RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00051
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040405

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Motor Transport Operator, medically separated for “left knee injury to the anterior cruciate ligament” with a disability rating of 20%.

CI CONTENTION:  The CI asserts that he has had three additional surgeries and requires lifelong medication to enable him to function with high blood pressure and irritable bowel syndrome.  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 - 20031218	VARD - 20040419	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Injury to the Anterior Cruciate Ligament	5257	20%	Postoperative Residuals, Left Knee Instability	5257	20%	20040209	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Left Knee Condition.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the condition began in May 2001 with locking of the left knee after a strain injury.  A meniscal injury was subsequently identified and an arthroscopic meniscectomy ensued on 18 June 2003 (10 months prior to separation).  The operative note documented an intact anterior cruciate ligament (ACL) with “slight [measured at 2-3 millimeters] increased excursion... [with a] ... nice end point.”  One orthopedist documented a negative Lachman’s (test for ACL laxity or instability) after the surgery, but another one documented a positive Lachman’s (without elaborating severity or firmness of end point).  There was no other post-operative evidence relevant to instability in the STR, and no documentation of an additional injury.  Post-operative imaging (MRI) demonstrated a “small” residual meniscal tear but intact ACL and other ligaments.  There was STR evidence for the intermittent use of a knee brace, although there was a suggestion that it may not have been a rigid brace for joint stability.  The single post-operative entry probative to range of motion (ROM) was documentation of flexion to 100 degrees (normal 140, 45 for minimum 10%).  There were no STR entries documenting persistent effusion or examination signs of impingement.  Further treatment did not result in improvement sufficient to allow unrestricted duty, and the CI (reasonably) declined additional surgery and was referred for an MEB.  

At the MEB NARSUM examination dated 5 November 2003, 5 months before separation, the CI reported “multiple episodes of the left knee giving way” which impeded running, squatting, lifting, heavy carrying, negotiating stairs, and mounting/dismounting vehicles.  The physical examination recorded mild (1 centimeter disparity) quadriceps atrophy, the absence of effusion, no impingement, and stability of the collateral ligaments, but “a positive Lachman’s 1 to 2+” without characterizing the end point.  The ROM measurements were flexion to 130 degrees and extension 0 (normal).

At the VA Compensation and Pension (C&P) examination on 9 February 2004, 2 months before separation, the CI reported “grinding when moving his left knee” and “some pain with” negotiating stairs, prolonged standing, knee bending, and promptly with running, but “unlimited walking abilities.”  There were no documented complaints of subjective instability or locking.  The VA physical examination recorded a normal gait (no mention of brace) and joint findings which mirrored the language from the NARSUM, including “a positive Lachman’s 1 to 2+.”  The ROM measurements were flexion to 115 degrees and normal extension, specifying painful motion.

The Board directed attention to its rating recommendation based on the above evidence.  Both the PEB and VA rated the condition 20% coded 5257 (knee, other impairment of).  This code provides a 10% rating for “slight” instability followed by 20% for “moderate” and 30% for “severe” instability.  Members agreed that “severe” was not a reasonable characterization of the instability in evidence.  There was no evidence (frequent effusions, locking, or non-union/malunion) for a rating greater than 10% under any alternative joint code; and, it was noted that code 5259 (cartilage, semilunar, removal of, symptomatic) was applicable to the case and provides for a 10% rating independent of any other criterion.  The Board was compelled in this case to consider the option of separate ratings for instability and ROM limitation (via painful motion, or code 5259 equating to painful motion).  This is required by VA Training (FAST) Letters in effect (9-98, 23-97), and court rulings (Degmetich v. Brown, 1997 and others).  Members agreed that under this guidance separate ratings were justified, since either painful motion or application of code 5259 were supported to justify a 10% rating independently of a rating for instability under 5257.  Members agreed that a 10% rating under 5259 was the best choice for rating independently of instability; and, deliberated whether a 10% rating for slight instability could be fairly recommended in lieu of the 20% rating for moderate instability as conferred by the PEB and VA.  It was considered that the intraoperative examination was the most accurate assessment of ACL instability and was consistent with a 1 to 2+ Lachman grading; but, it is the functional impairment that is rated under 5257.  The NARSUM indicated that instability with frequent “giving way” was the dominant disability, and there was evidence for at least the occasional requirement for a brace.  Both the PEB and VA judged that this constituted moderate instability, and member consensus was that reasonable doubt favored concession of the 20% rating under 5257.  After due deliberation, and in consideration of all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board’s consensus recommendation is that the left knee condition be separately rated at 10% under code 5259 and 20% under code 5257.

BOARD FINDINGS:  In the matter of the left knee condition and IAW VASRD §4.71a, the Board by a majority vote recommends separate disability ratings of 10% under code 5259 and 20% under code 5257, for a combined disability rating of 30%.  The single voter for dissent recommended modification to separate ratings of 10% each (same codes), and did not elect to submit a minority opinion.  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	PERMANENT RATING	
Left Knee Injury to the Anterior Cruciate Ligament	5257	20%	
Left Knee Meniscal Injury with Surgical Residuals	5259	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150118, 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 XXXXXXXXXXXXXXXXXX, AR20160013334 (PD201500051)

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 re-characterize 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.

BY ORDER OF THE SECRETARY OF THE ARMY:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA