RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1200847 SEPARATION DATE: 20020523 BOARD DATE: 20130205 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (75B/Personnel Admin Specialist), medically separated for right knee pain status post (s/p) arthroscopic synovectomy. In November 1999 while in training the CI fell and twisted his right knee. Right knee condition could not be adequately rehabilitated with treatment to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded right knee pain s/p arthroscopic anteromedial synovectomy, and patellofemoral arthrosis as medically unacceptable IAW AR 40-501. The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The PEB combined the two conditions and adjudicated chronic right knee pain as unfitting, rated 0%, with application of the DoDI 1332.39, and the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 0% disability rating. CI CONTENTION: “I have lost most of the flexibility in my rt knee. My left knee is getting worse due to overcompensation and the VA took a MRI of my back and said my lowest disk is half its size and is pinching nerves.” SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 Enclosure 3, paragraph 5.e.(2) is limited to those conditions which were determined by the PEB to be specifically unfitting for continued military service; or, when requested by the CI, those condition(s) “identified but not determined to be unfitting by the PEB.” The ratings for unfitting conditions will be reviewed in all cases. The other requested conditions [left knee and back] are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20020403 VA (3.5 Mos. Pre-Separation) – All Effective Date 20020524 Condition Code Rating Condition Code Rating Exam R Knee pain s/p arthroscopic synovectomy 5299-5003 0% R knee residuals, arthroscopy w/debridement of synovitis 5020-5260 10% 20020204 .No Additional MEB/PEB Entries. 0% X0 / Not Service-Connected x 11 Combined: 0% Combined: 10% *VA rating increased to 20% effective 20031128 ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him. It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation. This role and authority is granted by Congress to the Department of Veterans Affairs (DVA). The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12- month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6040.44, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence, therefore, is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation. Right Knee Condition. There were three goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below. Right Knee ROM in Degrees PT Note ~7 Mo. Pre-Sep (20011017) Ortho ~6 Mo. Pre-Sep (20011107) VA C&P ~3.5 Mo. Pre-Sep (20020204) Flexion (140 Normal) 135 105 120 Extension (0) 0 0 0 Comment Gait wnl; squat 30 degrees Slight effusion; neg Lachman; pain w/extension; pain with patellofemoral compression No effusion; right knee tender to pressure; §4.71a Rating - - - The MEB examiner recorded the CI’s history of chronic right knee pain associated with a reported fall he sustained in November 1999 while on active duty. The injury was initially treated as a strain with physical therapy. Two years later a magnetic resonance imaging (MRI) was obtained suggesting a ligamentus injury. At arthroscopic surgery, August 2001, 9 months prior to separation, a normal joint without instability, ligamentus or meniscal injury with minor synovitis (irritation of the lining) was documented. On follow up MRI obtained December 2002 the knee joint was normal. Subsequently, the CI developed a limp with increased pain with ambulation and noted his knee to randomly ‘give out.’ At the MEB/narrative summary (NARSUM) evaluation 21 March 2002, 2 months prior to separation, the results of two prior evaluations are referenced: an orthopedic evaluation, 7 November 2001, 6 months prior to separation, and the VA Compensation and Pension (C&P) evaluation, 4 February 2002, 3 months prior to separation. Findings on physical examination for both exams are noted above. At the MEB evaluation, the CI reported his knee to ‘give out’ without warning. At the C&P evaluation, the CI reported his knee to ‘lock’ 10 to 15 times and to ‘go out’ 20 to 25 times a month. He noted limping 75% of the time but was able to work a regular job with ‘long hours.’ The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 0% analogous to degenerative arthritis code of 5299-5003 citing no significant loss of ROM. The VA rated the condition at 10% code 5020-5260, based on painful limitation of flexion/motion. A higher rating of 20% under this code requires limitation of flexion of 35 degrees not supported by the record in evidence. The Board agreed the evidence supported the application of VASRD §4.59 for painful motion at 10%. On review of the records the Board noted that even though the flexion was reduced it was not compensable under codes 5260 and 5261. The Board considered the 5258 code; however, all proximate examinations documented stability of the knee and there was no objective evidence of frequent episodes of locking and effusions to support the use of this code. There is no VASRD sanctioned pathway to a rating higher than the minimal compensable rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right knee pain condition. BOARD FINDINGS: IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication. As discussed above, PEB reliance on DoDI 1332.39 for rating knee pain was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the right knee pain condition, the Board by a vote of 2:1 recommends a disability rating of 10%, coded 5299-5003 IAW VASRD §4.71a. The single voter for dissent, who recommended no recharacterization, did not submit a minority opinion. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: UNFITTING CONDITION VASRD CODE RATING Right Knee Pain 5299-5003 10% RATING 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120621, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxx, AR20130006064 (PD201200847) 1. I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual. Under the authority of Title 10, United States Code, section 1554a, I accept the Board’s recommendation to modify the individual’s disability rating to 10% without recharacterization of the individual’s separation. This decision is final. 2. I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days from the date of this memorandum. 3. I request that a copy of the corrections and any related correspondence be provided to the individual concerned, counsel (if any), any Members of Congress who have shown interest, and to the Army Review Boards Agency with a copy of this memorandum without enclosures. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)