RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02442
BRANCH OF SERVICE:  Army	BOARD DATE:  20150522
SEPARATION DATE:  20090701

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Cannon Crewmember) medically separated for a left knee condition.  The left knee condition 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).  “Chronic left knee pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded “migraine headaches,” as medically acceptable, for PEB adjudication.  The Informal PEB adjudicated “chronic left knee pain” as unfitting, rated 10%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition 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 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 20090519	VA* - (~16 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Knee Pain	5099-5003	10%	Left Knee Strain	5299-5261	0%	20101103	
Migraine Headaches	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 	
RATING:  10%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20101229 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Left Knee Condition.  The Service treatment records revealed that the CI fell and twisted his left knee in October 2008.  Radiology tests were positive for “bone bruising” about the left knee.  Orthopedic evaluation deemed surgical intervention was not applicable and the CI proceeded with physical therapy (PT).  Despite conservative treatment he maintained a degree of knee pain and eventually was referred for a MEB.  At the narrative summary examination on 1 April 2009 (3 months prior to separation), the CI reported daily knee pain aggravated with brisk walking, running, or prolonged standing.  His examination revealed mild joint line tenderness and decreased painful motion.  His diagnosis remained chronic left knee pain.  The VA Compensation and Pension examination performed 16 months after separation was normal in all physical parameters.  The goniometric range-of-motion (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.

Left Knee ROM
(Degrees)	MEB ~3 Mo. Pre-Sep
	VA C&P ~16 Mo. Post-Sep
	
Flexion (140 Normal)	132	140	
Extension (0 Normal)	3	0	
Comment	tenderness; 
painful motion	-	
§4.71a Rating	10%	0%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5003 code (degenerative arthritis) whereas the VA analogously coded under 5261 (limitation of leg extension) at 0%, both citing limitation of motion.  Due to the 16 month remoteness of the VA examination from the date of service separation, exclusive probative value was assigned to the MEB examination at 3 months prior to service separation.  While there was no evidence of compensable ROM, the Board agreed that the PEB’s 10% rating was supported under the 5003 coding pathway by sufficient evidence of painful motion (§4.59).  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 migraine headache condition was not unfitting.  The Board’s threshold for countering fitness determination requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The migraine headache condition was not profiled and was not judged to fail retention standards.  The condition was reviewed and considered by the Board.  Although the CI was clinically seen for a headache complaint four times in a single month (without further documentation), Board members agreed that there was no performance based evidence from the record that the migraine headache condition 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 headache condition and so no additional disability rating is 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 migraine headache condition, the Board unanimously agrees that it cannot recommend it for additional disability rating.  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 20140504 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, AR20150014436 (PD201402442)

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