RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  		BRANCH OF SERVICE:  army
CASE NUMBER:  PD1201692	SEPARATION DATE:  20040109
BOARD DATE:  20130509

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SSG/E-6 (88M/Motor Transport Operator) medically separated for a right knee condition.  The CI suffered a twisting injury to his right knee in July 1999.  All imaging studies were normal and the orthopedic surgeon’s assessment was early degenerative joint disease (DJD).  He was treated non-operatively over a 4 year period but could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was consequently issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The right knee condition, characterized as DJD, right knee, was forwarded to the Informal Physical Evaluation Board (IPEB) as medically unacceptable IAW AR 40-501.  Recurrent heat injury/heat exhaustion was identified by the MEB and also forwarded to the IPEB as failing retention standards.  The IPEB adjudicated the degenerative arthritis right knee condition as unfitting, rated 0%, with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The heat injury/heat exhaustion condition was determined to have existed prior to service (EPTS) with no permanent service aggravation.  The CI withdrew an initial request for a Formal PEB and was medically separated.

CI CONTENTION:  The application does not elaborate any specific comments or requests.

SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in Department of Defense Instruction (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 rating for the unfitting right knee condition and multiple heat injuries are 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 Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20031017	VA – Effective 20040110	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Degenerative Arthritis Right Knee	5099-5003	0%	Residuals, Right Knee Injury	5260	NSC	STRs*	
Multiple Heat Injuries	EPTS	Heat Injury Residuals	8099-8009	NSC	STRs	
↓No Additional MEB/PEB Entries↓	No Additional VA conditions	
Combined:  0%	Combined:  NSC	
* STRs is service treatment records

ANALYSIS SUMMARY:  The Board’s authority, IAW DoDI 6040.44, is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD, based on ratable severity at the time of separation.

Right Knee Condition.  The service treatment records (STRs) contain a line of duty “yes” determination that documents the CI sustained a twisting injury to his right knee while running on an obstacle course in June 1999.  They also document that he underwent arthroscopic surgery for a previous meniscal injury to the right knee in March 1991.  He was referred to orthopedics for management and when his knee pain did not respond to non-steroidal anti-inflammatory medications a magnetic resonance imaging (MRI) study was requested.  The MRI showed some likely degeneration in the medial meniscus.  Non-operative treatment with physical therapy continued over a four year period.  When the CI was referred into the Disability Evaluation System (DES) for another condition (which was ultimately adjudicated as EPTS without service aggravation), the right knee was identified and found to be unfitting.  The narrative summary prepared three and a half months prior to separation documents that the CI passed the alternative physical fitness test, performing the two and a half mile walk because of his knee pain.  All documentation states that the CI complained of knee pain while all physical exams within 2 years of separation document a full range-of-motion, no instability and no significant meniscal pathology.  Two physical examinations document the presence of “crepitus” during examination.  The final orthopedic surgeon’s impression (a month prior to separation) was that the CI had “right knee pain, early DJD, negative McMurry’s (a test for meniscal pathology) and MRI showed no meniscal pathology.”  The only VA rating decision document prepared 3 years after separation utilized STRs to arrive at its rating decision as there was no VA Compensation and Pension exam performed.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied the analogous VASRD code of 5099-5003, degenerative arthritis, and rated it 0% citing “normal range of motion and no instability.”  That 0% rating ignores the possibility of the 10% rating option under §5003 which states: 

“When however, the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10 pct. is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003.  Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion.”

The VA applied code 5260, limitation of knee flexion; however, did not grant the knee condition service-connection.  Because the PEB adjudicated the knee condition as unfitting; the Board must apply a separate code and rating if compensable rating is achieved IAW VASRD §4.71a.  In this case, the only appropriate code is 5003, as there was no significant residual meniscal pathology, no injury to any leg bone and no evidence of instability.  Under VASRD policy 4.59, painful motion, “crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contacts which are diseased.”  There were two examinations that document the presence of crepitation in the CI’s right knee.  This finding meets the intent of §5003 for granting a 10% evaluation based on limitation of motion under §4.59.  An alternative coding and rating scheme would be for the analogous VASRD code of 5299-5259, symptomatic cartilage removal, that would also result in a 10% evaluation.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the degenerative arthritis right knee condition.

Multiple Heat Injuries Condition.  The CI experienced recurrent heat injuries while deployed to the southwest Asian theater.  The CI experienced two episodes of heat injury requiring intravenous fluid therapy and duty restriction.  He was medically evacuated back state-side due to these injuries and was entered into the DES for both his heat injury and right knee conditions.  The narrative summary prepared 3 months prior to separation contained the following entry: 

His heat injury has been on an ongoing problem for the last two years, and really since his childhood.  He had his first heat injury at age 12. He has had subsequent heat injuries in 1981, two in 1985, 1988, 2000, 2002, and two in 2003.  . He would catch it before it would become a heat stroke and go on sick call, receive IV fluids and modify his duties for a period of time until the heat either passed or the training was over.  He was having problems in Kuwait because he had to wear the body armor and Kevlar, and it was difficult to find a cool area to convalesce.

Based on the STRs, the VA denied service-connection with the following statement:

Although there is a record of treatment in service for residuals, heat exhaustion/heat stroke, no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service.  The evidence established that you had multiple heat related situations since childhood (age 12) to include episodes while on active duty. You had full recovery and no residual impairment (disabling condition) other than "risk" of additional heat related injuries and a requirement to avoid elevated ambient temperatures.

Review of the STRs does verify at least two separate entries by medical providers documenting two episodes of heat injury (requiring hospitalization) prior to entering military service.  The CI did not mention a history of heat injury on any medical history form at accession into military service.

The Board directs attention to its recommendation based on the above evidence.  The PEB adjudicated the CI’s recurrent heat injury condition by applying the analogous VASRD code of 7999-7900, hyperthyroidism, and designating it EPTS and not service aggravated; thus, no rating was granted.  Using the same medical data, the VA denied service connection and also concluded there was no permanent service aggravation.  The Board reviewed the STR and deliberated on both the EPTS and not service aggravation issues.  Members agree that the preponderance of evidence supports the conclusion that the CI’s heat injury condition EPTS.  There is no evidence in the STR that suggests there was any permanent disability after recovery from the acute illness.  Additionally, rating heat injury under VASRD code 7900 (which is customary) would result in a 0% rating as the conditions for a 10% rating were not present.  Finally, the CI had less than 8 years of active duty service and therefore 10 U.S.C. §1207a does not apply in this case.  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 multiple heat injuries 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.  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 degenerative arthritis right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5003, IAW VASRD §4.71a.  In the matter of the multiple heat injuries condition, 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING	
Degenerative Arthritis Right Knee	5003	10%	
Multiple Heat Injuries	EPTS – No Service Aggravation	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20120711 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 AR20130012149 (PD201201692)

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 10% 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						
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA