RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02412
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070118

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E1, Combat Engineer, medically separated for “left knee instability,” with a disability rating of 20%.

CI CONTENTION:  Please consider all conditions.  The CI’s 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 Physical Evaluation Board (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 based upon a 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 PEB - 20061214	VARD - 20080404	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Instability	5257	20%	Left Knee, Multi-ligament Instability, Following
Reconstructive Surgery 	5010-5257	10%	20080312	
OSA	Not Unfitting 	OSA	6847	30%	20080313	
Right Wrist Pain	Not Unfitting 	Derangement Of Distal Radial-Ulna Joint, Right	5215	0%	20080312	
Mild TBI	Not Unfitting 	TBI W/Residual Headaches	8045-8100	10%	20080312	
Lumbar Spondylosis	Not Unfitting 	S/P Fracture of L1, L2 and L3, Lumbar Spine	5235	20%	20080312	
Splenectomy	Not Unfitting 	Splenectomy	7706	20%	20080312	
Left Ankle	Not Unfitting 	Left Ankle Fracture	5271	0%	20080312	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  100%	

ANALYSIS SUMMARY:  

Left Knee Instability.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI obtained a severe left knee injury secondary to a motor vehicle accident (MVA) while deployed in November 2005.  Upon recovery from other life-threatening injuries, he underwent ligamentous surgical reconstruction of the left knee on 11 January 2006.  Post-surgical rehabilitation did not resolve his persistent left knee pain nor result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “left knee, multi-ligament instability, persisting following reconstructive surgery” for PEB adjudication.  At the MEB NARSUM examination on 27 April 2006, 9 months prior to separation, the CI endorsed a sharp pain in his left knee with every step.  “His knee threatens to buckle and wobble.”  His physical examination (PE) revealed evidence of left knee instability as well as painful range of motion (ROM).  His gait was described as “normal.”  At 5 months prior to separation his left knee ROM measured 130 degrees of flexion and 5 degrees of extension.  At the VA Compensation and Pension (C&P) examination performed 14 months after separation, the CI reported left knee pain after walking approximately 50 feet and standing more than 4 minutes.  His PE revealed mild tenderness and effusion about the left knee.  ROM was near normal in both flexion and extension.  Tests of instability were moderately positive.    

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition 20%, coded 5257 (knee; other impairment) citing instability.  The VA rated the left knee condition 10% coded 5010-5257 (traumatic arthritis-other impairment) citing mild laxity of the knee.  There was no limitation of motion which supported a positive rating under the diagnostic codes for limitation of flexion or extension (5260, 5261); however, the more probative MEB examination clearly demonstrated painful motion to support a 10% impairment rating IAW VASRD §4.59.  Additionally, Board members agreed that the level of instability would rate no greater than 10% (slight) impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% coded analogously as 5099-5003 and an additional 10% for left knee instability under code 5257. 

Contended PEB Conditions.  Obstructive sleep apnea (OSA), chronic right wrist pain, mild traumatic brain injury (TBI), lumbar spondylosis, splenectomy, and left ankle conditions.  There were few individual clinical encounter documents contained in the case file and therefore, the majority of clinical evidence with regard to the contended conditions were obtained from MEB-driven documents such as the NARSUM and VA evaluations.

Chronic Right Wrist Pain and Left Ankle Fracture, Healed.  Pursuant to an off-duty repelling accident, the CI sustained a fracture of his left ankle and right wrist in June 2005.  He underwent surgical correction of the ankle and the wrist was treated by simple casting.  The NARSUM examination noted, “His ankle is sometimes painful.”  There was no further comments or complaints regarding the right wrist.  The PE revealed both ankle and wrist joints as “stable” with “normal motion.”  Although the right wrist condition was listed on the original profile, neither condition was implicated by the commander’s statement nor was judged to fail retention standards.  Each condition was reviewed and considered by the Board.  There was no performance based evidence from the record that either of these conditions significantly interfered with satisfactory duty performance.   After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the right wrist and left ankle conditions and so no additional disability ratings are recommended.

Splenectomy.  As part of the CI’s emergent life-saving surgical treatment, his spleen was removed in November 2005.  His recovery from abdominal surgery was uneventful and the specific condition was not profiled, included in the commander’s statement, nor found to fail retention standards.  There was no performance based evidence from the record that undergoing the surgical procedure significantly interfered with satisfactory duty performance.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the splenectomy condition and so no additional disability rating is recommended.

