RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2017-05560
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080827

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E5, Healthcare Specialist, medically separated for “right knee pain” with a disability rating of 10%.  

CI CONTENTION:  “I was found to have back problems, PTSD, and a TBI among other 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 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 - 20080508	VARD - 20090707	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain	5099-5003	10%	Right Knee…Pain & Stiffness	5299-5261	40%	20090324	
Upper & Lower Back Pain	Not Unfitting	Thoracolumbar Spine Strain…	5242	20%		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Right Knee Pain.  According to the service treatment record and MEB narrative summary (NARSUM), the CI’s underwent right knee surgery in February 2006 consisting of an osteochondral fresh allograft for a right femoral condylar defect.  The bone allograft did not take up to 100% and in August 2007 he underwent a second surgery on his right knee consisting of a limited chondroplasty and microfracture of the medial femoral condyle and debridement of loose tissue.  X-rays dated 28 January 2008 showed areas of lucency (bone is less dense) with surrounding sclerosis (hardening) along the articular surface of the medial condyle.  

During a 20 February 2008 physical therapy examination, 6 months prior to separation, the right knee range of motion (ROM) with repetition was 0-125 degrees (normal 0-140) with motion limited by pain.  Despite physical therapy, the CI was unable to perform his duties as a health care specialist.  On 5 March 2008, he was noted to have a causal walk with his right foot pointed outward, but he could not walk on his heels or toes or do heel-to-toe because of poor effort from pain.  
The 12 March 2008 orthopedic MEB addendum reported complaints of persistent right knee pain that caused a sensation of instability, but no frank instability.  Physical examination revealed a slight antalgic gait and use of a crutch for walking, with some tenderness of the knee, but no fluid buildup in the joint (effusion).  The knee had stable ligaments, and the ROM was 0-125 degrees with pain at the end of flexion.  There was no evidence of a meniscal tear and strength with knee flexion and extension was normal.  X-rays dated 12 March 2008 showed a large osteochondral defect in the medial femoral condyle on the right side and a joint effusion in the right knee.  The examiner noted the CI’s right knee would likely continue to degenerate over time given the size of the defect.  

The 26 March 2008 MEB NARSUM examination, 5 months prior to separation, noted complaints of continued right knee pain, rated 3-5/10 with flares to 7-8/10 from stairs, hills, carrying, or increased activity.  Physical examination showed muscle wasting on the medial side of the right thigh, with right knee tenderness, but no signs of effusion or inflammation.  Neurologic examination was normal, although the CI deferred heel and toe walking due to right knee pain.   ROM with repetition was 0-125 degrees and was limited by pain.  

At the 24 March 2009 VA Compensation and Pension (C&P) examination, 7 months after separation, and 2 months after the third right knee surgery, the CI reported having undergone a third surgery on his right knee on 30 January 2009, 5 months after separation, the details of which were not in evidence in the case file.  Postoperatively, he noted ongoing right knee pain with a severity of 5-8/10 with flares to 8-9/10, which limited sports and physical activities.  Physical examination showed the CI walked with the aid of crutches, but he occasionally used a cane.  After removal of bandages from the knee, was knee was noted to be swollen and mildly hot with no drainage evidenced from the incisions.  The ROM was 30-85 degrees limited by pain that increased with ROM and continued after the examination.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee 10%, coded 5099-5003 (analogous to degenerative arthritis), citing “painful joint motion and loss of motion: right knee 0-125 degrees…”  The VA rated the right knee 40%, coded 5299-5261 (analogous to limitation of leg extension), based on the C&P examination, citing limitation of leg extension to 30 degrees.

The panel concluded that post-operative effects of the third surgery impeded the ROM measurements at the C&P examination, thereby diminishing their value in reflecting the severity of disability at the time of separation.  The NARSUM examination was most proximate to separation and recorded the same ratable evidence as other in-Service examinations, and was therefore determined by the panel majority to be most informative in adjudicating the severity of disability at the time of separation.  Therefore, the panel majority concluded there was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261). However, there was evidence of painful motion with functional loss supporting a 10% rating (based on VASRD §§4.59, 4.40 and 4.45).  There was no fracture, nonunion or malunion of the femur or tibia, although there was surgery of the medial femoral condyle twice prior to separation with a residual defect, to support consideration under the respective codes for knee impairment related to a femur or tibia impairment condition (5255, 5262).  Although the CI had an additional surgery on the knee 5 months after separation, the details were not in the case file. Accordingly, the panel concluded there was insufficient evidence prior to separation to support a 20% rating for a moderate disability of the knee.  The panel considered other VASRD knee and analogous codes, but all were less applicable and/or not advantageous for rating. There was therefore no VASRD §4.71a rating higher than the 10% adjudicated by the PEB under any applicable code.  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 pain.  

Contended PEB Conditions: Upper and Lower Back Pain.  The panel’s main charge is to assess the fairness of the PEB determination that the contended condition was not unfitting.  The contended conditions were not profiled or implicated in the commander’s statement, and did not fail retention standards.  There was no performance-based evidence from the record that the conditions 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 chronic right knee pain 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 upper and lower back pain, the panel agrees it cannot recommend it for additional disability rating.  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.  

Minority Opinion.  The minority voter recommends a 20% rating using code 5299-5255 IAW VASRD §4.71a for the following reasons.  Although there was no fracture, nonunion or malunion of the femur or tibia, there was surgery of the medial femoral condyle of the femur twice prior to separation with a residual defect, to support consideration under the analogous code 5299-5255 for knee impairment related to a femur impairment.  Therefore, while the panel majority focused on the severity of the knee at the time of separation in regard to painful motion, there was also muscle wasting on the medial side of the right thigh along with right knee tenderness.  However, the unequivocal fact is that the CI subsequently underwent additional surgery 5 months post-separation with findings at the VA examination, 2 months postoperatively, that the CI used crutches and occasionally used a cane.  The ROM was 30-85 degrees limited by pain.  While the VA assigned a 40% rating, insufficient postoperative time for healing suggests that rating would improve with time as the operative site improved.  However, proximate to separation, because of involvement of the femoral condyle, a 20% rating is more reasonable than a 10% rating IAW VASRD §4.7 (higher of two ratings).

Therefore, the minority voter recommends the ROP be modified as follows:

After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 20% for the right knee pain, coded 5299-5255.  

BOARD FINDINGS:  In the matter of the chronic right knee pain, the panel recommends a disability rating of 20%, coded 5299-5255 IAW VASRD §4.71a. In the matter of the contended upper and lower back pain, the panel agrees it cannot recommend it for additional disability rating.  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	
Chronic Right Knee Pain	5299-5255	20%	

ARXXXXXXXXXXX,

Dear XXXXXXXXXXXXXXXXXX

	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.