RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01567
BRANCH OF SERVICE:  army 	SEPARATION DATE:  20040518

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Counter-Intelligence Agent, medically separated for “chronic left knee pain” with a disability rating of 10%.

CI CONTENTION:  His tinnitus condition should have been rated higher than 0% and his neck and back conditions, none of which were submitted by the Medical Evaluation Board (MEB), should have been rated.  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 MEB, but determined by the PEB to be not unfitting or non-compensable.  Any conditions outside the panel’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.  The panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel’s assessment of the PEB rating determination is based on review of medical records and all available evidence relevant to application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards for the unfitting medical condition(s) at the time of separation.  The panel 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, which operates under a different set of laws.  The panel gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of disability at the time of separation.  

RATING COMPARISON:  

SERVICE PEB - 20040322	VARD - 20040602	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Left Knee Pain	5099-5003	0%	Left Knee ACL reconstruction and Medial Meniscus Repair	5259	10%	20040504	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Chronic Left Knee Pain.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI underwent left knee surgery in July 2002 for a severed anterior cruciate ligament (ACL) and meniscal repair, with a repeat surgical washing in September 2003.  During the 26 January 2004 MEB NARSUM examination, 4 months prior to separation, the CI reported left knee pain with minimal swelling.  On physical examination (PE) there was left knee tenderness, mild swelling, and no instability.  Range of motion (ROM) of the left knee was normal in both flexion and extension.  There was no documented comment with regards to the presence of painful motion.  At the 3 February 2004 MEB ROM study, 4 months prior to separation, the CI complained of continued left knee pain.  On PE, the ROM remained normal.  The examiner noted the CI did not have ROM limitations.

At the 5 April 2004 VA Compensation and Pension (C&P) evaluation, 2 months before separation, the CI reported constant left knee pain and stiffness.  His functional impairment was described as sitting greater than 3 hours, walking greater than 20 minutes, and standing greater than one hour. His PE revealed a normal gait. Provocative instability tests were negative.  Left knee ROM revealed normal flexion and 5 degrees of extension with pain.  ROM was not limited by fatigue, weakness, lack of endurance or incoordination.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition at 0%, analogously coded as 5099-5003 (degenerative arthritis), citing slight and intermittent pain IAW the US Army Physical Disability Agency pain policy (AR 635-40).  The VA rated the left knee condition at 10%, coded 5259 (cartilage, semilunar, removal of, symptomatic), citing “symptomatic removal of the semilunar cartilage.”  Panel members agreed there was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261) and there was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) to support a rating under that code.  Additionally, there was no fracture, nonunion or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  The 5259 code was also applicable in this case, and provided an alternate route to a maximum 10% rating. 

BOARD FINDINGS:  In the matter of the left knee condition, the panel unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Left Knee Pain	5099-5003	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161019, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180004651, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,	
Enclosure