RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  	CASE:  PD1201407
BRANCH OF SERVICE:  Army	BOARD DATE:  20130409
SEPARATION DATE:  20020423

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (13F10/Fire Support Specialist) medically separated for a right knee condition.  The CI had right knee pain since 1999, when he sustained a right knee dislocation during a heavy road march.  Surgical arthroscopy was performed in 2001 followed by physical therapy.  The right knee condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  The CI was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right knee condition, characterized as “right knee chronic pain with patella chondromalacia status post knee arthroscopy” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated “right knee pain secondary to chondromalacia patella” as unfitting, rated 10% referencing the US Army Physical Disability Agency (USAPDA) pain policy and table of analogous codes.  The CI made no appeals and was medically separated with that disability rating.

CI CONTENTION:  “At the time I had only one surgery and I was and had been walking with a cane.  The spot on my knee which was believed to be a bruise on the bone which turned out to be osteonecrosis which was discovered after 3 surgeries.  After my discharge I had my second surgery to continue to try to fix my knee.  Since my initial injury, I have had 5 surgies with the 5th resulting in total knee replacement.  At the time of my discharge I was still unable to walk without the assistance of a cane and was still in pain and the first surgery had not helped or made any difference.  I was injured on duty while on a road march in Korea.”  The CI also stated “At the time of my review I do not feel that all the facts play as an important roll or carry as much weight as it should have.  Also the extent of damage in my knee was not perceived to be as bad as it really was.  I have had a total of 5 knee surgeries resulting in a total replacement.  I am greatful for the chance for everything to be reviewed and hopefully given more consideration.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI.  The rating for the unfitting right knee condition is addressed below.  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 respective Board for Correction of Military Records.  The Board acknowledges the significant impairment with which the CI’s service-connected condition burdens him but must emphasize 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.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation.

The Board also acknowledges the CI’s assertions that the disability disposition was rushed and did not consider all the facts at hand and did not accurately reflect his condition at time of separation.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations; redress in excess of the Board’s scope of recommendations (as noted above) must be addressed by the respective Service Board for the Correction of Military Records or the United States judiciary system.

RATING COMPARISON:  

Service IPEB – Dated 20011226	VA - (3 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain Secondary to Chondromalacia Patella	5299-5003	10%	S/P Arthroscopic Surgery of the Right Knee	5260	0%	20020117	
No Additional MEB/PEB Entries	Other x 12	20020117	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20020509 (most proximate to date of separation [DOS]).   
VARD 20080807 increased 5260 (right knee) to 10%, combined increased to 40% effective 20080331.  VARD 20090226 awarded temp total evaluation (100%) post right knee surgery from 20090102; decreased to 10% for right knee, combined to 40% from 20090401. 

ANALYSIS SUMMARY: 

Right Knee Condition.  The narrative summary (NARSUM) notes that the CI continued to experience retropatellar pain for about 2 years following his original knee dislocation injury and arthroscopy.  Magnetic resonance imaging (MRI) was performed and read as normal apart from a small Baker’s cyst in the popliteal fossa.  A month after that study, the CI underwent diagnostic arthroscopy which revealed Grade II chondromalacia of the medial facet of the patella, felt to be secondary to the pre-existing dislocation, as well as  lateral impingement syndrome.  A lateral release procedure was performed during the arthroscopy.  Following the procedure, the CI continued to report pain, weakness and feelings of instability.  He was noted to walk with a cane and to occasionally use a knee brace.  At the MEB exam performed 5 months prior to separation, the CI reported continued knee pain and inability to perform his duties as a forward observer.  The MEB physical exam noted full range-of-motion (ROM), with the knee being stable in all planes.  There was slight effusion and slight peripatellar tenderness.  Poor quadriceps tone was noted.  Orthopedic treatment notes documented slight effusion, tenderness and limited ROM of 0-130 degrees (normal 0-140 degrees).  The non-medical assessment (NMA) stated the CI was “incapable of reasonably performing his duties as a 13F Fire Support Specialist, due to his knee problem.”  At the VA Compensation and Pension (C&P) exam 3 months prior to separation, the CI reported pain with weakness, stiffness, inflammation, instability, locking and fatigue.  Examination revealed normal ROM without evidence of instability, laxity, weakness or locking.  There was no additional pathology evident on examination.  X-Ray examination performed in conjunction with the VA exam was normal.  VA exam in 2008, 6 years after separation, documented pain-limited flexion, swelling, clicks or snaps and a small joint effusion and non-displaced posterior horn tear of the meniscus on MRI.  There was VA evidence of further knee surgery in 2009.

The Board directs attention to its rating recommendation based on the above evidence.  Applicable codes are 5261 (limitation of extension of the leg) and 5262 (Tibia and fibula, impairment).  The PEB described the condition as right knee pain secondary to chondromalacia patella and chose to code analogously as 5299-5003.  It assigned a 10% rating IAW with the USAPDA pain policy based on the pain being slight/frequent.  The Board considered the VA pre-separation exam as probative, with the VA exams multiple years after separation not indicative of the CI’s disability picture proximate to separation.  The Board first considered coding as 5261 and, noting that the exams most proximal to the date of separation documented normal ROMs, concluded that a rating of no higher than 0% could be granted without application of VASRD §4.59 (painful motion) or §4.40 (limitation of function).  The Board then considered coding with 5262.  Since there was no objective evidence of right knee ankylosis, subluxation, instability, weakened movements, or excessive fatigability, the Board concluded the disability could be characterized as no more than “slight” and therefore rated no higher than 10% under that coding approach.  Although pain was consistently reported by the CI, and chondromalacia was demonstrated arthroscopically, there was no comment by examiners regarding repetitive motion, fatigability or other DeLuca criteria, and exams proximal to separation did not specifically mention painful motion.  However, with regard to functional loss, the Board did note the documentation of the CI’s use of a cane and occasional use of the knee brace, his complaints of pain, weakness and feeling of instability with his knee giving out, the NMA statement, and functional limitations mentioned on the MEB exam.  Considering the overall clinical picture, the Board concluded that the condition did meet the requirements for conceding a minimum 10% rating IAW VASRD §4.40 (functional loss), §4.45 (the joints), and §4.59 (painful motion).  There is no route to a higher rating under any applicable code and no coexistent pathology which would merit additional rating for the right knee condition under a separate code.  Thus, neither the PEB choice of VASRD code nor application of the USAPDA pain policy was detrimental to arriving at the highest achievable rating IAW VASRD §4.71a.  All evidence considered, there is not reasonable doubt in the CI’s favor supporting a change from the PEB’s coding or rating decision 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 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 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 Pain Secondary to Chondromalacia Patella	5299-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120602, 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 AR20130009515 (PD201201407)

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