RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03814
BRANCH OF SERVICE:  Army	BOARD DATE:  20150626
SEPARATION DATE:  20070921

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Motor Transport Operator) medically separated for chronic left 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 “left knee pain, chronic s/p meniscal repair” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (history of right shoulder labrum repair and history of attention deficit disorder [ADD]) for PEB adjudication.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the chronic left knee pain as unfitting, rated 10%, citing the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all my medical problems such as anxiety, depression, and physiological problems also my knee has caused foot, and hip problems.”

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 20070713	VA* - (~1 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Knee Pain	5099-5003	10%	Residuals of Meniscus Repair…	5259	10%	20070906	
History of R Shoulder…	Not Unfitting	No VA Placement	
History of ADD	Not Unfitting	No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 0 (equals SC, NSC & deferred)	
RATING:  10%	RATING:  10%	
*Derived from VA Rating Decision (VARD) dated 20071206 (most proximate to date of separation [DOS]).
ANALYSIS SUMMARY:

Chronic Left Knee Pain Condition.  The first record in evidence for the left knee is an emergency room visit on 6 January 2007 in which the CI noted that it had given out the previous day going up and down stairs.  In primary care 3 days later, he noted a 2-month history of left knee pain and that physical therapy had referred him to orthopedics.  A magnetic resonance imaging (MRI) on 21 January 2007 showed a medial meniscus tear (MMT; a tear in the cartilage cushion on the inside of the knee joint).  This was repaired surgically on 5 March 2007.  A second MRI on 25 April 2007 showed expected post-surgical changes, but could not exclude a recurrent tear.  Despite rehabilitation, he was unable to return to full duty and an MEB initiated.  The MEB examination on 11 June 2007 documented pain with all provocative maneuvers of the knee and with range-of-motion (ROM).  A limp was present.  The narrative summary was dated 15 June 2007, 3 months after surgery and 3 months prior to separation.  The CI reported continued pain, instability, and several falls secondary to locking and giving way.  In orthopedics that day, he had a stable knee without signs of meniscal irritation, but was tender to palpation.  No effusion was present.  At the VA Compensation and Pension (C&P) examination performed on 26 September 2007, 5 days after separation, the CI reported on going pain, locking, and giving way.  He used a brace and cane.  He grimaced and covered his face with his hands when his knee was touched.  The ROM was limited and is charted below.  The knee was stable and without signs of meniscal irritation.  Crepitus (an audible or palpable abnormal sensation with movement) was present.  Repetition increased his symptoms, but the limitation could not be measured secondary to increased pain.  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.

Left Knee ROM
(Degrees)	PT ~3 Mo. Pre-Sep	MEB ~3 Mo. Pre-Sep	VA C&P ~5 days Post-Sep	
Flexion (140 Normal)	90,90,90	90	110	
Extension (0 Normal)	30,30,30	30	0	
Comment	Limited by pain; 3 months post op	Stable knee; 3 months post op	Limited by pain; 6 months post op	
§4.71a Rating	40%	40%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB and VA both rated the knee at 10%, coded 5099-5003 (analogous to degenerative arthritis) and 5259 (symptomatic removal of a meniscus), respectively.  The Board first considered the two sets of ROM measurements.  The VA values are within days of separation and also more remote from surgery, 6 months vice 3 months for the MEB measurements.  Accordingly, the Board assigned a higher probative value to the VA measurements.  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 pain condition.  The Board did note that the code chosen by the VA, 5259, better described the underlying condition, but this provides no benefit to the CI.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the history of right shoulder labrum repair and history of attention deficit disorder 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 evidence shows that both conditions existed prior to service.  Neither condition was profiled, implicated in the commander’s statement, or judged to fail retention standards.  Both were reviewed and considered by the Board.  There was no performance based evidence from the record that either condition significantly interfered with 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 fitness determination either contended 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.  As discussed above, PEB reliance on the USAPDA pain policy for rating the left knee pain was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the left knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended history of right shoulder labrum repair and history of ADD conditions, the Board unanimously recommends no change from the PEB determinations 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 20140805, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

06 JUL 2016

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20160003517 (PD201403814)

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
( ) DVA