RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01813
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20060302

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Network Systems Operator/Maintainer, medically separated for “right knee pain” with a disability of 0%.  

CI CONTENTION:  “Left knee, right knee, lower back.”  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 - 20060123	VARD - 20070531	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain … 	5257	0%	Right Knee Severe Instability	5257	30%	20070509	
			Right Knee ACL Tear with Decreased and Painful Range of Motion 	5260	10%	20070509	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Right Knee Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s right knee condition began in January 2005.  He sustained an anterior cruciate ligament (ACL) rupture while playing basketball during physical training.  Diagnostic imaging (MRI) revealed rupture of the ACL with appearance of meniscal-capsular separation at the posterior horn of the lateral meniscus.  X-rays were normal.  Surgical options were discussed with the CI, but he reasonably declined operative intervention.  

The 30 September 2005 MEB NARSUM, 5 months prior to separation, noted the CI’s orthopedic condition significantly affected his ability to perform the duties required of his MOS and the Army in general in both the garrison and combat environments.  The CI reported continued pain and instability despite treatment and physical therapy.  Physical examination showed no deformity, effusion or warmth.  He had mild tenderness over the medial and lateral joint lines.  There was full range of motion (ROM) with flexion from 0 to 140 degrees (normal 0-140).  Laxity was noted with anterior drawer and there was a 2B Lachman examination (no firm end point with 6-10 mm extra movement) with a positive pivot shift (instability).  He had negative McMurray’s, posterior drawer, dial-in, and varus/valgus tests.  There was no patellar grind.  The diagnosis was “right knee ACL disruption and instability.”  

The 3 November 2005 NARSUM addendum documented painful right knee ROM of 0-110 degrees following repetition.  The 3 January 2006 addendum medical opinion (cited by the PEB) was in response to questions by the PEB referring to AR 635-40 and AR 600-200 related to compliance, refusal of surgery, and likelihood of instability following recommended surgery.  The specialist indicated that refusal of surgery was reasonable.  He also indicated that “surgery would most likely result in a stable knee joint, and more often than not returns the soldier to duty.  ... Many times this works.  Other times a surgery is performed and the soldier never returns to duty.  In extreme circumstances, a complication occurs and the soldier ends up worse than before his surgery was performed.”  

At the 9 May 2007 VA Compensation and Pension (C&P) examination, 15 months after separation, the CI reported localized 6/10 right knee pain.  The pain was elicited by physical activity and relieved by rest.  He reported pain, weakness, stiffness, swelling, giving way, and lack of endurance of the right knee.  He stated that his right knee pain did not cause incapacitation.  Physical examination showed the CI had a normal gait and did not require an assistive device for ambulation.  The examiner noted that the right knee showed signs of abnormal movements.  The right knee ROM was 135 degrees flexion with pain at 135 degrees (140 normal) and 0 degrees extension (0 normal).  The joint function was additionally limited by pain with repetition.  It was not additionally limited by fatigue, weakness, lack of endurance, or incoordination.  The ACL stability test of the right knee was abnormal with severe instability.  The medial and collateral ligaments stability tests, medial and lateral meniscus tests and X-rays of the right knee were all within normal limits.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 0%, coded 5257 (knee, other impairment of: recurrent subluxation or lateral instability), citing that the CI had “a 2B Lachman’s examination…However, the Soldier has reasonably refused surgery that, in the addendum medical opinion, would result in a stable knee and the Soldier returning to full duty” (with likely application of AR 635-40 and/or AR 600-200).  The VA rated the right knee condition 30%, coded 5257, based on the C&P examination, , citing “severe instability,” and additionally rated the right knee 10%, coded 5260 (leg, limitation of flexion of), citing that the CI’s joint function was “additionally limited after repetitive use by pain.”  

The panel considered that the record clearly indicated that the CI declining surgery was reasonable.  There is no VASRD-compliant rating deduction for declining surgery, or based on likely outcomes from surgical procedures.  The panel adjudged that the PEB described the condition as a painful knee and coded the right knee for instability, noting a 2B Lachman’s (instability); therefore, coding for both instability and painful motion was considered.  

Rating under coder 5257 is for slight (10%), moderate (20%), or severe (30%) instability.  The NARSUM examination documented a 2B Lachman, positive pivot shift, and laxity with the anterior drawer, which can be interpreted between severe and moderate instability, while the post-separation VA examiner clearly indicated severe instability.  
The panel deliberated the application of dual ratings for the knee, based on separate ratings for instability and painful motion.  There was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45); however, that disability was best captured in combination with the CI’s instability rating.  Members agreed that the entire knee disability was best captured by single coding capturing all right knee disability under 5260-5257 (knee, other impairment) as severe at 30%.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 30% for the right knee condition, coded 5260-5257.  

BOARD FINDINGS:  In the matter of the right knee condition, the panel recommends a disability rating of 30%, coded 5260-5257 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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective the date of medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Knee Pain …	5260-5257	30%	

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 

AR20180005847, 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, (AHRC-DO), XXXXXXXXXXXXXXXXXX.

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

Sincerely,					      
Enclosure