RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201712 SEPARATION DATE: 20020830 BOARD DATE: 20130215 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, SPC/E-4, (88M/Truck Driver), medically separated for chronic right knee pain. The CI injured his right knee playing basketball in 1997. He had a right anterior cruciate ligament (ACL) tear and underwent arthroscopic repair. He continued to have problems and he underwent a second procedure to repair both medial and lateral meniscus tears. In August 2000 the CI began to have intermittent wheezing and chest tightness with symptoms increasing and he was diagnosed with mild persistent asthma and started on medications in September 2001. Despite surgery and lengthy therapy, the right knee and asthma did not improve adequately and the CI was unable to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB). The Informal Physical Evaluation Board (IPEB) adjudicated the right knee condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining condition, asthma, was determined to be not unfitting and therefore not rated. The CI requested a Formal PEB (FPEB), but subsequently agreed with the IPEB findings and withdrew his request and was medically separated with a 10% disability rating. An administrative correction was done to change the VASRD code used by the IPEB. CI CONTENTION: The CI elaborated no specific contention in his application. He simply listed Diabetes, Asthma, Bronchial, Knee condition. 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 asthma condition requested for consideration and the unfitting right knee condition meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below. The other requested condition, diabetes, is 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 PDA Admin Corr – Dated 20020521 VA (2 Mos. Pre-Separation) – All Effective Date 20020831 Condition Code Rating Condition Code Rating Exam Right Knee Pain w/occasional symptomatic instability 5010 10% Residuals R knee ACL tear w/meniscectomy 5259 10% 20020617 Asthma Not Unfitting Bronchial Asthma 6602 30% 20020617 .No Additional MEB/PEB Entries. Diabetes Mellitus 7913 20% 20020617 0% X 0 / Not Service-Connected x 0 Combined: 10% Combined: 50% ANALYSIS SUMMARY: The Board acknowledges the CI’s contention that suggests ratings should have been conferred for other conditions documented at the time of separation. The Board wishes to clarify that it is subject to the same laws for disability entitlements as those under which the Disability Evaluation System (DES) operates. 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. However, the Department of Veterans Affairs operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically reevaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary over time. Right Knee Condition. The MEB examiner recorded the CI’s history of chronic right knee pain associated with a basketball injury in 1997. The injury was initially treated as a strain with physical therapy with unsustained improvement. He was seen by orthopedics and was found to have a right ACL tear which was repaired via arthroscopic surgery. Magnetic resonance imaging (MRI) obtained in February 2000 documented intact ligaments and a small tear in the lateral meniscus. In September 2000 the CI underwent arthroscopic surgery for the right knee with repair of both medial and lateral meniscus tears. On 14 January 2002, approximately 7 months prior to separation; the CI underwent an extensive orthopedic evaluation documenting a stable knee with normal range-of-motion (ROM) and recommendation for no further surgery. The commander’s statement indicated the CI was not able to conduct the basic requirements of soldiering due to profile restrictions of no rucksack, marching greater than a mile and expressed a concern that the CI might be further injured if he continued his workload. At the MEB/narrative summary (NARSUM) exam dictated 11 March 2002, approximately 5 months prior to separation, the CI reported right knee pain. The MEB referenced findings on the orthopedic exam of 14 January 2002 as discussed above. At the VA Compensation and Pension (C&P) examination dated 17 June 2002, approximately 2 months prior to separation, the CI reported continued right knee pain. The physical exam findings noted a stable painful knee with normal gait and normal ROM. The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the condition 10% under code 5010, traumatic arthritis, citing chronic right knee pain with occasional symptomatic instability. The VA rated the condition at 10% under code 5259, cartilage removal, based on the limited and painful movement of the right knee. A higher rating under the 5010 requires radiographic evidence of disease involving more than one joint; and no higher rating is included in the VASRD code 5259. The Board agreed there was pain on motion supporting the 10% rating with application of VASRD §4.59 or §4.40 the minimal compensable rating for pain. The Board considered code 5258; however, there was no objective evidence of knee instability, such as frequent episodes of locking and effusions to support the use of this code. The Board agreed the knee was not compensable under ROM codes 5260 and 5261. The Board concluded there was no VARSD sanctioned pathway to a higher rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right knee pain condition. Contended PEB Condition: The contended condition adjudicated as not unfitting by the PEB was mild persistent asthma. The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. If the Board adjudicates the condition to be unfitting, then a rating recommendation will follow. The Board agreed the CI had mild persistent asthma requiring treatment with daily medication and rescue treatment as needed. The Board agreed the asthma condition to be well controlled at separation. The CI was on permanent profile for his asthma consisting of no gas chamber training and no wearing protective gas mask. The profile also indicated the CI was able to perform PT tasks, substituting bicycling for running, do sit-ups and lift 50 pounds and could walk at his own pace. The commander’s statement suggested the disability was the knee condition. There are no entries in the treatment record that indicated frequent emergency room or unscheduled clinic visits, hospitalizations, episodes of respiratory failure or monthly visits to a physician for required care of asthma exacerbations. The Board noted the CI to miss no work nor to be placed on quarters for the asthma condition. This condition was reviewed and considered by the Board. There was no performance based evidence from the record that asthma significantly interfered with satisfactory duty performance. After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended asthma condition; therefore, no additional disability rating can be recommended. 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the right knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended asthma condition, the Board unanimously recommends no change from the PEB determination as not unfitting. There were no other conditions within the Board’s scope of review for consideration. RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows: UNFITTING CONDITION VASRD CODE RATING Chronic Right Knee Pain 5010 10% COMBINED 10% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120725, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxx, 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, AR20130003911 (PD201201712) 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 and hereby deny the individual’s application. This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail. BY ORDER OF THE SECRETARY OF THE ARMY: Encl xxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)