Mild TBI.  The CI originally developed headaches and short-term memory loss approximately 2-3 months after his MVA while deployed.  Follow-up neurology evaluation performed on 22 September 2006, 4 months prior to separation, revealed improvement of both reported symptoms.  He reported headaches as occurring “once a month” and lasting on an average of 30 minutes.  The provider additionally noted the following: 	

“[The CI’s] headaches do not impact his ability to perform clerical work in the Med Hold Company.  He has not missed work due to headaches or required emergency room visits for headaches.    Headaches have not impacted his ability to perform PT.  His short term memory complaints have as well improved since his last visit.  He reports that he has not noted any impact of prior deficits on his current function.”  

The mild TBI condition was not listed on the original profile nor was implicated by the commander’s statement or judged to fail retention standards.  The condition was reviewed and considered by the Board.  There was no performance based evidence from the record that mild TBI significantly interfered with satisfactory duty performance.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the mild TIB condition and so no additional disability rating is recommended.

Obstructive Sleep Apnea (OSA).   The case file contained a single sleep study report of 15 June 2006 that revealed a diagnosis of “mild OSA.”  The CI was never placed on nor recommended to be placed on a continuous positive airway pressure (CPAP) device.  The mild OSA condition was not listed on the original profile nor was implicated by the commander’s statement or judged to fail retention standards.  The condition was reviewed and considered by the Board.  There was no performance based evidence from the record that the mild OSA condition significantly interfered with satisfactory duty performance.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination OSA condition and so no additional disability rating  is recommended.  

Lumbar Spondylosis.  X-ray evidence revealed that the CI sustained non-vertebral body fractures of the transverse process of L1, L2, and L3 as well as fractures of the spinous process of L2 and L3 secondary to his MVA.  At the NARSUM examination, 9 months prior to separation, the CI endorsed non-radiating left-sided LBP described as “pretty constant and mild” with an average pain scale of 4-5/10.  The provider noted, “At present, [the CI’s] back pain precludes sit-ups and running.”  On PE, there was no tenderness present and lower extremity motor/sensory components were normal.  Although the provider noted normal thoracolumbar ROM (fingertips reach his lower legs), a physical therapy (PT) encounter 1 day prior indicated decreased flexion to 75 degrees and a combined ROM of 220 degrees measured with an inclinometer.  His VA examination, 14 months after separation, revealed tenderness and “mild spasm” about the lumbar spine.  ROM was painful and significantly decreased with flexion to 40 degrees and extension to 20 degrees (90 and 30 degrees respectively is normal).  

The Board directed attention to its rating recommendation based on the above evidence.  The VA assigned a 20% rating coded 5235 (vertebral fracture or dislocation), citing limited ROM as found on the 14 month remote separation VA examination.  This case presented with several parameters that were either not consistent with VASRD guidelines or standard time frames for evidential value.  These included the non-standard use of an inclinometer for ROM measurements as well as VA clinical evidence being outside of 12 months from separation.  Board members extensively deliberated as to the fitness determination of the low back condition and agreed that despite the inconsistencies as stated above, the back condition would interfere with his inability to perform the military duties of a combat engineer which requires performing strenuous physical activities over long periods of time (construct fighting positions, fixed and floating bridges and obstacles and defensive position).    

Board members agreed that sufficient evidence of painful motion was present which did not result in either an abnormal gait or spinal contour to support a 10% rating IAW VASRD §4.59 and  §4.71a.  All Board members agreed that a rating higher than 10% was not justified.  After due deliberation, the Board agreed that the preponderance of the evidence with regard to the functional impairment of the lumbar contended condition favors its recommendation as an additionally unfitting condition for disability rating.  It is appropriately coded 5235 and meets the VASRD §4.71a criteria for a 10% rating.  There was no associated unfitting radiculopathy and or evidence of intervertebral disc syndrome resulting in incapacitating episodes that could be considered for a separate rating. 

BOARD FINDINGS:  In the matter of the left knee condition, the Board unanimously recommends a combined disability rating of 20%; coded 5257 at 10% and 5099-5003 at 10% IAW VASRD §4.71a.  In the matter of the contended lumbar condition, the Board unanimously agreed that it was additionally unfitting and unanimously recommends a disability rating of 10% coded 5235 IAW VASRD §4.71a.  In the matter of the contended obstructive sleep apnea (OSA), chronic right wrist pain, mild traumatic brain injury (TBI), splenectomy, and left ankle 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.  

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

CONDITION	VASRD CODE	RATING	
Left Knee Instability 	5257	10%	
Left Knee Pain	5099-5003	10%	
Lumbar Spondylosis	5235	10%	
RATING	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140523, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXX AR20160016561 (PD201402412)

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 re-characterize 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:

			      
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA