RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2017-01876
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070828

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Infantryman, medically separated for “right knee instability” with a disability rating of 20%.  

CI CONTENTION:  “Review all 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 - 20070816	VARD – NA	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Instability 	5257	20%	No VA Examination Proximate to Separation in Evidence	
Right Shoulder Pain	Not Unfitting		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Right Knee Instability.  According to the service treatment record and MEB narrative summary (NARSUM), the CI underwent right knee arthroscopy in February 2004 for chondromalacia.  He was performing normally without difficulty until February 2007, when he experienced an acute strain after a 3-mile run.  Right knee MRI on 15 February 2007 showed a partial tear of the medial retinaculum adjacent to its insertion on the patella.  There was a small amount of joint effusion and a contusion present.  The anterior and posterior cruciate ligaments and lateral and medial collateral ligaments appeared intact.  No meniscal tear could be identified.  

During the 29 March 2007, orthopedic examination, 5 months prior to separation, the CI reported pain and swelling of the right knee.  He could not run or carry a ruck sack.  Physical examination showed no deformity of the right knee.  There was tenderness and guarding, which impacted the ability of the examiner to provide a full examination.  The 30 March 2007 MEB examination (recorded on DD Forms 2807-1 and 2808), 5 months prior to separation, showed crepitus and tenderness in the medial right knee joint.  Patellar grind was positive.  Right knee range of motion (ROM) was flexion of 105 degrees (normal 140) and extension of 35 degrees (normal 0).  Painful motion was noted.  

At the 2 April 2007 MEB NARSUM examination, 5 months prior to separation, the CI complained of right knee pain and swelling.  Physical examination demonstrated “some grinding” with the patellar grind test.  Pain and tenderness were present along the joint line, but there was no edema.  Musculature was intact and symmetrical without atrophy.  Vascular examination was intact.  Right knee ROM was flexion of 100 degrees and extension of 35 degrees.  Lachman’s test was negative.  

The 31 July 2007 MEB orthopedic addendum, 1 month prior to separation, noted the CI’s gait was near normal with intermittent antalgic maneuvers on the right.  There was instability at the patellofemoral joint with laxity of the medial retinacular tissue around the patella.  During the physical therapy (PT) goniometric ROM study on 2 August 2007, 1 month prior to separation, the CI reported constant 4/10 right knee pain.  The right knee ROM following repetitive movement was flexion of 110 degrees and extension of -12 degrees (hyperextension), with painful motion.  The Lachman’s test was 1+, bilaterally.  There was no VA examination proximate to separation in evidence.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 20%, coded 5257 (knee, other impairment of), citing disparity in quadriceps girth and intermittent antalgic maneuvers on the right associated with the subjective experience of catching the patella at extension of -12 degrees.  Rated as moderate lateral instability.  

The panel majority noted that the MEB examination proximate to separation, showed there was no limitation of motion, which supported a rating under the diagnostic codes for limitation of flexion (5260).  The panel noted the MEB reported 35 degrees of extension, however made no comment with reference to the CI’s gait, which should have been unequivocally abnormal (severity of ratable disability equivalent to a below the knee amputation per VASRD code 5165).  This evidence contrasted sharply with the PT exam that reported -12 degrees.  The MEB and PT examinations were approximately 5 months and 1 month prior to separation, respectively.  The orthopedic examination from July 2007 reported a near normal gait.  The panel majority noted the totality of the clinical evidence did not support a ratable limitation of extension.  

The panel majority also appreciated the additional disparity among the examinations with reporting of the CI’s left knee stability or lack of.  The MEB reported the Lachman’s test was negative, which agreed with the MRI that reported the ligaments of the tibiofemoral joint were intact.  The panel also noted the PT examination from August 2007 reported a 1+ Lachman’s bilaterally, however there was no evidence that the CI’s other knee was disabled.  There was laxity of the inner tissue around the kneecap as noted by orthopedics, which interfered with the tracking stability of the kneecap.  Laxity does not necessarily equate to instability, but laxity may predispose to instability.  There was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45).  The panel majority agreed, given the symptoms and signs of painful motion and instability in this case, dual coding was appropriate.  In deliberating a rating under the 5257 code, the panel majority concluded that the evidence most accurately described “slight” instability under the 5257 code supporting a 10% rating.  Examinations and tests for knee stability did not demonstrate the presence of “moderate” or “severe” ligamentous instability or laxity.  There was no evidence of marked knee disability to support a 30% rating under the 5255 or 5262 code (femur impairment or tibia and fibula impairment).  There was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) to support a rating under these respective codes.  Accordingly, the panel majority finds no basis for a higher rating of 30% for right knee instability and concluded there is no VASRD §4.71a rating higher than the 20% adjudicated by the PEB under any applicable codes.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority concluded there was insufficient cause to recommend a change in the PEB adjudication for the right knee condition.  

Contended PEB Condition:  Right Shoulder Pain.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition was not profiled, implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the right knee condition and IAW VASRD §4.71a, the panel majority recommends no change in the PEB adjudication.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended right shoulder condition, the panel recommends no change from the PEB determination as not unfitting.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.  

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20170306, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Record 

	

Minority Opinion.  

