RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01993
BRANCH OF SERVICE:  Army	BOARD DATE:  20140625
SEPARATION DATE:  20051208

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (13P/Multiple Launch Rocket System/Fire Direction Control) medically separated for chronic right knee pain.  The 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 right knee condition, characterized as “arthritis due to trauma (meniscus tear)” was forwarded to the Physical Evaluation Board (PEB) as not meeting retention standards IAW AR 40-501.  The MEB also identified and forwarded “cyclothymia” as meeting retention standards.  The PEB adjudicated the chronic right knee pain as unfitting, rated 10% referencing the US Army Physical Disability Agency (USAPDA) pain policy.  The cyclothymia was determined to be not unfitting and was not rated.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Adjustment disorder & posttraumatic stress disorder (PTSD) – worse than thought emotional wreck.   Right partial bicep tear – is actually a torn right pectoral – never healed see attachment”

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 chronic right knee pain is addressed below.  The contended adjustment disorder and PTSD will also be considered by the Board under its review of the not unfitting cyclothymia as found by the PEB.  The contended right bicep and right pectoral muscle were not identified by the MEB or PEB and are therefore not within the purview of the Board.  Any condition 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 20050922	VA - (5 and 6 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain	5099-5003	10%	DJD Right Knee	5010-5260	0%*	20060502	
Cyclothymia	Not Unfitting	Anxiety and Adjustment Disorders	9400	30%	20060601	
	Not Unfitting	No VA Entry	
Other x 0 (Not in Scope)	Other x 3	20060502	
Combined:  10%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20070524 (original VARD not in evidence).
* VARD 20070524 increased DC 5010-5260 to 10% effective 20061121.

ANALYSIS SUMMARY:  The Board acknowledges the CI’s implied contention for rating of his cyclothymia condition (recognized by his contention of other mental health [MH] disorders) which was determined to be not unfitting by the PEB; and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career.  Should the Board judge that any MH condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation will be recommended.

Chronic Right Knee Pain Condition.  The CI developed ongoing right knee pain subsequent to an injury playing basketball in 1999.  A lateral meniscal tear was addressed arthroscopically in August 2002.  He presented with progressive pain in 2004 despite no acute injury; magnetic resonance imaging showed degenerative changes.  At the narrative summary exam on 27 July 2005 (4 months prior to separation) the CI reported problems with activities such as mowing the lawn, heavy lifting or sitting or standing for prolonged periods.  He could no longer engage in sports activities.  Physical exam revealed no swelling and no ligament instability.

At the VA Compensation and Pension exam performed 5 months after separation, the CI reported intermittent mild pain not produced by activity approximately twice per month for 2-3 days.  Once per month he experienced more severe pain as a result of some activity, such as running or jumping.  He used a knee brace.  Activities of daily living were unaffected and the knee had no effect on his occupation as a student.  Exam showed a normal gait.  There was no pain or tenderness and no additional limitation with repetition.  Ligaments were intact.  The 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.

Right Knee ROM
(Degrees)	Ortho (MEB) 
~4 Mos. Pre-Sep	VA C&P ~5 Mos. Post-Sep	
Flexion (140 Normal)	125	140	
Extension (0 Normal)	0	0	
Comment	+Painful motion, tenderness		
§4.71a Rating	10%	0%	

The Board directs attention to its rating recommendation based on the above evidence.  Although the service exam reported non-compensable limitation of motion, the PEB’s 10% determination under an analogous 5003 code (degenerative arthritis) was appropriate considering there was sufficient evidence of pain with use (§4.40 “functional loss”) and painful motion (§4.59).  A 10% rating was also supported under code 5259 (cartilage, semilunar, removal of, symptomatic).  The Board considered pathways to a rating higher than 10%, but concluded the alternate knee codes 5257 (knee, other impairment of) and 5258 (dislocated semilunar cartilage) provided no such avenue.  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 right knee pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the cyclothymia condition was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The Report of Medical Assessment dated 2 June 2005 (6 months prior to separation) the CI wrote that pain interfered with performance of his duty, but did not indicate that duty performance was impaired from a mental health condition.  The CI informed the MEB separation examiner on 6 June 2005 that he was depressed in Iraq.  The examiner referred the CI to a MH provider.  An NCO Evaluation Report written on 21 June 2005 stated that he “worked extremely well under pressure” and “was mentally tough, able to manage numerous tasks at one time.”

An MEB addendum examiner on 27 June 2005 noted that the CI was “having a tough time going through a divorce with severe depressive symptoms…and having a hard time dealing with his changing career status,” and that he was scheduled to see a counselor soon.  A memorandum to the MEB written by a psychiatrist on 8 September 2005 (3 months prior to separation) stated that the CI was being treated for a diagnosis of cyclothymia and that he had responded well to treatment.  His condition was not considered to be serious and did not render him unfit for duty, including deployment.  An undated commander’s statement described several ways in which his unfitting knee condition adversely impacted his duty performance, but did not mention any limitations on the basis of mental health problems.  He was noted to have “technical aptitude” and displayed “sincere effort.”

The cyclothymia condition was not profiled or implicated in the commander’s statement, and was not judged to fail retention standards.  This was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that cyclothymia, or any MH condition, significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the cyclothymia condition and so no additional disability rating are recommended.

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 chronic right knee pain was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic right knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended cyclothymia condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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 20131012, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

			
XXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXX, AR20150002523 (PD201301993)

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