RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-01943
BRANCH OF SERVICE:  Army	BOARD DATE:  20141010
SEPARATION DATE:  20060822

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve SFC/E-7 (56M40/Chaplain Assistant) medically separated for left knee arthritis and hammer toes.  The knee and foot conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P2, L3 profile and referred for a Medical Evaluation Board (MEB).  The knee and foot conditions, characterized as “internal derangement of the left knee” and “hammer toes,” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (hyperlipidemia), as medically acceptable.  The Informal PEB adjudicated “tricompartment arthritis left knee” and “left digit 3 and 4 hammer toes, symptomatic” as unfitting, rated 0% and 0%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining condition was determined to be not unfitting.  The CI submitted a rebuttal but made no formal appeal and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 ratings for the unfitting knee and foot conditions are addressed below.  The requested hyperlipidemia condition, which was determined to be not unfitting by the PEB, is likewise addressed below; no additional conditions are within the DoDI 6040.44 defined purview of the Board.  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 20060612	VA - (7 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Tricompartment Arthritis Left Knee	5003	0%	DJD, S/P L Knee Injury 	5257	10%	20070323	
Hammer Toes	5282	0%	No VA Entry	
Hyperlipidemia	Not Unfitting	Hyperlipidemia	NSC	
Other x 0 (Not in Scope)	Other x 4	20070323	
Combined:  0%	Combined:  30%	
Derived from VA Rating Decision (VARD) dated 20070724 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:

Left Knee Condition.  Absent direct trauma, the CI was initially seen for left knee pain with “locking sensation” after physical fitness training in February 2004.  Initial X-rays revealed significant degenerative arthritis, joint effusion and a loose body.  On 4 August 2004, he underwent his first of three arthroscopic surgeries (over the next 9 months) for subsequent removal of loose bodies from the left knee joint.  Despite aggressive physical therapy (PT), his painful and limited left knee motion continued and he was referred for an MEB.  At the narrative summary (NARSUM) dated 8 May 2006 coupled with the examination performed on 5 April 2006, (4 months prior to separation) the CI endorsed continued left knee pain at a 5/10 pain scale.  Specifically stated, “Standing for more than five minutes caused pain to his feet and left knee.  He is able to climb 15-20 steps 4-5 times per day with no problem.”  The physical examination (PE) was brief and noted painful motion.  His pain was described as “frequent” with “minimal” intensity.  The diagnosis was internal derangement of the left knee.  His permanent profile implicated the same diagnosis and the commander’s statement clearly indicated that his physical limitations prevented him from performing his military duties.  His functional impairment was the inability to stand or walk for prolonged periods.  At the VA Compensation and Pension (C&P) examination, performed on 23 March 2007 (7 months after separation) the CI reported a constant sharp (4/10) left knee pain made worse with physical activity or prolonged standing or walking.  He endorsed the inability to “run or jog.”  He additionally stated, “The knee feels as if it will give out.”  At the time of pain he can function with anti-inflammatory medication.  The PE noted left knee tenderness, crepitus and painful limited motion.  Deluca criteria were positive for pain without deduction in range-of-motion (ROM).  There was no instability present upon provocative testing.  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)	PT ~ 10 Mo. Pre-Sep
(20051006) 	MEB ~ 3 Mo. Pre-Sep
(20060508) 	VA C&P ~ 7 Mo. Post-Sep
(20070323) 	
Flexion (140 Normal)	105	40 	120 	
Extension (0 Normal)	3	0	0	
Comment	painful motion	painful motion	painful motion	
§4.71a Rating	10%	20%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the knee at 0% using VASRD code 5003 (degenerative arthritis) citing ROM limited by pain.  The VA rating of 10% was under code 5257 (Knee; other impairment) citing degenerative joint disease.  The Board first considered the vast differences in the ROM during the 7 months depicted in the above charts.  In consideration of the multiple surgeries coupled with the extensive amount of radiographically identified arthritis, the dramatic decrease in ROM between the PT exam and MEB is medically plausible due to the build-up of scar tissue and post-surgical adhesions; however, the Board majority did not place exclusive probative value on the MEB examination, but rather was split between the PT and VA examinations based upon the lack of additional evidence in regards to recurrent interim injury or other adverse development resulting in the lowered MEB ROM.

Both probative examinations clearly indicated painful motion (§4.59) supporting a minimum of 10% rating in light of non-compensable ROM.  Absent persistent effusion, meniscal removal or instability from the probative exams, there was no route to an impairment rating higher than 10% for painful motion under §4.59.  Since the pathology also involved the femur, board members considered code 5255 (femur impairment) for a possible higher rating.  However, there was no long bone fracture, mal-union, or other coexistent pathology present which would merit additional rating for the knee condition under any other separate coding parameters.  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 left knee condition.

Hammer Toes.  The CI was seen for bilateral foot pain during 2005 and 2006 with varying diagnoses to include metatarsalgia, flat feet, and left foot Morton’s neuroma.  The service treatment record (STR) reflected rigid hammer toes to all toes except the big toe on both feet in May 2005.  The NARSUM exam (8 May 2006) “showed rigid hammer toe deformities to both feet.”  The VA C&P examination (23 March 2007) of both feet revealed no tenderness, painful motion, weakness, edema, atrophy or disturbed circulation.  The examiner stated, “Pes planus is not present.  Pes cavus is not present.  No hammer toes found on examination of the feet.  Morton's Metatarsalgia is not present.  There is no Hallux valgus present.  Hallux rigidus is not present.  He does not have any limitation with standing and walking.  He does not require any type of support with his shoes.”

The Board directed attention to its rating recommendation based on the above evidence.  The Board first acknowledged the vast difference in physical findings documented between the MEB and the VA examinations in regards to the “visual” presence of a hammer toe condition.  The specific unilateral code for hammer toe is 5282 with two ratings; 0% for single toe involvement and 10% for all toes.  Clearly, the STR and MEB identified hammer toes to both feet, but without involvement of “ALL” toes, the 10% rating level was not applicable.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3, the Board concluded that there was insufficient cause to recommend a change in the PEB’s determination for the hammer toe condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the hyperlipidemia was not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.

Hyperlipidemia.  A concurrent condition of this nature must itself be separately unfitting to merit additional rating.  The hyperlipidemia was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  The condition was reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the hyperlipidemia 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 hyperlipidemia condition and so no additional disability rating is 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 DoDI 1332.39 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 left knee condition, the Board majority recommends a disability rating of 10%, coded 5003 IAW VASRD §4.71a.  In the matter of the hammer toe condition, the Board unanimously recommends a disability rating of 0% each foot, coded 5282 IAW VASRD §4.71a.  In the matter of the contended hyperlipidemia 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 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	
Left Knee Condition 	5003	10%	
Hammer Toes, Left Foot	5282	0%	
Hammer Toes, Right Foot	5282	0%	
COMBINED (w/ BLF)	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140502, 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, AR20150006269 (PD201401943)

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 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						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						         (Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA