RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  xxxxxxxxxxxxxxxxxxxxxxxxx	CASE:  PD-2014-03404
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20090319

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E2, Motor Transport Operator, medically separated for “left knee pain with nondisplaced femoral condyle fracture,” with a disability rating of 10%.  

CI CONTENTION:  The CI contends his left knee dislocates and pain now causes right knee pain.  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 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:  

IPEB - Dated 20090311	VA* - (~6 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Pain w/Nondisplaced Femoral Condyle	5299-5255	10%	**Status Post Nondisplaced Lateral Femoral Condyle Fracture, with Residual Degenerative Joint Disease, Bakers Cyst, Right Knee	5260	10%	20100909	
Patellar Instability	Not Unfitting	
No VA Placement
	
Other MEB/PEB Conditions x 0 (Not in Scope)	Other x 1	
RATING:  10%	RATING:  10%	

ANALYSIS SUMMARY:  

Left Knee Pain with Nondisplaced Femoral Condyle.  The narrative summary noted that the CI’s knee was injured while in route to basic training in September 2008 when a fellow passenger hit his knee with a suitcase while deplaning.  Magnetic resonance imaging of the left knee on 29 October 2008 showed a non-displaced fracture of the lateral femoral condyle and multiple bone contusions in the knee joint.  Physical therapy and 25 days of convalescent leave did not improve the knee symptoms.  At the Medical Evaluation Board (MEB) exam on 22 January 2009, the CI reported left knee pain.  The MEB physical exam noted an abnormal gait.  There was a mild effusion present and tenderness about the knee, with no lateral or anterior instability noted, however, the examiner indicated he was unable to fully assess stability due to the CI’s guarding of movement.  Knee range of motion was flexion 90 degrees (normal 140) and he lacked 15 degrees of extension (normal 0).  Knee X-rays at the MEB exam noted no evidence of persistent fracture, but did show “significant patellar tilt consistent with patellar instability.”

At the VA Compensation and Pension (C&P) exam 9 September 2010, 18 months after separation, the CI reported he had been in a motor vehicle accident in June 2010 which aggravated his knee pain.  The CI reported chronic left knee pain and giving out of the left knee.  He reported use of a single crutch for prolonged walking or with flare-up of knee pain and daily use of a knee brace.  The exam noted a normal gait.  Lower extremity strength and sensation was normal.  There was tenderness of the knee and swelling about the patella.  Left knee ROM was extension-flexion of 0-125 degrees with crepitus and painful motion and no additional loss of ROM with repetition.  There was lateral laxity noted, but no subluxation or anterior-posterior instability.  Left knee X-rays noted degenerative joint disease and a mild to moderate effusion with a possible loose body in the joint.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the knee condition 10%, coded 5299-5255 (analogous to femur impairment).  The VA rated the knee condition 10%, coded 5260 (limited leg flexion).  The Board first noted that the VA exam was outside the 12-month period specified by DoDI 6040.44 for special consideration of post-separation VA evidence.  Additionally, the CI had been involved in a motor vechicle accident 3 months before the C&P exam, which aggravated his knee symptoms.  Therefore, the Board judged that the evidence at C&P could not be relied upon to support the Board’s rating recommendation for knee disability at the time of separation and the MEB exam was the sole exam in record proximate to separation.  Members agreed that the evidence supports a 20% rating coded as 5261 based upon lack of full leg extension of 15 degrees.  

The Board reviewed to see if a higher evaluation was achieved with any other applicable code, but there was no evidence of leg flexion limited to 60 degrees or less; malunion or nonunion of the femur, tibia, or fibula; or, signs of meniscus (semilunar cartilage) pathology.  The CI reported that his patella was subluxed or dislocated during the initial traumatic injury, but was relocated without medical intervention and knee X-rays at the MEB exam showed a patellar tilt “consistent with patellar instability”.  However, the Board noted that there was no documentation of recurrent subluxation or lateral instability (other knee impairment) in the STR or at the MEB exam.  The Board concluded that the single episode of traumatic patellar dislocation contributed to the knee disability, but there was no evidence in record that instability was on ongoing problem prior to separation.  Therefore, Members agreed that coding the knee 5299-5257 (analogous to other knee impairment) was not the preferred coding choice and the evidence did not support a separate rating for instability in addition to the rating for limited extension just discussed.  Thus, the Board determined that the evidence supported a 20% rating for the knee condition at separation, coded 5261, and no higher, including consideration of functional loss.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 20% for the knee condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the patellar instability 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.  The MEB forwarded patellar instability as a separate medically unacceptable condition, but the PEB adjudicated it as not unfitting.  As noted above, there was no evidence of residual patellar instability after the initial injury, which was provoked by trauma (hit with suitcase).  The patellar instability condition was not profiled or implicated in the commander’s statement and there was no performance based evidence from the record that this condition significantly interfered with satisfactory duty performance.  Moreover, as noted above, the Board deliberated rating the unfitting knee condition for instability, in addition to limited extension, as established by formal VA policy in effect at the time of separation and concluded that the evidence did not support additional rating based on instability.  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 patellar instability condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the left knee condition, the Board unanimously recommends a disability rating of 20%, coded 5261 IAW VASRD §4.71a.  In the matter of the patellar instability condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Left Knee Pain Condition	5261	20%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140221, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20160008008,  XXXXXXXXXXXXXXXXXXX

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Dear XXXXXXXXXXXXXXXXXXX:

The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability. I have reviewed the Board's recommendation and record of proceedings (copy enclosed) and I accept its recommendation. This will not result in any change to your separation document or the amount of severance pay. A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.

This decision is final. Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction.

A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,