RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX 	CASE:  PD-2017-04376
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Food Service Operator, medically separated for “chronic right knee pain and residual instability” with a disability rating of 20%.   

CI CONTENTION:  “Because of improper treatment and examination.”  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 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 – 20050824	VARD - 20060406	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain and Residual Instability	5257	20%	Right Knee with Degenerative Joint Disease [Surgical Residuals]	5010-5260	10%	20060216	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Right Knee Pain and Residual Instability.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI sustained right knee injuries that required surgical intervention (anterior cruciate ligament [ACL] reconstruction and meniscal repair) in 2002 (3 years before separation).  There was STR documentation of restoration of normal range of motion (ROM) and a normal gait after surgery.  He remained symptomatic and there was an orthopedic note that recorded “slight” instability.  There was no STR documentation of persistent effusion, impingement (objective locking), or other VASRD-ratable findings.  

The 16 May 2004 MEB DD Form 2808 physical examination, 6 months prior to separation, documented grossly normal ROM with no effusion and no note of instability or impingement.  There was post-operative MRI confirmation that the ACL graft, all other ligaments, and menisci were intact.  

The 26 July 2005 MEB NARSUM examination, 3 months prior to separation, documented persistent right knee pain rated “slight and frequent” with subjective instability on uneven terrain (use of a brace not noted) that interfered with prolonged standing, load-bearing, running, and jumping.  The physical examination recorded a normal gait, tenderness, a mild effusion and no impingement.  The examiner recorded mild-to-moderate ACL instability (Lachman IIA, good endpoint).  Measured ROM was flexion to 140 degrees (normal) and extension 0 degrees (normal), without note of painful motion.

At the 16 February 2006 VA Compensation and Pension (C&P) examination, 4 months after separation, the CI reported right knee pain rated 3/10 with no subjective instability.  Functional limitations were noted only as “no daily activity limitations.”   The physical examination recorded a normal gait, no tenderness, no note of effusion or impingement, no instability, and “normal” ROM with no note of painful motion.  

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) with provisions for rating instability, referencing DoDI 1332.39 (E2.A1.1.15.2.2).  The latter, however, provides the same rating scale as VASRD §4.71a for code 5257; 10% for “slight,” 20% for “moderate,” and 30% for “severe” instability.  The VA rated the right knee condition 10%, analogously coded 5010-5260 (arthritis due to trauma rated for limitation of flexion) based on the C&P examination and conceding painful motion (although not specified by the examiner).

The panel considered multiple VASRD knee and analogous codes, but all were less applicable and/or not advantageous for rating.  There was no VASRD §4.71a criterion in evidence to support a rating higher than the 20% conferred by the PEB for instability.  The panel considered the option of dual rating for instability and limited motion (IAW VA Training [FAST] Letter 04-22 of 1 October 2004).  Members agreed, however, that it was not justified in this case.  There was no limitation of motion, and speculation was required to concede painful motion.  Furthermore, in order for dual rating to be advantageous, moderate instability would have to be assigned.  There was an equivocal basis for assigning moderate instability based on the NARSUM evidence (firm end point, no brace, difficulty confined to uneven terrain).  The lack of instability at the time of the C&P examination (similar temporal proximity to separation as the NARSUM) indicated a likelihood of even less ratable instability by the time of separation.  There was also compelling evidence for concluding that instability was the only unfitting component eligible for service rating.  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the right knee condition.  

BOARD FINDINGS.  In the matter of the right knee condition and IAW VASRD §4.71a, the panel recommends no change in the PEB adjudication.  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:

AR20200000188

Dear XXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	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.