RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03665
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20090304

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E6, Paralegal Specialist, medically separated for “left knee pain,” with a disability rating of 10%.

CI CONTENTION:  The CI contends for her unfitting knee and the not unfitting neck, depression, and left shoulder 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 based on 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 - 20090110	VARD - 20090601	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Healed Tibial Plateau Fracture, Patellar Chondromalacia, Left Knee with Residual Pain	5260-5014	10%	Healed Tibial Plateau Fracture, Patellar Chondromalacia, Left Knee w/Residual Pain 	5260-5014	10%	20080822	
Cervical Spondylosis	Not Unfitting	Cervical Spondylosis	5243	10%		
Depression		Depression	9434	10%	20080924	
Left Shoulder, Labral Tear		Labral Tear, Left Shoulder	5024	0%	20080822	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Healed Tibial Plateau Fracture, Patellar Chondromalacia, Left Knee with Residual Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s left knee condition began in 1995 when she tripped and fell into a ditch while running.  She underwent 2 surgeries, one in 1996 for a partial anterior cruciate ligament (ACL) tear, and a second in 1997 for a meniscal debridement.  She did well following the surgeries until she reinjured her knee in 2002 while preparing for activation.  Despite treatment, the left knee condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for a MEB.  The MEB forwarded “left tibial plateau fracture healed with residual pain,” and “left patellar chondromalacia” for PEB adjudication.  Magnetic resonance imaging of the left knee in March 2007 was normal.  At an orthopedic clinic visit in July 2008, 8 months prior to separation, the CI reported fairly constant knee pain. Physical examination noted no effusion, synovitis, or instability; painful compression of the left patellofemoral joints; some crepitus; Drawer, Lachman’s and McMurray’s tests are normal.  

At the VA Compensation and Pension (C&P) examination in August 2008, performed 7 months before separation, the CI reported constant pain, occasional swelling, and periodic locking and buckling. Physical examination showed normal gait and tenderness to palpation.  The NARSUM, written in November 2008, 4 months prior to separation, indicated the CI reported constant pain with occasional swelling and periodic locking and buckling.  The range of motion (ROM) examinations 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 ~8 Mo. Pre-Sep
(20080715) 	VA C&P ~7 Mo. Pre-Sep
(20080822) 	NARSUM ~4 Mo. Pre-Sep
(20081104) 	
Flexion (140 Normal)	140 (145/145/140)	140 	Full	
Extension (0 Normal)	0	5 Degrees short of 0	Lacks 5 degrees	
Comment	Apprehension test for patella instability is normal	No swelling; tenderness to palpation; all tests for instability were negative	Movement performed in a stiff manner with pain	
§4.71a Rating	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.   The PEB assigned a 10% rating under an analogous code 5260-5014 (leg, limitation of flexion of and osteomalacia).  The VA also assigned a 10% rating using an analogous code 5260-5014 based on the VA C&P examination 7 months before separation, citing painful or limited motion.  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261); however, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) as adjudicated by the PEB. The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257. The 5259 code (cartilage, semilunar, removal of, symptomatic) was applicable in this case but the maximum 10% rating under that code provided no benefit to the CI.  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).  There is no VASRD §4.71a route to a rating higher than the 10% adjudicated by the PEB under any applicable code, and no grounds for additional rating based on the presence of instability.  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:  Cervical Spondylosis, Depression, and Left Shoulder Labral Tear.  The Board’s main charge is to assess the fairness of the PEB’s determination that the contended 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 conditions were profiled or implicated in the commander’s statement and was not judged to fail retention standards.   All were reviewed and considered by the Board.  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  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 contended conditions and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended cervical spondylosis, depression and left shoulder labral tear conditions, the Board unanimously or majority recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  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 20140807, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

MEMORANDUM FOR Commander

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXXX, AR20160011585 (PD201403665)

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 1 o, 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