RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03681
BRANCH OF SERVICE:  Army	BOARD DATE:  20150616
SEPARATION DATE:  20081120

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-2 (Heavy Construction Equipment Operator) medically separated for right knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “right knee pain with chondromalacia of lateral tibial plateau, spurring in the lateral joint space, and post-trauma minor meniscal tear” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (myopia) for PEB adjudication.  The Informal PEB adjudicated his right knee pain as unfitting, rated 10%, citing the Table of Analogous Codes (US Army Physical Disability Agency Policy/Guidance Memorandum #12).  The remaining condition of myopia was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions”

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 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 20081105	VA* - (~5 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Chondromalacia…	5099-5003	10%	Chondrocalcinosis-Right Knee	5261	10%	20090414	
Myopia	Not Unfitting	No VA placement	
Other x 0 (Not In Scope)	Other x 1	
RATING: 10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20090527 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Right Knee Condition.  The CI sustained a right knee strain during basic training in March 2008.  Radiographs revealed boney spurring and slight disruption in the lateral meniscus.  There was no evidence of fracture or dislocation.  Orthopedic consultation did not recommend surgical intervention, but rather temporary bracing and physical therapy (PT).  Despite conservative treatment, his knee pain continued.  He was permanently profiled in October 2008 and referred to a MEB.  At the MEB narrative summary examination (6 weeks prior to separation), the CI reported continued right knee pain as well as the inability to run, crouch, or fully flex his knee.  His physical examination revealed an altered gait (ambulates in a hinged knee brace) and painful decreased range-of-motion (ROM).  Right-sided tenderness and crepitus was present about the knee, indicating painful motion.

At the VA Compensation and Pension examination (5 months after separation), the CI reported right knee pain described as “aching and sticking” occurring 4-5 times per day with a duration of 2-3 hours each.  Additionally, he endorsed right knee weakness, stiffness, give-way, lack of endurance, and fatigability.  Aggravator of pain was physical activity and relief was achieved with rest.  His self-reported functional impairments included, “difficulty climbing stairs, crawling, or transporting weight for long periods of time.”  The VA examination was normal excepting tenderness about the right knee.  The goniometric 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 ~1 Mo. Pre-Sep
(20081017) 	VA C&P ~5 Mo. Post-Sep
(20080904) 	
Flexion (140)	135	140	
Extension (0)	5	0	
Comment	painful motion	tenderness	
§4.71a Rating	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA assigned a 10% rating for the right knee condition utilizing an analogous 5003 (degenerative arthritis) code by the PEB and 5261 (limitation of leg extension) by the VA; citing painful motion and tenderness, respectively.  While there was no evidence of compensable limitation of motion, the Board agreed that the PEB’s 10% rating was supported under the 5003 coding pathway by sufficient evidence of painful motion (§4.59), or §4.40 (functional loss) which states “a part which becomes painful on use must be regarded as seriously disabled,” and clearly, the persistence of painful motion was evidenced in the PT evaluation.  Lastly, although considered, codes 5258 and 5262 were not justified at a 20% level in the presence of a non-locking knee where the boney pathology did not involve the tibia or fibula.  Absent instability or compensable limitation of motion, the Board agrees that there are no available alternative joint or analogous coding options which are applicable and or advantageous to the CI’s current 10% rating.  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’s adjudication 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 myopia 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 myopia condition was not profiled or implicated in the Commander’s statement and was not judged to fail retention standards.  The myopic condition was reviewed and considered by the Board.  There was no performance based evidence from the record that this ocular condition significantly interfered with the CI’s satisfactory duty performance.  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’s fitness determination for the myopic 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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the right knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended myopia 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, 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 20140718, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB	0 6 JUL 2015

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 XXXXXXXXXXXXXXXXXXXX, AR20160003067  (PD201403681)

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.

BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure CF:
( ) DoD PDBR ( ) OVA