RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03393
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090203

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Combat Engineer) medically separated for a right knee condition.  The right knee condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS).  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  “Right knee pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (low back pain [LBP]) for PEB adjudication. The Informal PEB adjudicated the “internal derangement of right knee” as unfitting, rated 20%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and DoDI 1332.39.  The remaining LBP condition was determined to be not unfitting.  The CI made no appeals and was released from active duty and eventually medically separated from the Arkansas National Guard.

CI CONTENTION:  The CI requests the Board consider all conditions.  His complete submission is at Exhibit A.

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 20080429	VA* - (~5 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Internal Derangement of Right Knee…	5299-5257	20%	Status Post ACL Reconstruction and Revision with Meniscal Allograft Medially, Right Knee	5260	10%	20080916	
			Residual Arthroscopic Scars, Right Knee	7804	10%	20080916	
Low Back Pain	Not Unfitting	Lumbosacral Strain and Fracture	5237	NSC	20080916	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 3 	
RATING:  20%	COMBINED RATING:  20%	
*Derived from VA Rating Decision (VARD) dated 20090512 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY:

Right Knee.  The CI sustained a right knee injury in 2007.  He was evaluated by orthopedic surgery in March 2007, diagnosed with a right anterior cruciate ligament (ACL) tear, and underwent an ACL reconstruction.  A magnetic resonance imaging (MRI) study performed 11 June 2007 demonstrated a partial re-tear of the ACL reconstruction, a medial meniscus tear, chondromalacia of the patella and osteoarthritis.  On 18 September 2007 the CI underwent a right ACL repair and meniscal transplantation.  Despite post-operative physical therapy (PT) , the CI continued to report pain and right knee instability.  At the narrative summary (NARSUM) examination 10 months prior to separation, the CI reported 4/10 right knee pain which increased to 10/10 with impact activities.  The physical examination demonstrated varus and valgus laxity in the right knee with positive Lachman’s and anterior draw indicative of anterior posterior ligamentous laxity.  At the VA Compensation and Pension (C&P) examination 5 months after separation, the CI reported right knee pain, instability, weakness, and stiffness.  The physical examination demonstrated right knee tenderness, swelling, and painful motion.  There was also crepitation, but no instability.  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.

Right Knee ROM
(Degrees)	PT ~10 Mos. 
Pre-Separation	PT ~5 Mos. 
Pre-Separation	VA C&P ~5 Mos. 
Post-Separation	
Flexion (140 Normal)	129	135	75	
Extension (0 Normal)	0	0	0	
Comment	Lachman’s 3A	Instability and pain	No instability	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the internal derangement of the knee condition at 20% for moderate instability, coded 5299-5257 (analogous to knee, other impairment of).  The VA rated the condition at 10% coded 5260 (leg limitation of flexion) and 10%, coded 7804 (painful scar).  The Board noted that the PEB rated the condition for instability.  The Board deliberated the application of dual ratings, based on separate ratings for instability and painful motion.  This was sanctioned by VA Training Letter TL 04-22 (1 October 2004), which is applicable for Board recommendations by precedent and legal opinion. Members were satisfied that the evidence cited above provides adequate support for dual ratings of 10%, coded 5257 (knee slight instability) and 10%, coded 5099-5003 IAW VASRD § 4.59 (painful motion).  The Board noted that there was no evidence of giving way symptoms when walking down stairs or slopes or buckling which resulted in falls for a higher rating based on moderate to severe 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 10% for instability and 10% for painful motion for the right knee condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the LBP condition was 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.  Treatment records evidence that the CI sustained a fractured lumbar vertebrate in 2005.  The CI was released and deployed to Iraq.  During his tour in Iraq he reported worsening back pain.  At an MEB PT evaluation 5 months prior to separation, the CI reported LBP as 0/10.  The therapist documented normal thoracolumbar motion without pain, fatigue or weakness with repetitive motion.  At the VA C&P examination performed 5 months after separation the CI reported LBP radiating to the left greater than right lower extremities. On physical examination there was full, but painful thoracolumbar ROM.  The LBP condition was not profiled, implicated in the commander’s statement, and not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance.  After due deliberation, and 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 chronic LBP contended 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.  As discussed above, PEB reliance DoDI 1332.39 for rating the right knee condition was operant in this case and the condition was adjudicated independently of that instruction by this Board.  In the matter of the right knee instability, the Board unanimously recommends a disability rating of 10%, coded 5257 IAW VASRD §4.71a.  In the matter of the right knee painful motion, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended LBP 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, effective as of the date of his prior medical separation:

CONDITION	VASRD CODE	RATING	
Right Knee Instability 	5257	10%	
Right Knee Painful Motion	5099-5003	10%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140628, 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 XXXXXXXXXX, AR20160004092 (PD201403393)

1.  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, accept the Board’s recommendation to modify the individual’s disability description without modification of the combined rating or re-characterization of the individual’s separation.  This decision is final. 

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.   

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:

CF: 
(  ) DoD PDBR
(  ) DVA