RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201521 SEPARATION DATE: 20031113 BOARD DATE: 20130117 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve (Individual Ready Reserve) CW4 (31A/Military Police), medically separated for chronic pain, left knee, status post (s/p) lateral tibial fracture. The CI injured his knee playing football during physical training while in an active duty status in May of 2000. He underwent arthroscopic surgery and continued with physical therapy (PT) and rehabilitative treatment but continued to experience pain and discomfort. His chronic left knee pain condition did not improve adequately and he was unable to meet the physical requirements of his Warrant Officer Specialty or satisfy physical fitness standards. He was issued a permanent L3H3 profile and referred for a Medical Evaluation Board. The MEB forwarded no other conditions for Physical Evaluation Board (PEB) adjudication. The initial PEB adjudicated the CI “Fit by Presumption.” The CI submitted a rebuttal to the PEB and another PEB 2 weeks later changed the rating to an “unfitting” status for his chronic left knee pain. A final PEB revised for an administrative correction dated 18 March 2003 adjudicated the chronic pain, left knee condition as unfitting, rated 0% with application of the US Army Physical Disability Agency (USPDA) pain policy. The CI made no additional appeals and was separate with a 0% disability rating. CI CONTENTION: “Injury to left knee, ILOD (sic) and subsequent knee replacement surgery. Hearing Loss (tinnitus) Left Ear. Knee is not fully restored. Still cannot stand or sit for long periods of time. Continue to have painful “locking” cramps with certain knee movements. The Tinnitus has (is) become worse in the Left ear and is now in the right ear as well. Overall Hearing is now limited, especially certain words, number or letter sounds. I was given a “0” rating for hearing loss, and only 10% for Tinnitus of the left ear.” Please review the enclosed Audiology examination results dated 8 August 2012.” 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 rated condition chronic pain, left knee is the only condition that meets the criteria prescribed in DoDI 6040.44 for Board purview; and, is addressed below. The other requested conditions, hearing loss and tinnitus, 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 service Board for Correction of Military Records. RATING COMPARISON: Service Admin PEB – Dated 20030318 VA (3 Mos. Post-Separation) – All Effective Date 20030716 Condition Code Rating Condition Code Rating Exam Chronic Pain, Left Knee S/P Lateral Tibial Plateau Fracture 5099-5003 0% Posttraumatic Arthritis S/P Left Knee Replacement 5055 30% 20040205 .No Additional MEB/PEB Entries. Tinnitus 6260 10% 20040203 0% X 1 / Not Service-Connected x 2 Combined: 0% Combined: 40% ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the member's medical conditions, compensation can only be offered for those medical conditions that cut short a member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans Affairs (DVA) but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of separation. Chronic Pain, Left Knee Status Post Lateral Tibial Plateau Fracture 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. Left Knee ROM (Degrees) PT ~17 Mo. Pre-Sep (20020618) MEB NARSUM ~10 Mo. Pre-Sep (20030107) VA C&P ~3 Mo. Post-Sep (20040205) Flexion (140 Normal) 125 125 120 Extension (0 Normal) 0 0 5 Comment Right knee same. Normal gait. No atrophy. No instability. S/p partial knee replacement 14Jan04, 2 mos post sep. §4.71a Rating 10% 10% 30% The CI sustained a fracture of the lateral tibial plateau at the left knee while playing football in May 2000. He subsequently underwent treatment including arthroscopic surgery in September 2000 with arthroscopic debridement of the medial and lateral menisci (radial tear of lateral meniscus, medial meniscus post tear). Magnetic resonance imaging (MRI) of the left knee on 17 October 2001, noted the presence of the residuals of the fracture of the left lateral tibial plateau with fracture lines and a depressed area 1.5cm in size depressed by 0.3 to 0.4cm. An orthopedic evaluation 1 November 2001 noted left lateral knee compartment osteoarthritis as a result of the injury and discussed treatment options including surgery (distal femoral osteotomy to unload the lateral compartment; or knee replacement) and a brace (varus unloading brace to shift the weight bearing from the lateral to the medial compartment of the knee joint). A 20 March 2002 orthopedics appointment noted the CI was doing better with the brace. The CI was unable to run, jump or perform vigorous military activities but the brace allowed enough partial relief for normal daily activities. On examination, ROM was normal (extension, 0 degrees, flexion 135 degrees). The orthopedic surgeon initiated an MEB for the persisting knee pain due to isolated lateral compartment osteoarthrosis (secondary to the tibial plateau fracture). A PT ROM examination 18 June 2002 demonstrated full extension in both knees and symmetric flexion in both knees (left 125, right 120 degrees). At the MEB narrative summary (NARSUM) examination, performed on 7 January 2003 (10 months prior to separation), the CI reported knee pain and stiffness with prolonged sitting or standing, lifting heavy objects, and going up and down stairs. On examination, the CI was wearing a knee brace and exhibited a normal gait and strength. There was no muscle atrophy, joint line tenderness or instability. There was some patellar crepitus. The knee flexed to 125 degrees and extended to 0 degrees. At the VA Compensation and Pension (C&P) examination, 5 February 2004 (3 months after separation), the CI reported he had had implants placed in his left knee for a unilateral knee replacement on 15 January 2004, 2 months after separation. He complained of constant knee pain, however he states his condition did not cause incapacitation or any time lost from work because he was retired. Physical exam evidenced no posture or gait abnormalities. No abnormal weight bearing seen on feet examination. ROM of the left knee was limited by pain (flexion 120 degrees, with 5 degrees loss of extension). The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 0% with application of the USAPDA pain policy (coded 5099-5003). By rating decision 15 March 2004, the VA rated the condition 30% based on the partial knee replacement surgery after separation (coded 5055). The Board noted that the CI underwent partial knee replacement surgery after separation, however ratings may not be based on events following separation. There was no limitation of motion or instability to warrant a minimum rating under the respective VASRD diagnostic codes (5260, 5261, and 5257). The Board agreed a 10% rating 5003 was supported with application of, §4.59 (painful motion) or §4.40 (functional impairment) as well as under 5259, symptomatic s/p removal of semilunar cartilage. There was not a dislocated meniscus with locking to support a minimum rating under code 5258 (dislocated meniscus). The Board noted the underlying cause for the left knee impairment was a fracture of the tibia, and considered rating using the VASRD diagnostic code 5262, impairment of tibia with knee disability. There was not a non-union with loose motion to warrant consideration of the 40% rating. All members agreed the knee disability was more than slight and considered whether the left knee disability was moderate or marked. At the time of the MEB NARSUM, the CI had pain and stiffness with going up and down the stairs, heavy lifting, and prolonged standing or sitting. Gait was normal, and muscle strength was normal without atrophy. All members agreed that the disability was best described as moderate and concludes the evidence supports a 20% rating under code 5262. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the chronic left knee pain condition (5299- 5262). 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 the USAPDA pain policy for rating the knee condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic pain, left knee condition, the Board unanimously recommends a disability rating of 20% coded 5299-5262 IAW VASRD §4.71a. 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 Chronic Pain, Left Knee 5299-5262 20% COMBINED 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120810, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record XXXXXXXXXXXXXXXXXXXXXX, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / XXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20130003940 (PD201201521) 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 20% 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 XXXXXXXXXXXXXXXXXXX Deputy Assistant Secretary (Army Review Boards)