RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02879
BRANCH OF SERVICE:  Army	BOARD DATE:  20150505
SEPARATION DATE:  20071122

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-5 (Motor Transport Operator) medically separated for chronic left knee and right knee pain conditions.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent P3L3 profile and referred for an Medical Evaluation Board (MEB).  The “bilateral knee pain” and “right knee osteoarthritis,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded obstructive sleep apnea (OSA) and plantar fasciitis for PEB adjudication.  The Informal PEB (IPEB) adjudicated “chronic right knee pain” and “chronic left knee pain,” as unfitting, rated 10% and 0%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy to the left knee condition.  The remaining conditions were determined to be not unfitting.  The CI appealed to the Formal PEB (FPEB), which changed the right knee condition to “chronic right knee instability” and increased the rating to 20%.  The left knee finding and rating were affirmed.  The CI made no further 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 condition 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 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:

FPEB – Dated 20070925	VA* - (~2 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Instability	5257	20%	DJD R Knee, ACL and Meniscal Tears	5299-5260	0%	20080110	
Chronic Left Knee Pain	5099-5003	0%	Left Knee Pain	5299-5260	NSC	20080110	
OSA	Not Unfitting 	Sleep Apnea	6847	50%	20080110	
Plantar Fasciitis	Not Unfitting	Left Plantar Fasciitis	5099-5020	0%	20080110	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 1	
RATING:  20%	RATING:  50%	
*Derived from VA Rating Decision (VARD) dated 20080605 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:

Chronic Right Knee Instability.  On the 6 August 2005 medical examination, the CI reported a history of right knee surgery, but denied pain with activity.  Subsequent records showed that this was secondary to a skiing accident (in a non-duty status).  He was issued an L2 profile and an alternate PFT was authorized.  A month later, he was cleared for deployment.  On 12 October 2005, a month after activation, he reported that he had injured both knees in training the week prior, but did not specify a mechanism of injury.  On examination, he had normal motion but was tender to palpation.  He also reported a prior history of knee injury and was on a permanent profile.  At some point he was issued a knee brace and was able to continue duty.  On 19 April 2006, he again injured his knee climbing up and down on a forklift and then again while on a treadmill in August 2006.  At a review on 7 September 2006, it was recorded that he had repair of the right ACL (anterior cruciate ligament, which provides forward stability for the knee) twice, in 1996 and 2004, and another knee surgery in 2002 (repair of a lateral meniscus tear).  He was thought to have a tear of the right medial meniscus (MMT) which was repaired on 7 September 2006.  The recovery was complicated by treatment for alcohol abuse (a long standing problem).  His active duty tour was extended for medical treatment and for the MEB.  An X-ray on 29 December 2006 was remarkable for degenerative changes and for evidence of the prior surgery.  An MRI on 5 January 2007 noted a re-tear of the ACL graft, degenerative changes of the cartilage and bone, and a MMT.  His pain persisted despite rehabilitation and he was thought to have a loose body in the knee which was removed on 28 March 2007.  At an orthopedic evaluation on 2 May 2007, the examination of the right knee showed “no deformity” and he was given the first of a series of injections into the knee.  These were beneficial in reducing his pain.  In physical therapy (PT) 2 weeks later, he was noted to have 3 degrees of extension to 113 degrees of flexion range-of-motion (ROM) of the knee.  The narrative summary (NARSUM) was dated 20 June 2007.  He was noted to have laxity of the ACL without a firm endpoint (consistent with a tear), signs of meniscal tears, and signs of degenerative changes.  Minimal effusion was present which was thought to be residual from the operation in late March.  The ROM had improved to 0 degree extension and 128 degrees flexion at a PT follow-up on 2 July 2007.  On 12 September 2007, the CI was evaluated in PT; the knee was stable for ACL testing, but painful when the medial collateral ligament (MCL, a ligament on the inside aspect of the knee) was stressed consistent with slight instability.  A repeat MRI on 19 September 2007 showed post-surgical changes from the multiple prior surgeries including the pre-service ACL repairs, tears of the right medial and lateral menisci, and degenerative changes of the bone and cartilage of the knee joint.

