RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-04288
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20091105

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Cavalry Scout, medically separated for “right knee pain,” with a disability rating of 10%.  

CI CONTENTION:  “Request reconsidering of separation rating.”  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 - 20090707	VARD - 20100609	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain	5099-5003	10%	Residual Neuropathy, Status Post Right Knee Surgery	8520	10%	20100212	
			Patellofemoral Syndrome, Right Knee	5299-5261	10%	20100212	
Adjustment Disorder with Depressed Mood	Not Unfitting	PTSD	9411	Deferred*	-	
Chronic Low Back Pain	Not Unfitting	Lumbar Sprain	5237	10%	20100212	
Right Hand Pain Status Post Fracture	Not Unfitting	Right Hand Sprain	5199-5021	10%	20100212	
Narcissistic Personality Disorder	Not Unfitting	See Code 9411 Above	
Alcohol Abuse	Not Unfitting	See Code 9411 Above	
Insomnia	Not Unfitting	See Code 9411 Above	
Low Desire to Have Sex	Not Unfitting	See Code 9411 Above	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	
* VASRD dated 20101109 rated PTSD 9411 at 30%, based on examination dated 20101006.  

ANALYSIS SUMMARY:  

Right Knee Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right knee condition began in October 2005 during running.  Diagnostic imaging indicated either calcification or degeneration in the anterior cruciate ligament (ACL) and conservative treatment decreased the knee pain.  The CI re-injured his right knee in December 2006, and underwent surgery in January 2007 for a ruptured ACL (replacement) and meniscal damage.  He had increased knee pain while deployed and following redeployment diagnostic imaging documented advanced degenerative changes and pronounced tendinopathy.  The CI underwent a second knee surgery for screw removal and smoothing of cartilage.  Following surgery, further treatment did not result in improvement sufficient to allow unrestricted duty.  The MEB forwarded “right knee pain” for PEB adjudication.  

At the NARSUM examination dated June 2009, 4 months prior to separation, the CI reported constant knee pain exacerbated with bends, squats, or stairs.  Physical examination showed joint line tenderness (meniscal sign), pain and guarding when flexing the knee beyond 90 degrees (though he could get beyond 90 degrees), and positive patellar grind.  Physical therapy range of motion (ROM) testing the same day recorded flexion to 105 degrees (normal 140) and extension to 8 degrees (normal 0).  There was no laxity, instability or effusion.  Gait was normal with toe/heel walk intact bilaterally; strength and reflexes were normal.  Sensation was decreased around the anterior right knee with neurologic testing otherwise intact to light touch in both legs.  

At the VA Compensation and Pension (C&P) examination in February 2010, performed 3 months after separation, the CI reported pain, weakness and lack of endurance.  He denied locking, give way or instability.  Physical examination showed a normal gait.  ROM was flexion to 120 degrees and extension to 0 degrees with guarding and no change of ROM on repetition.  There was no instability or laxity of the knee.  Motor function and reflexes were normal and symmetric throughout the lower extremities.  The examiner stated that “Sensory function is abnormal with findings of loss of sensation of right knee from surgery.  The modality used to test sensory function was light touch…Peripheral nerve involvement was not evident during examination.”  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a 10% rating under an analogous 5099-5003 code (degenerative arthritis), citing functional loss IAW VASRD criteria.  The VA assigned a 10% rating using an analogous 5299-5261 code (leg, limitation of extension), citing functional loss IAW VASRD criteria; plus a 10% rating using the 8520 code (sciatic nerve, incomplete paralysis), citing examination findings of sensory loss; both ratings were based on the VA C&P examination 3 months after separation.  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 and VA.  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under the respective codes.  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 was therefore 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.  The Board also considered if additional disability rating was justified for peripheral nerve impairment as adjudicated by the VA.  The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting.  While the CI may have had a loss of sensation around the knee, there was no weakness and no evidence that this sensory loss interfered with military occupation-specific activities.  There was no evidence in this case that motor weakness or loss of sensation existed to any degree that could be described as functionally impairing.  The Board therefore concluded that an additional disability rating was not justified on this basis.  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 right knee condition.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that adjustment disorder with depressed mood, narcissistic personality disorder, alcohol abuse, chronic low back pain, insomnia, right hand pain status post fracture and low desire to have sex were not unfitting.  The adjustment disorder with depressed mood, narcissistic personality disorder, alcohol abuse, and low desire to have sex conditions are conditions not constituting a physical disability, IAW DoDI 1332.38 in effect at the time.  Therefore, the Board has no basis for recommending them as 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 chronic low back pain, insomnia, and right hand pain status post fracture conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  There was no performance-based evidence from the record that the back, insomnia or right hand 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 any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  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 adjustment disorder with depressed mood, narcissistic personality disorder, alcohol abuse, chronic low back pain, insomnia, right hand pain status post fracture and low desire to have sex 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.  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 20141114, 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 AR20160011500 (PD201404288)

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