Introduction.  The PEB found this CI unfit for his right knee and rated this disability at 20% under code 5257 (other impairment of the knee with recurrent subluxation or lateral instability).  The rating criteria under this code are subjective (slight, moderate or severe) with the PEB using its judgement to find the instability moderate in this case.  The panel determined that dual rating the knee was in the panel’s scope of review in this case.  The panel unanimously found evidence to support a dual knee rating in this case, with the right knee warranting a 10% rating, under an analogous code for traumatic arthritis (5099-5010).  The panel majority then utilized the PDBR discretion of lowering the existing 20% rating (cited above) to 10% based on the panel majority’s subjective opinion that the CI’s right knee instability was really a 10% condition (slight) vs. what the PEB determined at the time of separation (moderate condition at 20%).  In so doing, the PDBR is still able to follow its own edict of not lowering the combined rating determined by the PEB (in this case, the instability is now rated at 10% and the traumatic arthritis is also at 10%, combined they equal 20% which then equals the rating the CI received from the PEB at the time of separation).

Synopsis:  The CI’s knee injury occurred during basic training.  His knee “went down” and he developed acute pain and immediate swelling.  He was treated within the hour whereupon a positive McMurray’s sign was noted.  After MRI, he was diagnosed with a partial tear of the medial retinaculum with “internal derangement of the knee”.  He failed conservative rehabilitation and upon further evaluation by the attending orthopedic surgeon, he was found to have 2 separate areas of instability in the knee joint.

Review of pertinent facts.  There is evidence in this case which shows the CI’s right knee could have been subjectively rated at 10% for instability (Lachman’s test chiefly).  There is a preponderance evidence showing the CI’s right knee was moderately disabled under the 5257 code at the time of discharge.  For example, there was “marked” quadriceps atrophy on the right side due to nonuse vs. the non-disabled side.  The CI had an antalgic gait particularly with maneuvers favoring the right side.  There was documentation both pre and post separation of a torn medial retinaculum; and pre-separation opinion by the orthopedic surgeon (who treated the CI; and the opinion was restated by the PEB in its finding) stating that an injury to the cartilage at the patellofemoral joint – even a “minor grade” injury, would exacerbate his condition.  The instability of the right knee had already caused “marked atrophy” (as mentioned above) and subsequent loss of motion in the joint (well documented in the record).  Under VASRD 4.40 (functional loss), there is a preponderance of evidence in this case showing multiple criteria overlapping not only painful motion (first criterion for dual rating) but actual functional loss (criteria for assessing severity of instability in this case).  The CI’s ROM was severely limited (in extension) as documented by goniometric measurements taken 4 months prior to separation (equating to a 40% disability alone under VASRD 5261).  This was verified by the orthopedic surgeon a month later.  There was a single PT measurement at the time of separation showing less degradation in extension (although still ratable on its own under dual rating criteria).  A note by the same orthopedic surgeon cited above (Dr. Gonzalez 29-30 March 2007) said:  “there is guarding preventing a true apprehension test (test for instability); the joint stability in the anterior planes is difficult to assess because of guarding and hamstring tightness.”  Dr. Gonzalez goes on to say: “the soldier seems to present instability of the patellofemoral and possibly a minor form of instability of the knee joint from previous injury.”  This indicates there was (by Dr. Gonzalez’ opinion) more than one locus of instability occurring in the CI’s right knee (with the more severe condition noted above).  Other evidence which tips the balance of subjective judgement to a moderately unstable right knee includes a statement by the CI’s commanding officer (CO) where the CO specifically annotated no less than three times in his assessment, that the CI’s right knee instability was the direct cause for his not being able to perform his duties as an Infantryman, take the Army Physical Fitness Test, use upper body strength to negotiate obstacles or fire a shoulder fired weapon.  Subjective judgement could lead a reasonable person to conclude upper body strength would not be impacted in this way if one was afflicted with a “slight” disability in terms of knee instability.

Inconsistencies and errors by the panel majority.  The panel majority initially erred in stating "there was no limitation of motion, which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261)".  There clearly was  ratable limitation of extension under code 5261 (extension limited to 15° is 20%; extension limited to 10° is 10%) as the PEB showed 12 degrees extension limitation, which was a dramatic change from prior exams which showed a 35 degree limitation (equivalent to 40%).  By way of this minority opinion, this was brought to the attention of the Presiding Officer and the panel majority subsequently corrected this error.  The panel majority also erred in stating: “indicating knee instability (5257) at separation” since orthopedic and PT examinations both showed laxity and instability with laxity of medial retinacular tissue and Lachman’s 1+ respectively.  Furthermore, the panel majority relied on the single NARSUM (and PT) examination which documented no instability or laxity, but then they singled out the ROM extension limited to 35 degrees (40%) from that examination as not valid.  

Conclusion:  The CI’s right knee had an objective degree of instability, loss of motion and painful motion.  Taken in its totality (see “higher of two ratings”: VASRD 4.7), the subjective question becomes does the CI’s right knee (given its entire symptomatology and functional loss) equate to an overall 20% rating (as the PEB adjudicated based on the evidence it had and recognizing just one of two available rating criteria), or higher than this, if in fact it is fully recognized that there were dual contributing factors to knee disability in this case.  In that the PEB did not recognize the dual contributing factors, it becomes speculative to lower the existing rating of one factor (instability) based on subjective determination, while allowing for a dual rating so as to meet the PDBR edict of avoiding lowering a rating which was prior determined by the Service department PEB.

Based on the evidence in this case, and in full accounting of VASRD 4.3 - reasonable doubt (adjudicated in favor of the CI), the CI should be dual rated per below.  Anything else is speculative.

CONDITION	VASRD CODE	PERMANENT RATING	
Right Knee Instability 	5257	20%	
Traumatic Arthritis, Right Knee	5099-5010	10%	
COMBINED	30%