RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01436
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20071012

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

CI CONTENTION:  Reconsider and evaluate all medical conditions.  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 – 20070806 	VARD - 20071204	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Left Knee Instability and Pain	5257	10%	Left Knee Strain Status Post ACL Reconstruction and Meniscal Repair	5259	10%	20070925	
Obstructive Sleep Apnea	Not Unfitting	Obstructive Sleep Apnea	6847	50%	20070925	
Left Ankle Pain and Instability	Not Unfitting	Left Ankle Strain	5271-5024	10%	20070925	
Left Ear Hearing Loss	Not Unfitting	Left Ear Hearing Loss	6100	0%	20070918	
Hypertension	Not Unfitting	Hypertension	7101	0%	20070925	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70% 	

ANALYSIS SUMMARY:  

Left Knee Instability and Pain.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI underwent arthroscopic surgery in March 2006 to repair a medial meniscal tear.  Despite some pain relief, he continued to report instability and left knee weakness.  Posterior cruciate ligament (PCL) reconstructive surgery was performed in September 2006 and he was issued a cane in early 2007 due to complaints of left knee instability.  

At the 19 March 2007 MEB orthopedic consultation, 7 months prior to separation, the CI reported intermittent pain over the medial aspect of the knee with mild instability, although it had improved from his pre-operative condition.  Physical examination showed left knee range of motion (ROM) from 0 to 130 degrees (normal 0-140) with only mild pain at full flexion.  There was some medial, but no lateral, joint line tenderness.  The provider documented approximately 5 mm of posterior translation on the left compared to the right, but sag sign, quadriceps active, anterior drawer, Lachman and pivot shift tests for instability were all negative.  The examiner was unable to obtain a reverse pivot shift, but no reason was given.  

During the 28 March 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI wore a left knee brace and the examiner documented tenderness, active ROM of 0-120 degrees, and left knee posterior sag.  At the 21 May 2007 MEB NARSUM, 5 months before separation, he complained of a constant dull ache with occasional sharp pain and instability.  He wore a left knee PCL brace and rated pain from 3-9/10, which was worsened by walking, going up and down stairs, and attempting to run.  Physical examination showed normal bilateral knee ROM, with mild pain during left knee terminal flexion.  There was medial joint line tenderness and approximately 5 mm of posterior translation on the left, but normal strength and no atrophy.  X-rays showed post-surgical changes indicating prior PCL reconstruction.  

At the 25 September 2007 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported left knee weakness, stiffness (after prolonged sitting or standing), swelling (after walking), giving way, lack of endurance (when walking long distances) and fatigability (after walking short distances).  Physical examination showed effusion, tenderness and an abnormal gait (left leg limping) with use of a cane because of knee and ankle pain.  There was no locking, pain, crepitus, edema, weakness, guarding of movement or subluxation.  Left knee ROM following repetitive movement was flexion of 120 degrees and extension of 0 degrees.    Meniscal signs were absent, and tests for instability, by the family practice physician, were within normal limits.  X-ray showed status post PCL repair of the left knee.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition 10%, coded 5257 (recurrent subluxation or lateral instability of the knee), citing slight instability.  The VA rated the left knee condition 10%, coded 5259 (cartilage, semilunar, removal of, symptomatic), based on the C&P evaluation citing symptomatic removal of the semilunar cartilage.  The panel noted the PEB’s adjudication and rating for left knee “instability and pain” allows for consideration of dual coding as instability coding does not include painful motion.  The CI complained of instability and giving away at all examinations and the MEB orthopedic, NARSUM, and MEB (DD Form 2808) examinations all documented laxity of the PCL, while the VA evaluation showed no laxity.  The panel majority concluded there was sufficient evidence of ligament instability to support the PEB’s 10% instability rating under code 5257.  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  The panel deliberated if there was sufficient evidence of either painful motion, or persistence of pain (or other knee symptoms) after meniscal surgery to warrant the addition of a 10% rating IAW VASRD §4.59 (painful motion) suing code 5259.  The panel considered VASRD §4.14 (avoidance of pyramiding) and that meniscal pathology could also potentially lead to some instability symptoms.  However, in this case, the CI’s posterior sag and PCL laxity (STR evaluations) were not reasonably attributable to meniscal pathology.  The panel majority adjudged that the underlying pathology of both meniscal surgery and PCL surgery with instability and use of a PCL brace, as well as clear evidence of painful motion warranted dual rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for left knee instability, coded 5257, and the addition of a disability rating of 10% for left knee pain, coded 5299-5259.  

Contended PEB Conditions:  Left Ankle Pain and Instability; Left Ear Hearing Loss; Hypertension; and Obstructive Sleep Apnea (OSA).  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the first three conditions were implicated in the commander’s statement nor judged to fail retention standards.  Only the hearing loss was profiled as H2, with duty and assignments restricted by noise levels exceeding 85 decibels or weapon firing (this did not include weapons qualification with proper ear protection)  There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  Regarding the PEB’s determination that the OSA was not unfitting, members noted the condition was profiled with the restriction that the CI required access to an electrical outlet for his continuous positive atmospheric pressure (CPAP) machine.  The MEB assessed the OSA condition as stable, and the PEB determined it was not unfitting because the CI’s symptoms were mild and controlled with CPAP, and also opined that the CI would have had access to electricity as a combat engineer.  The OSA was not implicated in the commander’s statement, and there was no performance based evidence from the record that it significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded 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 left knee instability and pain condition, the panel majority recommends a disability rating of 10%, coded 5257, and 10% coded 5299-5259, both IAW VASRD §4.71a.  The single voter for dissent recommends no change and did not elect to submit a minority opinion.  In the matter of the contended left ankle pain and instability, left ear hearing loss, hypertension, and OSA conditions, the panel recommends no change from the PEB determinations as not unfitting.  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, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Left Knee Instability	5257	10%	
Left Knee Pain	5299-5259	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170223, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

AR20180004947, 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