At the VA Compensation and Pension (C&P) examination performed less than 2 months after separation, the CI reported the prior surgery.  He was noted to be obese and weighed 259 pounds.  His gait was abnormal and he used a cane.  The ROM was normal and he was noted to have laxity of the right ACL.  It was not quantified.  The knee was “tight,” but painful motion was not present.  There was not swelling or an effusion documented.  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.

Right Knee ROM
(Degrees)	PT ~4 Mos. Pre-Sep	MEB ~2 Mos. Pre-Sep	VA C&P ~2 Mos. Post-Sep	
Flexion (140 Normal)	110 (Left 122)	110	140	
Extension (0 Normal)	5 (Left 0)	5	0	
Comment	Limitation in extension secondary to scar tissue; flexion limited by pain	Limited by scar tissue.  MCL pain 	Pain free motion; ACL laxity	
§4.71a Rating	0% for ROM; 10% for pain	0%	0% for ROM.  10% ACL	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the knee at 20% using the code 5257 (knee, other impairment) noting that the existed prior to service component was indeterminate.  The VA used an analogous code, 5299-5260 (limitation in flexion), but rated the knee at 0% citing the C&P examination.  The Board noted that this was subsequently increased to 10% using evidence over 3 years after separation.  The Board considered the ratings.  The use of multiple codes is permitted in there is instability and compensable limitation in flexion and/or extension.  However, the limitations in motion were not compensable.  While the majority of examinations showed non-compensable limitation in motion, the VA C&P, which was the most proximate to separation, was normal.  The Board noted that some examinations indicated laxity of the ACL, which was repaired twice prior to activation and others slight instability of the MCL.  The CI also had surgery of the lateral meniscus prior to activation.  The Board considered the coding options available for the right knee and found no route to a rating higher than the 20% rating adjudicated by the PEB.  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 right knee condition.

Chronic Left Knee Pain.  The CI was also evaluated for left knee pain while in the MEB process.  At an orthopedic appointment for the right knee on 19 December 2006, he was noted to have a normal examination of the left knee including the ROM.  The examination was unchanged at a pre-operative evaluation (for the right knee) in orthopedics on 23 March 2007.  An X-ray of the left knee on 20 April 2007 was normal.  The NARSUM, dated 20 June 2007, documented knee pain with compression of the kneecap (patella), but was otherwise normal including ROM.  

At the VA Compensation and Pension (C&P) exam performed 2 months after separation, the examiner recorded a normal examination including ROM.  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.

Left Knee ROM
(Degrees)	PT ~4 Mos. Pre-Sep	MEB ~2 Mos. Pre-Sep	VA C&P ~2 Mos. Post-Sep	
Flexion (140 Normal)	122	124	140	
Extension (0 Normal)	0	0	0	
Comment	No reason for limitation given.  PT was obese	No reason for limitation given.  PT was obese	Pain free motion	
§4.71a Rating	0%	0%	0%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the left knee at 0% using the code 5099-5003 (analogous to degenerative arthritis) citing the pain policy.  The VA adjudicated the left knee as not service connected as the examination was normal.  The VA subsequently rated the left knee at 10%, effective 31 January 2011, using post-separation evidence and the code 5260 (limitation of flexion).  The Board considered the coding options, but found no route to a compensable 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 contended not unfitting OSA and plantar fasciitis conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The OSA was profiled, but neither condition was specifically implicated in the commander’s statement.  The OSA was judged to fail retention standards.  Both were reviewed and considered by the Board.  There are no records for treatment for either condition until the CI was on medical hold for the right knee.  There was no performance based evidence from the record that either 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 either 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the left knee was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the right and left knee conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended OSA and plantar fasciitis 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 20140515, 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 XXXXXXXXXXXXXXXXXX, AR20150018810 (PD201402879)

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA