RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03544
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060721

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Automated Logistical Specialist, medically separated for “recurrent subluxation (instability) of the right knee” and “left knee pain,” rated 10% and 0%, respectively, with a combined  disability rating of 10%.  

CI CONTENTION:  “Please Consider All Conditions.”  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:  

SERVICE PEB - 20060710	VARD - 20070426	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Recurrent Subluxation (Instability) of the Right Knee	5257	10%	Right Knee, S/P Anterior Cruciate Ligament Repair and Partial Meniscectomy	5260	10%	20061226	
Left Knee Pain	5099-5003	0%	Left Knee Strain	5260	10%	20061226	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Right Knee Instability.  According to service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI injured his right knee while playing basketball in November 2004. He underwent right knee surgery in February 2005 to repair a complete tear of the right anterior cruciate ligament (ACL) and also had partial medial and lateral meniscectomies performed at the same time.  In the summer of 2005 while crossing a ditch, the CI landed awkwardly onto his right leg and had a repeat buckling event and swelling.  At the same time he injured his left knee (see below).  Thereafter he complained of buckling of the knees.  Magnetic resonance imaging in November 2005 showed an intact graft with degenerative changes and patellar chondromalacia without evidence of meniscal tears.  In February 2006 at an orthopedic visit, right knee pain was present with a full range of motion (ROM).  On examination there was no laxity of the cruciate ligaments.  On 20 April 2006, a physical therapy (PT) exam documented ROM limited by pain (see chart below).  

At the MEB examination (recorded on DD Form 2807 and 2808) dated 23 March 2006, 4 months prior to separation, the CI reported that his right knee “still hurts, gives out, and buckles.”  Physical exam showed a positive anterior drawer sign (instability) with tenderness and trace edema.  At the MEB NARSUM examination, conducted on 3 May 2006, 3 months before separation, the CI reported persistent pain and feelings of instability in both knees.  The physical examiner noted that ligamentous instability and meniscus pathology were negative in the right knee, except for a 1A Lachman’s; and, the ROM of the right knee was 125 degrees.  X-rays of the right knee demonstrated status post ACL reconstructive surgery with a bone island in the lateral aspect of the former growth plate (proximal tibial metaphysis).  A permanent L3 profile was issued in February 2006 for right knee pain, a left knee medial meniscal tear and retropatellar pain syndrome (RPPS) and instability S/P ACL reconstruction with limitations of all functional military activities except wearing a protective mask and all chemical defense equipment as well as no running, no jumping, no rucking, no marching, and performance of an alternate aerobic event for the physical fitness test. The commander’s statement indicated the CI’s knee injuries prevented him from performing his duties because he was unable to stand for long periods of time, lift heavy equipment, or operate heavy machinery.  

At the VA Compensation and Pension (C&P) examination on 26 December 2006, performed 5 months after separation, the CI reported constant pinching/burning pain in his right knee with swelling after walking on uneven ground.  The pain worsened with prolonged standing and walking long distances and he used a brace on the right knee during flares. The CI also reported that he had “difficulty lifting heavy stuff and can’t play sports or run due to pain in his knees.” Physical examination revealed a normal gait, positive tenderness, painful motion, no ligamentous instability or meniscus pathology, and 0-130 degrees ROM with pain at 125 degrees.

The 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)	Ortho ~5 Mos. Pre-Sep
	PT ~3 Mos. Pre-Sep
	MEB ~3 Mos. Pre-Sep
	VA ~5 Mos. Post-Sep
	
Flexion (140 Normal)	“Full Range of Motion”	122, 122, 125	125	130	
Extension (0 Normal)		0, 0, 0	0	0	
Painful motion	Absent	Present; pain limited motion	-	Present	
Abnormal gait	No limping	-	-	Absent	
Instability 	No laxity	-	1A Lachman’s	Absent	
Other impairments 	Crepitus	-	-		
§4.71a Rating	0%	10%	10%	10%	
[[Date of surgery: 17 February 2005]]

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10%, coded 5257 (knee, other impairment of: recurrent subluxation or lateral instability), citing recurrent subluxation (instability), rated as mild (Lachman 1+).   The VA rated the right knee condition 10%, coded 5260, (limitation of flexion of leg), citing painful motion based on the post-separation C&P examination.  The MEB examination proximate to separation demonstrated the presence of ligamentous laxity or instability supporting the 10% rating (code 5257) adjudicated by the PEB.  There was no limitation of motion which attained a minimum rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  The MEB examination did not demonstrate frequent locking with effusions or any indication of dislocated meniscus or loose body (5258); however, the CI had partial meniscectomies (5259-cartilage semilunar, removal of, symptomatic), which could warrant a 10% rating.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  Based on a VA Counsel General opinion dated 1 July 1997, which permits instability (5257) to be combined with arthritis (5003), the Board discussed whether there is applicability in this case.  The use of code 5099-5003 (degenerative arthritis) with a 10% rating, which is supported by degenerative changes as well as painful motion, was considered for use along with the PEB rating.    Using code 5259 likewise would afford a 10% rating, but it cannot be combined with code 5099-5003, because it would invoke pyramiding IAW VASRD §4.14, which is to be avoided.  Therefore the Board concluded there was sufficient evidence to support a rating higher than the 10% adjudicated by the PEB.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that a disability rating of 10% for the right knee instability condition was appropriately recommended in this case, but an additional disability rating of 10% coded 5099-5003 for the right knee degenerative changes condition should also be applied.     

Left Knee Pain Condition.  The CI initially complained of “pinching pain” in the left knee in April 2005 after playing basketball, while in September 2005 the left knee started to give out during long distance ruck marching.  In the summer of 2005, the CI felt a catching sensation in his left knee when he stepped across a ditch and landed awkwardly onto his right leg.  He had minimal swelling of the left knee at that time.  On examination his left knee had some anterior laxity in November 2005.  In February 2006, the CI had medial knee pain on the left and an MRI showed a posterior horn medial meniscus tear, mild patellofemoral chondromalacia, and strain of the inferior half of the ACL without evidence of a tear. Orthopedic evaluation on 9 February 2006 revealed crepitus and tenderness of the anterior, medial, and lateral knee; pain was elicited by motion; there was laxity with solid endpoints in all planes, but the CI had global laxity of all joints; and there was a positive test for a meniscal tear.  On 20 April 2006, a PT exam documented ROM limited by pain (see chart below).  

At the MEB examination (recorded on DD Forms 2807 and 2808) dated 23 March 2006, 4 months prior to separation, the CI reported his “left knee hurts, gives out a lot, has torn cartilage in it.” The MEB physical examiner noted left knee patellar apprehension.  The MEB NARSUM dated 15 May 2006 noted the left knee ROM was 0-130 degrees.  Examination revealed mild tenderness to palpation along the medial joint line, with pain but no click with McMurray testing (to determine a meniscal tear).  There was no instability and no effusion.  The NARSUM examiner’s diagnosis was left knee pain and instability.  The commander’s statement was written prior to the left knee pain and the permanent L3 profile limitations were discussed above.

At the VA Compensation and Pension (C&P) examination dated 26 December 2006, performed 5 months after separation, the CI reported a dull ache and denied any stiffness, swelling, instability, locking, heat or redness of the left knee.  The pain became worse with prolonged standing and walking long distances.  Examination revealed the left knee ROM was 0-140 degrees without instability.

The 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)	Ortho ~5 Mos. Pre-Sep
	PT ~3 Mos. Pre-Sep
	MEB ~3 Mos. Pre-Sep
	VA C&P ~5 Mos. Post-Sep
	
Flexion (140 Normal)	Full Range of Motion	132, 132, 132	130	140	
Extension (0 Normal)		0, 0, 0	0	0	
Comment	No instability
DeLuca negative	Pain on motion	Mild tenderness on the medial joint line; pain, but no click with McMurray’s testing; no instability, laxity or effusion;	Pain at 140; no instability	
§4.71a Rating	0%	10%	0%	VA 10%	

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB assigned a 0% rating using code 5099-5003 (degenerative arthritis) for left knee pain with application of the USAPDA pain policy, while the VA assigned a 10% rating using code 5260 (leg, limitation of flexion) for left knee strain.  The Board sought a route to a higher rating and noted that the CI met the criteria for a 10% rating using code 5099-5003 based on a non- compensable rating for the limitation of motion along with painful motion.   While the CI had a tear of the medial meniscus, the STR did not indicate any locking or frequent episodes of effusion into the joint of the left knee.  Therefore, use of code 5258 is not applicable.  Furthermore, there was no route to a higher rating in the absence of ankylosis, recurrent subluxation or lateral instability, more limited flexion and extension, or tibia and fibula impairment.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a disability rating of 10% for the left knee pain condition.  

BOARD FINDINGS:  In the matter of the right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB’s current adjudication under VASRD code 5257, but also recommends adding a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a for a combined disability rating of 20%.  In the matter of the left knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5009-5003 IAW VASRD §4.71a.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Right Knee Instability	5257	10%	
Right Knee Degenerative Changes	5099-5003	10%	
Left Knee Pain	5099-5003	10%	
RATING (w/ BLF)	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140721, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record
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 XXXXXXXXXXXXXXXXXXXXX AR20160008181 (PD201403544)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the
enclosed recommendation of the Department of Defense Physical Disability Board of
Review (DoD PDBR) pertaining to the individual named in the subject line above to recharacterize the individual's separation as a permanent disability retirement with the
combined disability rating of 30% effective the date of the individual's original medical
separation for disability with severance pay.

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:

a. Providing a correction to the individual's separation document showing that
the individual was separated by reason of permanent disability retirement effective the
date of the original medical separation for disability with severance pay.

b. Providing orders showing that the individual was retired with permanent
disability effective the date of the original medical separation for disability with
severance pay.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will
account for recoupment of severance pay, and payment of permanent retired pay at
30% effective the date of the original medical separation for disability with severance
pay.

d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP)
and medical TRICARE retiree options.

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.

CF:
( ) DoD PDBR
( ) DVA