RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03534
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040827

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Signal Support Systems Specialist) medically separated for right knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards.  She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “right knee bone contusions” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated her right knee pain as unfitting and  rated it 20% for moderate and constant pain, citing application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.  

CI CONTENTION:  The applicant requests consideration of all of her application.  Her 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 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 20040722	VA* - Service Treatment Records (STR)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Knee	5099-5003	20%	Bone Contusion with Anterior Cruciate Ligament Disruption, Right Knee	5299-5260	10%	STR	
Other x 0 (Not In Scope)	Other x 9	
RATING:  20%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20041015 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:  The STR) did not contain a VA Compensation & Pension (C&P) examination.  The pertinent historical medical information was obtained from a remote VARD summary.

Right Knee Condition.  The CI injured her right knee on two separate occasions.  The first (December 2003) was diagnosed as a strain and the second (January 2004) was radiographically diagnosed as a complete disruption of the anterior cruciate ligament (ACL); bone contusions to the femur and tibia, and a cartilage defect of the patella (kneecap).  Her initial treatment was physical therapy (PT) and surgical intervention was considered.  By March 2004, the CI continued to complain of right knee pain, occasional swelling, feeling of laxity and a sensation of buckling; although stating “no clear give-way.”  Despite reported symptoms, follow-up orthopedic examinations revealed a stable knee without effusions and near normal range-of-motion (ROM).  The orthopedist opined that the reported ACL disruption on previous X-ray studies was not well visualized and “at most,” the ACL fibers were torn and scarred down to surrounding knee ligaments in a stable position.  A continuation of PT was recommended.  By June 2004, the CI was doing much better and the STR noted, “Walking better.”  Her physical examination (PE) was normal excepting tenderness.  Overall, she improved to normal function, but pain persisted.  She was permanently profiled in June 2004 and referred to a MEB.  At the MEB narrative summary (NARSUM) examination (28 June 2004; 2 months prior to separation), the CI reported an aggravating and persistent sharp right knee pain that was worse after PT and after walking more than 10 minutes.  Her PE revealed a stable right knee with normal ROM.  Tenderness was present and there was no comment regarding painful motion.  Her diagnosis remained right knee bone contusions.  Her pain intensity was assessed as “moderate” and frequency was “constant.”  There was no VA C&P examination in the case file.  A VARD (proximate to separation) indicated that the CI was awarded a 10% rating impairment based upon physical findings of right knee tenderness and pain ‘…which is productive of painful motion and functional loss’ as gathered from the case file.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 20% rating under an analogous 5003 code (degenerative arthritis).  Using an analogous code of 5299-5260 (limited flexion), the VA assigned a 10% rating citing tenderness and pain.  Absent VASRD compensable ROM measurements, Board members considered alternate coding of either 5255 (femur) and or 5262 (tibia) noting the boney contusions on x-rays; however, absent findings of either mal-union or non-union did not support an impairment rating.  There were no other coding options available that would equate to a VASRD impairment rating higher than the PEB’s 20%.  IAW DoDI 6040.44, the Board may not recommend a rating lower than that received prior to application.  Therefore, all evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s 20% rating decision for the right knee condition. 

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 right knee was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the right knee 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. 

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 20140725, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	
SAMR-RB						

15 SEP 2016

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, AR20160004318 (PD201403534)

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.

 						         
Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA