Author: JOHN J. D'ORAZIO
Last saved by: BARKSDALE, JAMEILL M GS7 USAF SAF SAF/MRBE
Company: Pre-installed Company

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	BRANCH OF SERVICE:  Army
CASE NUMBER:  PD1200353	SEPARATION DATE:  20050609
BOARD DATE:  20130320

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active National Guard, SPC/E-4, 88M, Motor Transport Operator, medically separated for chronic right knee pain and tibia pain.  The CI sustained a right femur and tibia fracture in August 2003 requiring surgery.  The fractures healed, but he continued to have pain in his knee and leg and could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB forwarded no other conditions for PEB adjudication.  The PEB adjudicated the chronic right knee and tibia pain and stiffness unfitting, rated 20%, with application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals, and was medically separated with a 20% disability rating.  

CI CONTENTION:  “Fairness of Rating.” The CI elaborated no specific contention in his application.  

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 Service ratings for unfitting conditions will be reviewed in all cases.  The unfitting right knee and leg pain meet the criteria prescribed in DoDI 6040.44 for Board purview, and are accordingly addressed below.  Posttraumatic Stress Disorder (PTSD) 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 IPEB – Dated 20050504 | VA (12 Mos. Post-Separation) – All Effective Date 20050610
Condition | Code | Rating | Condition | Code | Rating | Exam
Right Knee and Tibial Pain | 5099-5003 | 20% | Residuals s/p fx R Femur | 5255 | 30% | 20060622
| | | Residuals s/p fx R Tibia; posttraumatic degenerative osteoarthritis R knee | 5010-5262 | 30% | 20060622
↓No Additional MEB/PEB Entries↓ | PTSD | 9411 | 100% | 20060609
| 0% X 0 / Not Service-Connected x 1 | 20060609
Combined:  20% | Combined:  100%

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 Evaluations 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 PEB chose to collectively code the conditions under a single rating.  This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board must apply only Veterans Affairs Schedule for Rating Disabilities (VASRD) guidance to its recommendation.  The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself.  Since §4.71a criteria are met for separate joint ratings in this case, the Board is pursuing separate rating and fitness evaluations.  The Board’s threshold for countering DES fitness determinations is higher than the VASRD §4.3 (Resolution of reasonable doubt) standard used for its rating recommendations, but remains adherent to the same DoDI 6040.44 standards referenced above.  

Right Knee and Tibia Condition.  The MEB examiner recorded the CI’s history of chronic right knee pain associated with femur and tibia fractures in August 2003 while deployed.  Injuries consisted of a right closed fracture of the mid right femur and an open fracture of the right mid tibia.  These were treated in theater with cleansing and closure of the open tibia wound and stabilization of both fracture sites with external fixators.  The CI was medevaced to Germany where definitive treatment was undertaken with placement of intramedullary rods in the femur and tibia placed through a knee incision.  With rehabilitation, the fractures healed satisfactorily.  On physical therapy (PT) examination, 4 April 2004, the CI reported pain in knee and lower leg to be constant, worse with weather.  Gait was normal; range-of-motion (ROM) of the knee was recorded as flexion 125 degrees with no swelling and negative knee tenderness.  Tenderness of the middle portion of the tibia was noted.  In late August 2004, the CI noted an increase in the knee and lower leg pain.  A bone scan of the right leg suggested osteomyelitis of the distal femur and a soft tissue infection of the mid tibia.  At surgery performed 24 September 2004, the intramedullary rods were removed, and an abscess in the soft tissue of the mid tibia was drained.  No osteomyelitis (bone infection) was noted with the tibia and femur bones  described as intact; arthritic changes of the intra knee portion of both bones was reported.  With antibiotics the infection site healed without difficulty.  Routine X-rays of the right leg performed November 2004 revealed normal knee joint and femoropatellar spaces, no loose bodies, and good healing of fracture sites with no evidence of non-union (healed healing).  Orthopedic examination at that time recorded normal healing without signs of infection.  The examiner noted “patient will likely have knee pain the rest of his life.”  The commander reported the CI’s physical condition is incompatible with combat environments.  He has a profile restricting running, jumping or road marching.  He can walk or bike at his own pace and distance.  At the MEB NARSUM evaluation 9 December 2004, 6 months prior to separation, the CI reported right knee and lower leg pain.  On examination, ROM of the knee was recorded at 120 degrees with pain limiting full flexion.  There was no evidence of knee instability with all ligaments intact.  Tenderness noted on palpation globally around the knee and the knee was noted to be painful with any motion.  The CI was noted to have a slight limp that did not require walking aids.  The examiner opined “patient has early osteoarthritis of his right knee and most likely his knee will progress to further pain requiring knee replacement in the future.  I believe that with proper pain medication and PT, his prognosis is good; however, his knee will continue to progress with osteoarthritis.”  At the VA Compensation and Pension (C&P) evaluation, 22 June 2006, a year after separation, the CI reported moderate to severe pain on a continuous basis, and stiffness with prolonged standing.  He also reported knee gives away when attempting to climb stairs.  The CI was working full time as a machine operator in a wood plant.  On examination the CI was noted to walk slowly but had a steady gait with erect posture, without walking aids.  There was no evidence of edema, or deformity on inspection of the knees.  The examiner noted tenderness in both knees, right greater than left, palpable crepitus and audible popping of the right knee greater than the left knee.  Right knee flexion was recorded at 90 degrees with limitation due to pain and extension of 0 degrees.  Motor strength was normal.  Knee ligaments were intact with no evidence of knee instability.  

The Board directs attention to its rating recommendation based on the above evidence.  The PEB combined the right knee and tibial pain diagnoses under a single code, analogous to 5003 (degenerative arthritis) rated 20% using the Army Pain policy.  The VA rated the condition at 30% coded analogously 5010-5262 (impairment of tibia with marked knee disability) based on painful limitation of flexion/motion.  The Board noted with great interest the rating assigned by the VA given the presence of radiographic evidence of good healing of the bones without malunion, and the stability and noncompensable ROM of the knee in the record in evidence.  The Board undertook to unbundle the knee and tibia conditions for rating as noted IAW the Analysis Summary above.  The Board unanimously agreed that both were unfitting via the profile and commander’s statement.  The Board opined that the knee pain arose from sites on rod insertion in the portions of the tibia and femur within the anatomic milieu of the knee and could not be rated separately IAW VASRD §4.14 (Avoidance of pyramiding).  The Board noted the painful condition of the mid tibia below the knee and agreed that rating thereto was appropriate.  The Board agreed that §4.59 was applicable at 10% for both the knee and the mid tibia injury-combined 20%.  The Board agreed that the knee and tibia were noncompensible for ROM or instability.  The Board was unable to ascertain any rating code or combination of codes supported by the record in evidence for a rating higher than 20%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Resolution of reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the right leg 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 the USAPDA pain policy for rating the right knee condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the right knee and tibia pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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
Right Knee and Tibia Pain | 5099-5003 | 20%
COMBINED | 20%

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121120, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

	           Physical Disability Board of Review

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB), 

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for AR20130008366 (PD201200353)

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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA

PD1200353