RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2013-02745
BRANCH OF SERVICE:  Army	BOARD DATE:  20150407
SEPARATION DATE:  20070612 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-6 (Counter Intelligence Agent) medically separated for a right knee condition, a left knee condition and a heat injuries condition.  The conditions could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty, but was authorized to perform an alternate physical fitness test.  She was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The “bilateral knee pain” and “heat injury” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded two other conditions (irritable bowel syndrome [IBS] and temporomandibular joint [TMJ] dysfunction) for PEB adjudication.  The Informal PEB adjudicated the right knee condition, the left knee condition and the history of heat injuries condition as unfitting, rated 10%, 10% and 0% respectively.  The right knee condition was rated with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD), the left knee condition was rated citing application of the US Army Physical Disability Agency (USAPDA) pain policy and the history of heat injuries was rated IAW USAPDA Policy/Guidance Memorandum #12, Table of Analogous Codes.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I joined the Army after college to pursue a lifetime career in the US Army.  Due to multiple injuries and two combat tours I was found unfit for duty.  I loved being in the military as a counter intelligence agent and it broke my heart to leave however I was a risk to my fellow soldiers and could not lead them from the front as their NCO.  My knees would constantly give out on me and the pain was unbearable.  After two jaw surgeries my helmet was too much to bare and would give me paralyzing migraines and lock jaw.  My PTSD was and is unbearable and has changed my way of life.  These issues led to my medical separation.  My medical board only rated me on my knees and not my other injuries which led to a 20% disability separation.  This ended my future in the military and denied me the benefits of a military retirement.  My service-connected injuries prevent me from holding a job and cost me a divorce.  I have been granted social security benefits.”

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

IPEB – Dated 20070328	VA* - (~4 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Partial ACL Tear…	5257	10%	Right Knee Meniscal Tear and Internal Derangement	5299-5260	0%	20070226	
Left Knee Pain…	5099-5003	10%	Status Post Left Knee Arthroscopic Surgery	5299-5260	0%	20070226	
History of Heat Injuries with no Residuals	7999-7900	0%	Heat Exhaustion	8999-8900	0%	20070226	
Irritable bowel syndrome	Not Unfitting	No VA Placement	
Temporomandibular joint dysfunction	Not Unfitting	Temporomandibular Joint Dysfunction Status Post
Temporomandibular Joint Surgeries	9999-9500	0%	20070226	
Other x 0 (Not In Scope)	Other x 4	
RATING:  20%	RATING:  0%	
*Derived from VA Rating Decision (VARD) dated 20071001 (most proximate to date of separation (DOS)).  

ANALYSIS SUMMARY:

Left Knee Condition.  The narrative summary (NARSUM) notes the CI initially injured her left knee in October 2002.  Notes in the service treatment record (STR) indicate she fell while running because the knee “gave out.”  Initial X-rays in 2002, repeated in May 2003, were normal.  The pain persisted despite conservative treatment and she was referred for orthopedic evaluation.  Magnetic resonance imaging (MRI) of the left knee on 18 June 2003 noted a partial tear of the anterior cruciate ligament (ACL) without evidence of meniscal (semilunar cartilage) injury or arthritis.  A physical therapy (PT) note on 27 February 2004 indicated that arthroscopy had been performed and the diagnosis was patellofemoral pain syndrome (PFPS).  The CI was given a permanent L2 profile for the left knee in May 2004, approximately 3 years prior to separation.  Left knee X-rays on 21 February 2007 were normal.

At the MEB examination on 9 March 2007, 3 months prior to separation, the CI reported constant knee pain.  The MEB physical exam noted no swelling, effusion, joint line tenderness (JLT), instability or evidence of cartilage injury and range-of-motion (ROM) was 5 degrees hyperextension and 110 degrees flexion.  PT ROM for the MEB performed on 26 February 2007 was repeated three times and noted extension of 0, +3, and +5 degrees (+ indicates hyperextension) and flexion of 125, 127, and 126 degrees.

