RECORD OF PROCEEDINGS PHYSICAL DISABILITY BOARD OF REVIEW NAME: XXXXXXXXXXXXXXX BRANCH OF SERVICE: ARMY CASE NUMBER: PD1201188 SEPARATION DATE: 20020212 BOARD DATE: 20130308 SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, SGT/E-5, (92A/Automated Logistical Specialist), medically separated for chronic bilateral knee pain. The CI sustained a twisting type injury to her left knee in early 1999 and underwent an anterior cruciate ligament (ACL) reconstruction. The CI sustained another twisting type injury, this time to her right knee and again underwent an ACL reconstruction on the right knee. Since her last surgery she continued to complain of knee pain, mostly to her right knee. She was unable to progress in her rehabilitation and could not meet the physical requirements of her Military Occupational Specialty (MOS). Her profile allowed for an alternate aerobic event to satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded no other conditions for Informal Physical Evaluation Board (IPEB) adjudication. The IPEB adjudicated the bilateral knee condition as unfitting, rated as a single unfitting condition at 10%, with cited application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI requested a Formal PEB (FPEB), but later accepted the IPEB findings and was medically separated with a 10% disability rating. CI CONTENTION: “I believe I should have gotten a 30% disability rating for my disability, 10% for left knee, 10% for right knee and 10% for my depression. I should have been given retirement benefits from Army. Instead they said that there was not enough evidence to rate my panic disorder when I had been treated for 2 years following a diagnosis. I feel I should have been found eligible for retirement.” 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 left and right knees, as requested for consideration meet the criteria prescribed in DoDI 6040.44 for Board purview and are addressed below. The other requested condition, depression, 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 the Correction of Military Records. RATING COMPARISON: Service IPEB – Dated 20011105 VA (STR used) – All Effective Date 20020213 Condition Code Rating Condition Code Rating Exam Bilateral Knee Pain 5099-5003 10% R knee patellofemoral pain s/p ACL reconstruction 5299-5260 10%* STR L knee patellofemoral pain s/p ACL reconstruction 5299-5260 10% STR .No Additional MEB/PEB Entries. Panic Disorder 9412 10% STR 0% X 1 / Not Service-Connected x 2 Combined: 10% Combined: 30% *R knee 5299-5260 changed to 5299-5014, then temporary 100% (20070214-20070401) and added 20% laxity 5257 effective 20070401 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 service 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. The IPEB combined the right and left knee conditions as a single unfitting condition, coded analogously to 5003 (degenerative arthritis) and rated 10%. The Board first evaluated the IPEB coding approach of combining the conditions under the single analogous 5003 code. The IPEB relied on AR 635-40 for not applying separately compensable VASRD codes (and invoked the USAPDA pain policy for rating). Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints; and, IAW DoDI 6040.44, the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings. If the members judge that separate ratings are indicated IAW VASRD §4.7 (higher of two evaluations), however; each unbundled condition must be reasonably justified as separately unfitting to remain eligible for rating. When the Board recommends separate ratings in this circumstance, the result may not be lower than the overall combined rating from the PEB. Bilateral Knee Pain. The CI had a history of bilateral knee pain; first left knee in 1999, diagnosed as ACL tear and underwent surgical reconstruction. Her right knee had the same diagnosis and surgical treatment in December 2000. Despite aggressive PT, she failed to adequately rehabilitate and remained with knee pain and thigh weakness of each knee. There was no objectively reported post-operative instability, locking, or effusion. The knee exams and goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below. Knee ROM (degrees) PT ~24 Mo. Pre- Sep Ortho ~11 Mo. Pre-Sep MEB ~4 Mo. Pre-Sep Left Right Left Right Flexion (140) FAROM 140 135 135 Extension (0) FAROM 0 0 2 Comment “pain”; +1 Lachman; quad weakness Poor quad tone; negative AD/Lachman no val/var instability; + tender; weak quad/ atrophy; crepitus no val/var instability; + tender; + painful motion; weak quad/ atrophy; crepitus §4.71a Rating 10% 0-10% 10% 10% At the MEB exam, (4 months prior to separation) the CI reported bilateral knee pain associated with difficulty ascending and descending stairs and the inability to run or perform exertional activities. The MEB physical exam noted bilateral patellar hypermobility, crepitus with ROM, weak and minimally atrophied thigh musculature, and tenderness. There was markedly positive Steinmann’s quadriceps inhibition test. Painful motion was noted on the right knee. Additionally, the examiner noted no lateral instability, but other stability tests of both knees indicated trace anterior drawer and trace Lachman’s test with firm endpoint on each knee. The VA Compensation and Pension (C&P) rating decision dated 21 March 2002 utilized service treatment records (STRs) from 1993 through 2002 as evidence for analogous coding 5299-5260 (leg; limitation of flexion) at 10% rating for each knee. The STR had many outpatient notes from orthopedics and physical therapy that were unclear (hand-written) and lacked actual ROM measurements of either knee. The profile listed the right knee condition and the commander’s statement and NARSUM indicated both knees as limiting duty. There was no C&P exam performed proximate to separation. VA records remote from separation indicated right knee meniscal surgery 5 years post separation with an additional 20% rating of the right knee for laxity. The Board directs attention to its fitness and rating recommendation based on the above evidence. The earlier documented exam findings were left-knee specific whereas the later exam findings were right-knee specific. The left and right knee conditions were equivalent in diagnosis and clinical features with the right knee more severe than the left. The profile listed only the right knee condition; however, the commander’s comments, MEB and PEB noted both knees as productive of disability. All members agreed therefore that each knee condition was reasonably unfitting and, accordingly merits a separate rating. The Board concluded that application of VASRD §4.40 (functional loss) was supported independently for each knee in this case; and, separate rating recommendations pursuant to VASRD §4.71a would result. The right knee demonstrated specified painful motion and therefore would meet a 10% rating IAW VASRD §4.59 (painful motion). The left knee revealed tenderness with palpation, but no specified painful motion on exam. However, both knees revealed weakness and atrophy of the primary extensor muscles of the knee, crepitus and patellar hypermobility and apprehension. Therefore, the left knee would warrant a minimally compensable rating with application of §4.40 (functional loss). The VASRD §4.40 states “weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.” After careful consideration, all Board members agreed that a minimal compensable rating under either a specific joint code or an analogous 5003 code was therefore supported by application of §4.40. In this case, a compatible analogous clinical fit with continued post-operative pain is patellofemoral pain syndrome (as used by the VA), but coded as 5024 (tenosynovitis) and rated per 5003 criteria. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends separate ratings of 10% for each knee condition, coded 5003- 5024 at 10% for the right and 5003-5024 at 10% for the left. 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 bilateral knee pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the bilateral knee condition, the Board unanimously recommends that each joint be separately adjudicated as follows: an unfitting right knee condition coded 5003-5024 at 10%; and, an unfitting left knee condition coded 5003-5024 at 10%; both 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 her prior medical separation: UNFITTING CONDITION VASRD CODE RATING Patellofemoral Pain Syndrome, Left Knee 5003-5024 10% Patellofemoral Pain Syndrome, Right Knee 5003-5024 10% COMBINED (Incorporating BLF) 20% The following documentary evidence was considered: Exhibit A. DD Form 294, dated 20120624, w/atchs Exhibit B. Service Treatment Record Exhibit C. Department of Veterans’ Affairs Treatment Record xxxxxxxxxxxxxxxxxxxxxxxxx, DAF Acting Director Physical Disability Board of Review SFMR-RB MEMORANDUM FOR Commander, US Army Physical Disability Agency (TAPD-ZB / xxxxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxxxx, AR20130007828 (PD201201188) 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 xxxxxxxxxxxxxxxxxxxxxxxx Deputy Assistant Secretary (Army Review Boards)