RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1201470
BRANCH OF SERVICE:  Army	BOARD DATE:  20140508
SEPARATION DATE:  20030602

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (96H/Military Intelligence) medically separated for left knee condition.  The CI received a shrapnel injury to his left knee from a stray artillery round during a field training exercise.  The knee condition 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 knee condition, characterized as “status post grade III open fracture to his left patella.” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “chronic left knee pain postoperative with 10% of patella removed” as unfitting, rated 0% referencing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI appealed to the Formal PEB (FPEB) which increased the rating to 10% citing the USAPDA pain policy.  The CI was then separated.

CI CONTENTION:  The CI writes: “Went from 40% to 30%.  Mobility from injury is still an issue as well as financial support has decreased”.

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 knee condition is addressed below and, no additional conditions are within the DoDI 6040.44 defined purview of the Board.  The CI’s contention of rating change (“went from 40% to 30%”) appears to be related to the VA’s combined rating change from 40% (effective on 3 June 2003) to 30% effective on 1 September 2010, due to a decreased 5257 rating.  VA ratings and post-separation changes in conditions are outside the scope of the Board.  The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him; but, must emphasize that the Military Disability Evaluation System has neither the role nor the authority to compensate service 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 Veteran Affairs, operating under a different set of laws.  The Board considers VA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12 month interval for special consideration to post-separation evidence.  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. 

RATING COMPARISON:

Service FPEB – Dated 20030227 | VA - (1 Mos. Pre-Separation)
Condition | Code | Rating | Condition | Code | Rating | Exam
Chronic L Knee Pain Status Post (s/p) Grade III Open Fracture of the Patella | 5099-5003 | 10% | Residuals of Shrapnel Wounds, L Knee, Medial/Lateral Ligamental Laxity | 5257 | 20% | 20030508
| | | Residuals of Shrapnel Wound Left Knee, Scar | 7801 | 10% | 20030508
No Additional MEB/PEB Entries | Other x 5 | 20030508
Combined:  10% | Combined:  40%*
Derived from VA Rating Decision (VARD) dated 20030624 (most proximate to date of separation [DOS]).   * See text above.

ANALYSIS SUMMARY:

Chronic Left Knee Pain.  The CI sustained a mortar shrapnel injury to his left knee as a result of a field artillery training accident on 20 March 2002.  Additionally, he sustained a brief loss of consciousness and shrapnel to the face.  A Grade III open fracture of the left patella was surgical treated by I&D (irrigation and debridement) and open reduction and internal fixation of the fracture that resulted in approximately 10% of the patella being removed.  Post-operatively, he was hospitalized for 5 days and underwent physical therapy (PT) thereafter.  By July 2002, PT records indicated the CI was taking no medication.  Because of inability to stand for extended periods of time and continued pain, he was referred into the Disability Evaluation System.  The narrative summary dated 3 October 2002 noted that X-rays of his left knee showed a well healed patellar (knee cap) fracture with a single screw through the patella, which was in good position.  There was a well-healed scar over the anterolateral portion of the knee measuring 6 inches with good scar mobility and he was neurovascularly intact distally.  His prognosis was thought to be “pretty good,” and he “needed continued physical therapy to get flexion back and to be able to be employed.”  The potential for “some eventual anterior compartment arthritis” was noted.  Examination from 18 September 2002 of the left knee noted limited range-of-motion (ROM) following open reduction internal fixation and scars of left knee.

At the VA Compensation and Pension exam performed on 8 May 2003, a month before separation, the report indicated an irregular shaped, well healed scar, approximately 12 inches long along the supra and lateral aspect of the left patella and approximately 2 inches wide at the widest point.  The patella was in the midline with slight swelling in the infra-patellar area.  A cane, which was held in his right hand, was used for ambulation and the exam and ROMs are summarized below.

The goniometric 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.

Left Knee ROM
(Degrees)

Ortho/NARSUM ~8 Mo. Pre-Sep
(20020925)

VA C&P ~1 Mo. Pre-Sep
(20030508)

Flexion (140 Normal) | 110 | 125
Extension (0 Normal) | 0 | 3
Comment:  Surgery 20030320 | “chronic pain”, inability to stand for prolonged time Stable to anterior, posterior, varus, and valgus stresses at 0⁰ and 30°.  Negative pivot shift; reverse pivot shift; Lachman; anterior and posterior drawer. | Cane for ambulation; No medial or lateral laxity when the knee is at 0⁰ flexion.  10⁰ of medial and lateral laxity at 30⁰ flexion.  Negative Lachman and McMurray signs.  Scar present/tender, pain
§4.71a Rating | 0-10% (FPEB 10%) | 10% (VA 20% + 10% scar)

The Board directs attention to its rating recommendation based on the above evidence.  The FPEB rated the knee at 10% IAW the USAPDA pain policy while the VA rated the knee at 20% (coded 5257) for moderate instability plus a 10% rating (coded 7801) for a scar over 6 square inches without limiting motion.  The Board determined that the scar was not a separately unfitting condition as it had no impact on duty performance.  The Board then deliberated the probative values of the two ratable knee exams.  The orthopedic exam was 8 months prior to separation and 6 months following surgery (allowing good healing) and noted no laxity, while the VA exam was a month pre-separation.  The VA noted degree of laxity did not seem to be consistent with the orthopedic operative and treatment notes as well as PT records especially in the absence of a CI’s report in the records reviewed of any knee buckling, giving out, or twisting.  Additionally that level of instability appeared to more nearly approximate the 5257 slight disability picture (10%).  There was no clear-cut support for painful motion in either exam and dual rating of the knee (instability and pain-limited motion) was not adequately supported by the evidence.  The Board adjudged that the service exam had the highest probative value for rating.  The service exam would only warrant a 10% rating compliant with VASRD §4.71a criteria if painful motion (VASRD §4.59) was conceded.  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 chronic left 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 left 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 left 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 re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120809, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20140019384 (PD201201470)

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						     XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA

PD1201470