RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX	CASE:  PD-2017-03497
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20061222

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Infantryman, medically separated for “injury to left knee” with a disability rating of 0%.  

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 - 20061130	VARD - 20070425	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Injury to Left Knee	5099-5003	0%	Internal Derangement Left Knee	5299-5261	10%	STR	
Posttraumatic Stress Disorder (PTSD)	Not Unfitting	PTSD	9411	10%	STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:  

Injury to Left Knee.  According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI sustained a twisting injury to his left leg in February 2006 after a sledding accident.  An MRI showed a sprain of the left medial collateral ligament (MCL) and rupture of the meniscal capsular attachment.  The CI deployed to Afghanistan the same month and was eventually evacuated back to his home station due to increased knee pain.  On 26 April 2006, he underwent left knee arthroscopic surgery that revealed healing of the meniscal capsular separation and a Grade 2 MCL sprain.  A follow-up MRI in August 2006 showed healing within the area of the MCL sprain, as well as complete resolution of the meniscal capsular separation.  
During the 6 September 2006 MEB NARSUM examination, 3 months prior to separation, the CI reported left knee pain when walking over uneven terrain or carrying weight, and after working out or walking long distances (which caused limping).  He also reported pain with squatting or bending too far, and was unable to perform his military duties.  Physical examination showed a normal gait and well-healed surgical incisions.  There was tenderness along the medial femoral epicondyle as well as over the inferior pole of the patella, but none along the lateral portion of the knee or along the medial joint line.   The examiner noted 1+ laxity of the MCL, but negative Lachman’s, anterior/posterior drawer tests and negative varus testing, and normal neurovascular findings.  Left knee range of motion (ROM) was from 0-110 degrees (normal 0-140).  Primary care appointments on 14 and 26 September and 13 December 2006 indicated continued left knee pain with weakness and giving way.  

The CI did not report for his scheduled VA Compensation and Pension (C&P) examination, but at the time of the first VA primary care appointment on 29 January 2007, 1 month after separation, he reported continued soreness along the medial aspect of the patella, usually after walking longer distances or carrying something heavy.  He stated that his left knee hurt every couple of days after increased activity, and that icing for 15 minutes relived the pain for a few hours.  There was no physical examination at the visit as the CI requested an appointment with orthopedics (no record of this examination in evidence).  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition 0%, analogously coded 5099-5003 (degenerative arthritis), citing the US Army Physical Disability Agency pain policy.  The VA rated the left knee condition 10%, analogously coded 5299-5261 (limitation of leg extension), citing limitation of leg extension to 10 degrees, based on the STR and that the CI did not report for a scheduled C&P examination.  Panel members agreed there was no limitation of flexion or extension in evidence that supported a rating under codes 5260 or 5261.  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).  Alternative analogous meniscal coding (5259) would be no higher than 10% as there was no history or evidence of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) to support a higher rating under that that code.  

The PEB disability description noted “There was a 1+ laxity of the medial collateral ligament (not independently ratable).” Of note, historically DoD did not dual rate the knee, but use of VASRD-only rating guidance does permit dual rating for painful motion and for instability.  Following deliberation, the panel majority adjudged that the preponderance of the evidence revealed the left knee instability was not separately unfitting.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel majority recommends a disability rating of 10% for the left knee condition.  

Contended PEB Condition:  PTSD.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The PTSD was profiled as an S2 and the commander’s statement did not implicate any mental health symptoms or conditions, and PTSD did not fail retention standards.  There was no performance-based evidence from the record that the PTSD 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 the contended condition, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the left knee condition, the panel majority recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  The single voter for dissent submitted the appended minority opinion.  In the matter of the contended PTSD, 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.  

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

CONDITION	VASRD CODE	PERMANENT RATING	
Injury to Left Knee	5099-5003	10%	

MINORITY OPINION:  In addition to the 10% left knee rating for painful motion, the minority voter strongly contends that the CI’s left knee instability was reasonably unfitting, and therefore additionally ratable at 10%.  

The PEB did not follow VASRD-only rules, in that knee instability is separately ratable from painful motion or post-surgical meniscal symptoms (absent Army-specific rating policy in effect at the time).  To consider an unbundled condition “not unfitting” there needs to be a preponderance of the evidence, otherwise it is considered reasonably unfitting.  

The profile, NARSUM, and commander’s statement implicated the MCL sprain and surgery to repair the meniscal capsular separation (which does not repair the sprained MCL).  The MEB history indicated use of a brace and three of the four STR entries following surgery endorsed complaints of left knee weakness and giving way.  The STR entries were also closer to the date of separation than the NARSUM.  There was no counter-evidence indicating the objective instability did not interfere with duty performance, and absence of statements affirming duty impairment do not constitute a preponderance of evidence given the subjective complaints and objective findings of instability.  Therefore, the record supported that the left knee instability condition was reasonable justified as unfitting when unbundled from the PEB’s pain policy-based 5099-5003 rating.  

With regard to rating the unfitting left knee instability, the CI had continued complaints of left knee weakness and giving way, and objective findings (NARSUM and PEB) documented slight (1+) MCL laxity, supporting a 10% (slight) rating under code 5257 (knee, other impairment of: recurrent subluxation or lateral instability).  

In the matter of the left knee condition, the minority voter recommends a disability rating of 10%, coded 5099-5003 and 10%, coded 5299-5257; both IAW VASRD §4.71a.  

CONDITION	VASRD CODE	PERMANENT RATING	
Injury to Left Knee:  S/P Surgery Medial Collateral Ligament Sprain and Meniscal Separation (Pain and Instability)	5099-5003	10%	
	5299-5257	10%	
COMBINED	20%	

AR20190010672, XXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXX

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.