RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00515
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20071023

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E4, Unit Supply Specialist, medically separated for “left knee pain and instability” with a disability rating of 10%.  

CI CONTENTION:  The CI listed chronic knee pain, chronic surgeries, and new disabilities as part of his contention.  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 Medical Evaluation Board (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 - 20070827	VARD - 20080402	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Pain and Instability	5257	10%	Chronic Valgus Laxity, Left Knee	5257	20%	20080220	
			Residuals, Arthroscopy, Left Knee	5099-5024	10%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Left Knee Pain and Instability.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI injured his left knee in June 2005 during mobilization training.  An MRI diagnosed a torn lateral meniscus.  The MRI specified that all ligaments, including the medial collateral ligament (MCL) and anterior cruciate ligament (ACL), were intact.  In July 2005 he underwent an arthroscopic meniscal debridement, was released from active duty after convalescent leave, and resumed care with the VA and a civilian orthopedist.  

The CI continued to complain of persistent pain as well as subjective instability with giving way.  Although there was no documentation of interim injury, an MRI in May 2006 demonstrated a tear of the medial meniscus.  This MRI also specified that all ligaments (including the MCL and ACL) were intact.  Orthopedic notes documented stability to stress testing in all planes except for “no instability … but … laxity” with a firm endpoint to valgus (MCL) stress.  On 11 October 2006 (12 months before separation) the CI underwent a second surgery (arthroscopic meniscectomy and chondroplasty).  By examination under anesthesia there was “no instability [but] slight laxity to valgus stressing [with] a good endpoint.”  There was intraoperative confirmation of an intact ACL.  Post-operative orthopedic entries corroborated mild varus laxity with no overall instability or laxity in other planes.  

There was ample documentation of range of motion (ROM) testing in the STR and other records.  Most commonly (including the last orthopedic entry before the NARSUM) it was described as grossly normal.  The poorest measured flexion was 130 degrees (normal 140, 45 for minimum 10%) and the poorest extension was minus 5 degrees (normal 0, minus 10 degrees for minimum 10%).  There were some entries that documented an antalgic gait (characterized as mild when elaborated), and others that noted a normal gait.  There were no entries that documented any more significant ROM limitation, persistent effusion and locking, or other VASRD-ratable findings.  

The 23 March 2007 MEB NARSUM examination, 7 months prior to separation, noted persistent pain (unelaborated) and documented “surgery was not helpful…knee feels looser…now wears a brace.”  Functional limitations were not elaborated in the NARSUM, although the commander’s performance statement specified “no lifting over 30 pounds, no running, jumping, has to walk at own pace.”  The NARSUM physical examination recorded an antalgic gait, no effusion, and findings on stress testing of a 1+ drawer (“suggestion of anterior laxity”) and “about 3 millimeters” of valgus give.  There was a missing page from the available record for the remainder of the physical findings which may have included characterization of the 3 mm endpoint and measured ROM, as well as significant functional evidence.  This notwithstanding, the examiner (an orthopedist) opined, “This normally does not cause major symptoms but in his case it may explain his instability type symptoms.  …Pain is his major symptom and I told him that I cannot adequately explain it and have no additional suggestions for treatment.”

The 20 February 2008 VA Compensation and Pension (C&P) evaluation, 4 months after separation, documented persistent pain (unelaborated) with subjective instability and giving way (specifying no dislocation or subluxation).  It noted “frequent” use of a brace and functional limitations of standing limited to one hour and walking limited to a quarter-mile.  The physical examination recorded an antalgic gait and the absence of an effusion or locking.  Measured ROM was flexion to 125 degrees and extension to minus 5 degrees, specifying painful motion but no degradation with repetition.  The examiner (a physician extender) opined that there was “moderate” instability, although stress testing for objective instability was not documented.  

Subsequent VA entries documented a normal gait and employment as a fork lift operator, but the CI re-injured his knee and underwent a third surgery (ACL reconstruction) on 17 November 2008 (13 months after separation).  There was no VA evidence of objective stress testing of instability in the interval between the C&P and the post-separation injury (“twisted” descending stairs), and a specific link between that injury and the requirement for ACL surgery could not established with certainty from the available evidence.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating was under code 5257 (knee, other impairment of) that specifies ratings for instability.  The PEB did not cite a rationale, but the applicable criterion is “slight” instability.  Code 5257 offers additional ratings of 20% for “moderate” and 30% for “severe” instability.  The VA conferred a rating of 10% under code 5099-5024 (analogous to tenosynovitis), citing “painful and/or limited motion;” and, conferred a separate rating of 20% under code 5257, referencing the C&P opinion of moderate instability.  

There was no evidence for compensable ROM limitation, persistent effusion and locking, instability, or fracture with nonunion or malunion to support a rating higher than 10% under any applicable joint code.  The panel further 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 panel was obligated in this case to consider the option of separate service ratings for instability and ROM limitation (via painful motion or code 5259 as a specified surrogate), as per the VA decision.  This is required by Board precedence, VA Training (FAST) Letters in effect (9-98, 23-97), and court rulings (Degmetich v. Brown, 1997 and others).  Members agreed that 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.  

Having so agreed, the panel turned to deliberation of the appropriate rating for instability under code 5257.  Members readily agreed that the 30% “severe” criterion was not supported, and considered whether the 20% “moderate” criterion was supported.  Although the available NARSUM evidence indicated that the objective instability was somewhat mild, members noted that it encompassed laxity in two planes (MCL and ACL).  There was additional concern that possibly probative findings were missing.  The VA examination, although not providing objective examination findings for instability, was more temporally probative to separation; and, the VA examiner specifically opined that there was “moderate” instability.  Member consensus was that the two-plane instability at separation, although mild in each plane, synergistically resulted in more significant overall joint instability.  It was possible that the unexplained ACL laxity detected at the time of the NARSUM reflected additional instability that ultimately required surgery.  The consensus conclusion was that, with due deference to reasonable doubt, the C&P assessment of moderate instability could not be discounted; and that the overall evidence was more reasonably aligned with the “moderate” than with the “slight” criterion of code 5257.  After due deliberation, considering all of the evidence and conceding VASRD §4.3 (reasonable doubt), the panel’s consensus recommendation is that the left knee condition be separately rated at 10% under code 5259 and at 20% under code 5257.  

BOARD FINDINGS:  In the matter of the left knee condition and IAW VASRD §4.71a, the panel majority recommends separate disability ratings of 10% and 20% respectively under codes 5259 and 5257.  The single voter for dissent submitted the appended minority opinion.  There are no other conditions within the panel’s scope of review for consideration.

The panel recommends the CI’s prior determination be modified as follows; and the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Surgical Residuals of Meniscectomy, Left Knee	5259	10% 	
Ligamental Instability, Left Knee	5257	20%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170213, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record

MINORITY OPINION:  The minority voter agrees that a separate rating for instability is justified in this case, but dissents with the majority opinion that the ratable instability merits a 20% rating for moderate instability; and, asserts that it is much more reasonably aligned with a 10% rating for slight instability.  

The majority assigned determinate probative value to the C&P evidence and the minority strongly disagrees.  Although there was some missing evidence from the NARSUM, the critical evidence probative to rating was present.  The NARSUM orthopedist’s overall opinion, and all facts necessary to endorse that opinion, were in evidence.  Three millimeters (mm) of laxity in the MCL does not constitute very significant instability from a clinical standpoint.  As a comparison, on the Lachman scale for ACL instability this would not meet the threshold (5 mm) for the mildest Grade I instability.  The fairly minor “suggestion” of ACL laxity noted by the NARSUM orthopedist was also of little clinical significance, and the examiner himself noted that it was incongruent with the known clinical facts.  There were multiple examinations by the civilian orthopedist, including the highly probative one under anesthesia, which corroborated the NARSUM finding for minor MCL laxity and did not indicate the presence of any ACL instability.  There were two MRIs that confirmed a normal MCL and ACL, and intraoperative visualization of an intact ACL.  The NARSUM opinion that the CI’s complaints of instability did not match the clinical severity was thus well supported.

The C&P opinion, conversely, appeared to rely almost exclusively on the subjective symptoms as reported by the CI.  The C&P examiner’s failure to conduct an examination to objectively assess the degree of instability was a significant shortcoming, and the difference in examiner expertise (NARSUM orthopedist versus C&P physician extender) was an additional factor in weighing the probative value of the expressed opinions.  Even though the C&P examiner acknowledged some of the above clinical facts running counter to a conclusion that there was moderate instability, no rationale was offered in defense of it.  The minority strongly asserts that this disconnect, coupled with the failure to corroborate reported symptoms with physical findings, greatly detracted from the credibility of the C&P examiner’s opinion regarding severity.  

In addition to over-reliance on the C&P evidence, the minority asserts that the majority recommendation rested unduly on speculation.  The majority rationale that the mild ACL laxity identified in the NARSUM, even though mitigated greatly by other evidence as elaborated above, may have significantly compounded the otherwise fairly minor MCL laxity was poorly grounded.  The majority rationale that there may have been some insidious ACL pathology that progressed to surgery was likewise poorly grounded.  The minority offers the more clinically rational opinion that any significant ACL pathology or ratable instability developed after separation, very likely from the injury preceding the ACL surgery.  The absence of any ACL involvement was confirmed by MRI and intraoperative evidence in service, and there was no report of any interim injury before separation.  Finally, the mere fact that a surgical remedy for MCL or ACL laxity was not indicated, even though it could have been performed simultaneously with either meniscectomy procedure, strongly supports the majority opinion that the instability was not severe enough to be characterized as moderate.

The Secretary is respectfully requested to consider the minority recommendation 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	
Surgical Residuals of Meniscectomy, Left Knee	5259	10% 	
Ligamental Instability, Left Knee	5257	10%	
COMBINED	20%	

AR20180004690, XXXXXXXXXXXXXXXXXX 

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (TAPD-ZB / Mr. Brower), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

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