At the VA Compensation and Pension (C&P) examination on 26 February 2007, 4 months prior to separation, the CI reported daily bilateral knee pain, swelling, and instability, aggravated by weight bearing activities.  The exam noted a normal gait.  There was no tenderness to palpation of the left knee and there was full ROM with extension-flexion of 0 to 140 degrees.  The examiner noted the CI did report pain with ROM, but there was no change of ROM with repetition.  Strength and sensation of the extremities was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee condition 10%, coded 5099-5003 (Left knee pain) and cited the USAPDA pain policy.  The VA rated the left knee 0%, coded 5299-5260 (analogous to limited leg flexion).  The Board agreed that the evidence at both the MEB and C&P exams supports a 10% rating coded as either 5003 or coded with a ROM code IAW §4.59 (Painful motion), but not based on limitation of motion alone.  PFPS may be coded as 5299-5261 or 5299-5003 which are both are accepted analogous codes for PFPS.  The Board reviewed to see if a higher evaluation was achieved with any applicable coding, but there was no ankyloses, instability, symptomatic semilunar cartilage (meniscus) or impairment of the tibia, fibula, or femur to provide a higher evaluation.  The Board noted that the PEB’s reliance on the USAPDA pain policy was not detrimental to arriving at the highest rating and no change to the code is recommended.  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 adjudication for the left knee condition.

Right Knee Condition.  The NARSUM notes the CI was seen at multiple visits for right knee pain and X-rays were performed July 2005 (presumably normal but no report in the record).  The CI’s primary care manager during deployment verbally reported to the NARSUM examiner that the CI had been seen multiple times for knee pain while deployed, but there were no written notes.  Notes in the STR indicated the CI was advised the right knee pain was due to compensation for the left knee injury.  At a PT visit on 25 February 2005 the CI reported the knee pain was increased and graded it 3/10, aggravated by weight bearing activities or prolonged sitting.  On the exam there was medial JLT, with positive testing for meniscal injury, but no laxity or instability (therapist noted a “Lachman B but there is an end feel present”).  Right knee MRI on 3 June 2005 noted plantar fasciitis degenerative changes, mild effusion, and noted an ill-defined appearance of the ACL, which raised concern for a partial tear, but there was no meniscal damage.  At an orthopedic evaluation on 16 September 2005 the CI reported mild right knee pain with swelling after activity and “giving out” after prolonged walking or standing, with no change with PT and medications.  The orthopedic specialist noted mild medial JLT, with an otherwise normal exam with full painless ROM, normal strength and no evidence of instability, laxity, or cartilage injury.  The orthopedic assessment was that the knee was stable and there was no evidence of significant ligamentous or meniscal injury and continued conservative management was recommended.

At the MEB examination on 9 March 2007, 3 months prior to separation, the CI reported constant knee pain.  The MEB physical exam noted no swelling, effusion, JLT, instability or evidence of cartilage injury, but noted valgus laxity of the medial collateral ligament and the presence of a positive anterior drawer sign, but noted an end point.  Right knee ROM was extension of + 5 degrees and flexion of 120 degrees.  PT ROM for the MEB on 26 February 2007, repeated three times, noted extension of +5 degrees and flexion of 120, 130, and 130 degrees.

At the VA C&P examination on 26 February 2007, 4 months prior to separation, the CI reported daily bilateral knee pain, swelling, and instability, aggravated by weight bearing activities.  The exam of the right knee was normal and identical to the C&P exam of the left knee noted above, without evidence of instability or meniscal injury and full ROM with pain, and no additional loss of ROM with repetition.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the right knee condition 10%, coded 5257 (other knee impairment).  The VA rated the right knee 0%, coded 5299-5260 (analogous to limited leg flexion).  The Board agreed that the evidence at both the MEB and C&P exams supports a 10% rating with multiple §4.71a codes-either 5003 or coded with a ROM code IAW §4.59 (Painful motion), but not based on limitation of motion alone.  The Board reviewed to see if a higher evaluation was achieved with any applicable coding approach, but there was no ankyloses, symptomatic semilunar cartilage (meniscus) or impairment of the tibia, fibula, or femur to provide a higher evaluation.  The Board noted that the PEB cited a positive anterior drawer sign from the NARSUM exam and valgus laxity and used 5257 for other knee impairment.  However, PT evaluation 28 months prior to separation, noted a Lachman B stability test, which indicates some anterior movement with testing, but with an “end feel” or a firm end point, which is within normal and not considered evidence of instability.  The orthopedic specialist next found no evidence of laxity or instability 21 months prior to separation.  The NARSUM examiner then noted the same finding as the earlier PT exam of a positive anterior drawer test with an end feel, and the C&P exam, less than 2 weeks after the MEB exam, found no instability or laxity on exam.  Therefore, the Board concluded that neither additional rating of the right knee for instability nor primary rating for instability was supported by the evidence in record and preferred the ROM coding choice of the VA.  However, the Board noted that their coding choice did not result in a higher rating that that of the PEB and therefore, no change to the PEB’s code is recommended.  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 adjudication for the left knee condition.

