated his left knee during a ruck march and PT test.  He was reevaluated and placed on temporary profiles.  The CI was seen by Medicine on 16 January 2001 for retropatellar knee pain, pain with running and walking up and down stairs.  There were physical exam findings of full range-of-motion (ROM) with crepitus.  The examiner diagnosed probable left retropatellofemoral syndrome (RPFS) and recommended quad strengthening and hams string stretching along with a non-steroidal anti-inflammatory drug (NSAID).  The left knee X-ray was normal.  The medical provider noted increased left knee pain with kneeling, stair climbing and running.  There were physical exam findings of positive patellar tenderness.  The examiner diagnosed RPFS and ordered another temporary profile, and ice compresses to the left knee.  A second left knee X-ray done was normal.  The ER noted recurrent knee pain with poor response to NSAID.  A third left knee X-ray was normal.  A left knee magnetic resonance imaging (MRI) showed a probable chronic tear of the anterior cruciate ligament (ACL).  The CI underwent preoperative PT and was given a permanent L2profile.  The Orthopedist diagnosed left knee patellar tendonosis and RPFS and did not recommend reconstruction due to the chronic ACL deficient left knee.  The CI was seen by a second Orthopedist at a different base and was diagnosed with patellar chondromalacia and referred for continued PT.  The CI continued with left knee pain and patellar tenderness and was followed by Family Practice.  The MEB narrative summary (NARSUM) exam 7 months prior to separation documented left knee pain with aching tightness and stiffness that was worse after activities and radiated to the calves and legs and rated pain at 4-8/10.  The pain was exacerbated by walking more than 1500 meters at his own pace, running any distance, climbing in and out of military vehicles, walking up and down stairs, lifting more than 35 pounds, carrying more than 20 pounds and sitting in place for more than 10 minutes or standing for more than 5 minutes.  He also reported awakening at night for approximately one time per week due to pain.  He further reported left infrapatellar effusions and swelling that worsened with any partial knee squats, rising from a seated position.  He required a hinged left knee brace with patellar stabilizing donut on a daily basis.  The MEB NARSUM physical exam findings are summarized in the chart below.  A repeat left knee MRI showed no evidence of muscle atrophy, slight laxity in the distal ACL fibers and chronic ACL tear.  The VA Compensation and Pension (C&P) exam approximately 2 months after separation documented that the left knee was progressively worse since discharge.

There were two ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Left Knee ROM (Degrees)	MEB 7 Mo. Pre-Sep	VA C&P 2.5 Mo. Post-Sep	
Flexion (140 Normal)	112	130	
Extension (0 Normal)	0	0	
Comment	Pos. painful motion & antalgic gait; Mild atrophy w/ weakness left thigh; Pos. signs of instability on exam with crepitus; Normal reflexes	Pos. painful motion & thigh muscle atrophy; Normal reflexes; using a cane/brace	
§4.71a Rating	20%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the left knee instability condition as 5257 (other impairment of the knee) and rated at 20% - Moderate.  The VA coded the left knee instability condition as 5257 and rated at 10% - Slight.  There were two MRI’s which demonstrated a chronic ACL tear which caused left knee instability.  The Board considered the fact that the evidence clearly supported that the CI had painful motion in the left knee.  Both the MEB and the VA C&P examiners documented pain with all ROM.  VASRD §4.71a specifies for 5003 that “satisfactory evidence of painful motion” constitutes limitation of motion and specifies application of a 10% rating “for each such major joint or group of minor joints affected by limitation of motion.”  This case justifies Board consideration of separate ratings for instability and painful motion as established by formal VA policy in effect at the time of separation (General Counsel Opinion of 1 July 1997 and Fast Letter 04-22 of 1 October 2004).  By prior legal opinion and firm precedent, the Board adheres to this guidance.  The MEB examiner noted Grade 2A Lachman’s with 8mm translation which demonstrates instability.  The CI was required to wear a hinged left knee brace with patellar stabilizing donut on a daily basis.  The rating criteria for code 5257 requires a subjective determination of slight, moderate, or severe, to assign a 10, 20, or 30% rating respectively.  In order to promote uniformity across the Board, the follow guidelines are used as a starting point for deliberations in an attempt to use objective evidence for applying subjective rating criteria:

Severe disability connotes debilitating pain with functional limitations on most occupational tasks, many domestic chores, and at least some essential activities of daily living.

Moderate disability connotes significant or near constant pain with functional limitations on some occupational tasks and domestic chores; but little interference with routine activities, and no interference with essential activities of daily living.

Mild or Slight disability is a reasonable characterization for impairment or pain not resulting in at least moderate functional limitations as described above; generally interfering only with relatively strenuous or non-essential activities. 

The file did not contain any evidence of frank instability episodes and supported that the CI’s pan primarily interfered with relatively strenuous activities.  Board members agreed that the evidence supports that the CI had a mild degree of left knee instability.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the left knee instability coded 5284 and 5099-5003.

Contended PEB Conditions.  The contended conditions adjudicated as not unfitting by the PEB were systemic hypertension, tonsillitis, lumbago, eczema, benign testicular neoplasm and mild high frequency hearing loss.  The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications.  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.  None of these conditions were profiled; none were implicated in the commander’s statement; and, none were judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  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 the systemic hypertension, tonsillitis, lumbago, eczema, benign testicular neoplasm and mild high frequency hearing loss contended conditions and, therefore, no additional disability ratings 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 left knee instability condition, the Board unanimously recommends a dual disability rating of 10% coded 5257 with an additional 10% coded 5099-5003 both IAW VASRD §4.71a.  In the matter of the contended systemic hypertension, tonsillitis, lumbago, eczema, benign testicular neoplasm and mild high frequency 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 20140521, 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 XXXXXXXXXXXXXXXXXXXX, AR20150014937 (PD201402292)

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						    
						         
CF: 
(  ) DoD PDBR
(  ) DVA