Heat Injuries Condition.  The NARSUM notes the CI experienced heat injuries and was seen repeatedly during deployment for heat related issues as related verbally by her primary care manager to the NARSUM examiner.  A note in the STR by the primary care manager on 2 November 2006 documented the past events.  The CI reportedly had two heat injuries, the first in 2001, with a 103 degrees temperature and loss of consciousness (LOC) and the second in 2004 with 102 degrees temperature and LOC, with overnight observation for both incidents, with no evidence in record of any muscle or organ damage.  The CI reported nausea, vomiting, and lightheadedness from walking around in heat during deployment and she was placed on a night schedule to avoid heat exposure.  A note in the STR with the P3L3 profile for the MEB, dated 13 December 2006, 6 months prior to separation is excerpted here.

Pt. had difficulty with heat in OIF 4 when walking a ½ mile in heat or just waiting on the bus.  Pt. began to feel pre-syncopal, nausea, and visual flotters (sic). Pt started on nights to avoid heat.  Pt notes these sx’s with temperatures in the mid-80’s.

On the DD Form 2697, Report of Medical Assessment, the CI reported that she could not be exposed to warm temperatures without feeling nauseated and dizzy.  On the DD Form 2807, Report of Medical History, report of medical history the CI explained a yes response for “dizziness or fainting spells” on an additional page related to the two heat incidents and noted “continues to happen in warm + hot temps.”  The CI last passed a fitness test (APFT) on 6 December 2006.  At the MEB examination on 9 March 2007, 3 months prior to separation, the CI reported two heat injuries.  The MEB physical exam cited the DD Form 2808, Report of Medical Examination, which noted no residual abnormalities pertinent to the heat injuries.  At the VA C&P examination on 26 February 2007, 4 months prior to separation, the CI reported symptoms of dizziness, fainting, nausea, and vomiting in warm temperatures.  Full examination was normal.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the heat injury condition 0%, coded 7999-7900 (analogous to hyperthyroidism-analogous code for heat intolerance) IAW VASRD §4.119 (endocrine system) and the VA also rated it 0%, but coded 8999-8911 (analogous to minor seizure activity) IAW §4.124a (neurological conditions).  The Board considered that the primary care manager, who had cared for the CI’s during deployment, provided a permanent P3 profile with restriction of exposure to temperature greater than 80 degrees.  However, the Board reviewed the record for evidence of permanent residuals due to the heat injuries and found none.  The CI reported that she continued to have symptoms with exposure to temperatures above 80 degrees, which is not an unusual seasonal temperature in the region of the US where the CI was based following redeployment.  However there is no corroboration in the STR that following return the CI had any heat related symptoms requiring medical attention or that caused her to cease physical activity.  Therefore, Board consensus was that at separation there was no evidence of continued disability related to the heat injury condition and this was consistent with the 0% rating by the PEB, coded as 7999-7900.  The Board also considered if a higher evaluation was supported by the VA coding choice of 8999-8911, coding analogously to minor seizure activity.  However, the Board noted there was no history of any seizure activity at the time of the heat incidents, and as noted previously, no documentation of ongoing episodes once the CI was placed on night duty during deployment or after her return.  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 adjudication for the heat injury condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the IBS and TMJ conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

IBS Condition.  Remote notes in the STR indicate the CI had recurrent problems with indigestion and upper abdominal discomfort.  An undated primary care note indicated a diagnostic impression of IBS.  The CI was referred to a gastroenterologist (GI) and upper endoscopy on 15 November 2002 noted a mild hiatal hernia.  The NARSUM noted that based on the STR for the last two years there had been no significant problems due to GI symptoms.

TMJ Condition.  The CI had surgery for right TMJ dysfunction on 27 June 2003.  Notes in the STR indicate the CI reported problems with pain and swelling of the right TMJ, especially after cardio work-outs.  She was referred to the dental service and placed on profile and sent to PT.  A note on 14 February 2007 indicated the symptoms were much improved with therapy and no changes to treatment were recommended.

The IBS and TMJ conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  They were reviewed and considered by the Board.  There was no performance based evidence from the record that either of these conditions 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 IBS and TMJ conditions and so no additional disability ratings 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 the left knee condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matters of the right knee and left knee conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the heat injury condition and IAW VASRD §4.119 the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended IBS and TMJ conditions, the Board unanimously recommends no change from the PEB determinations 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 20131217, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD 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 XXXXXXXXXXXXXXXXXXXX, AR20150012751 (PD201302745)

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