RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxx BRANCH OF SERVICE: ARMY

CASE NUMBER: PD1100129 SEPARATION date: 20060828

BOARD DATE: 20120105 tdrl entry date: 20050114

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (14T10, PATRIOT Launching Station Operator) medically separated for a left knee condition. The condition began as a result of a motor vehicle accident in 2003 and required multiple surgical interventions. He did not respond adequately to treatment and was unable to perform within his military occupational specialty (MOS) or meet physical fitness standards. He was issued a permanent L3 profile and underwent a Medical Evaluation Board (MEB). Left knee dislocation, popliteal artery injury, anterior and posterior cruciate ligament deficiency, and flexion contracture were forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Additional conditions supported in the Disability Evaluation System (DES) file are discussed below, but were not forwarded for PEB adjudication on the DA Form 3947. The Informal PEB (IPEB) placed the CI on the Temporary Disability Retired List (TDRL) on 14 January 2005 with ratings as reflected in the chart below. The final IPEB in 2006 adjudicated the left knee condition as unfitting, rated 20%. The CI made no appeals and was medically separated with a 20% disability rating.

CI CONTENTION: The CI states: “I have progress [Sic – progressive] arthritis and cannot have surgery which severely impacts my quality of life. I live with daily pain that requires medications.” He elaborates no specific contentions regarding rating or coding and mentions no additionally contended conditions.

RATING COMPARISON:

Final Service IPEB – Dated 20060725	VA** – All Effective Date 20050114
Condition	Code	Rating	Condition	Code	Rating	Exam
On TDRL – 20050114		TDRL	Sep.
Left Knee Instability	5257*	40%	20%	Left Knee Ligament Laxity	5257	10%***
				Left Knee Limited Extension	5261	10%
				Left Leg Sensory Loss	8621	10%
↓No Additional MEB/PEB Entries↓	Tinnitus	6260	10%	20050504
	0% x 1/Not Service Connected x 1	20050504
Combined: 20%	Combined: 30%

*Original PEB coded 5261 (leg, limitation of extension)

** VA rating based on exam most proximate to date of removal from TDRL.

***Increased to 20% effective 16 March 2010

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impact that his service-incurred conditions have had on his quality of life. However, the Services, by law, can only rate and compensate for those conditions that were found unfitting for continued military service at the time of separation. The ratings assigned to unfitting conditions are based on the severity of the conditions at the time of separation and placement on TDRL, and then at the time of removal from TDRL, and not based on possible future changes. The Department of Veterans' Affairs (DVA) however can rate and compensate all service connected conditions without regard to their impact on performance of military duties, including conditions developing after separation or permanent disability disposition, that are direct complications of a service connected condition. The VA can also increase or decrease ratings based on the changing severity of each condition over time. The Board’s role is confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on severity at the time of permanent disability disposition and removal from the TDRL. The Board’s relevant recommendations are assigned in assessment of the service’s permanent rating determination at the time of removal from the TDRL. The rating assignment at the time of initial placement on to the TDRL is not considered a benchmark. It is recognized that PEB’s across the services sometimes apply an overly generous initial rating in order to meet the DoD requirement of 30% disability for placement on TDRL. This is in the member’s best interest at the time and does not mean that a final lower rating is unfair, even if perceived as incongruent with subjective severity from one rating to the next. The Board must also judge the fairness of PEB fitness adjudications based on the fitness consequences of conditions as they existed at the time of separation and placement on the TDRL.

Left Knee Condition. The CI sustained a left knee dislocation with associated popliteal artery injury in a motor vehicle accident on 15 August 2003. Initial arterial bypass grafting and fasciotomies were followed by skin grafts and repeat vascular bypass surgery. According to the MEB narrative summary (NARSUM), he continued to complain of giving way, inability to completely extend the knee, pain, and instability, but declined surgical repair of the ligamentous injuries causing those symptoms. He used a soft knee brace as needed. He was able to walk eight miles per day, but could not run. He could ascend and descend stairs without much difficulty, but led exclusively with his right leg. There were two goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its pre-TDRL rating recommendation. Both of these exams are summarized in the chart below.

ROM – Left Knee	NARSUM ~ 3 Mo. Pre-TDRL	VA C&P ~ 4 Mo. After TDRL Start
Flexion (140⁰ normal)	145⁰	130⁰
Extension (0⁰ normal)	25⁰	10⁰
Comment	No painful motion	Constant pain
§4.71a Rating	40%	10%

The pre-TDRL MEB NARSUM examination (15 October 2004) reported a noticeable limp with the left leg in a flexed position. Neurovascular status distal to the knee was intact. There was a flexion contracture, but no significant knee tenderness or pain with motion. He had evidence of anterior and posterior instability, but no appreciable side-to-side laxity. Magnetic resonance imaging (MRI) showed rupture of both the anterior and posterior cruciate ligaments, and bruising of the tibia and femur about the knee joint. The VA compensation and pension (C&P) exam (4 May 2005) reported constant, minor left knee pain that worsened after standing for one hour or walking one half mile. Weakness and fatigue with walking were also reported. A mild limp was present, but a cane was not used. Anterior and posterior knee laxity was present, as well as medial knee tenderness and medial knee laxity. Strength of the knee extensors and flexors was diminished. Sensory loss along 16 inches of the anterior aspect of the left leg was detected. At the time the CI was placed on the TDRL, the PEB rated the CI’s knee at 40% under VASRD code 5261 (‘Leg, limitation of extension’). The concurrent VA decision assigned a dual code: 10% for knee laxity under code 5257 (‘knee, other impairment of’) and 10% for limited knee extension under code 5261. The disparity between the PEB and VA ratings under the 5261 code reflects the significantly improved extension by the time the VA rating exam was performed. While the 5261 code used by the PEB and VA was an appropriate choice given the findings of limited extension, and the PEB’s 40% rating was IAW §4.71a standards under that code, the Board also agrees that the instability noted in the CI’s history and on the NARSUM examination warranted an additional 20% rating under the 5257 code for instability. The Board acknowledges that the VA initially rated instability at 10%, but notes that this rating was subsequently increased to 20% based on a later examination that provided more specific detail regarding the degree of joint instability. The Board further considered if ratable peripheral nerve impairment was present. Although the NARSUM exam documented a normal neurovascular status, details were not provided. The C&P examiner recorded specific sensory loss of the leg consistent with saphenous nerve injury for which the VA assigned an additional 10% rating. The presence of functional impairment with a direct impact on fitness is the key determinant in the Board’s decision to recommend any condition for rating as additionally unfitting. While the CI may have experienced loss of sensation related to his injury, there is no evidence in this case of functional impairment attributable to the peripheral nerve condition. The Board therefore concludes that additional disability rating was not justified on this basis. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a combined 50% rating for the left knee condition at the time of initial placement on TDRL (40% coded 5261, and 20% coded 5257).

Next the Board turned its attention to a permanent rating at the time of removal from TDRL. The most proximate C&P exam, referred to above, was 15 months prior to permanent separation and therefore carried lower probative value in assessing a final rating. The TDRL reevaluation examiners (15 and 16 March 2006, five months prior to removal from TDRL) stated that the CI continued to have constant, throbbing left knee pain that was aggravated by any use or motion. Instability and pain required use of a metal-reinforced knee brace, but he was able to walk a few miles each day. Examination revealed use of a cane and presence of a limp. The distal limb was “neurovascularly intact” and a flexion contracture was present. The same findings of instability were present as were previously documented. Light touch sensation was noted to be intact. Although formal ROM measurements were performed by physical therapy and the assessment was full active range-of-motion, the specific measurements were not in evidence. The physical therapist also noted muscle loss of the left leg. X-rays were unremarkable. The NARSUM assessed that the knee condition was “stable” and that the prognosis was poor as long as surgery was not performed. The consulting orthopedist stated that the CI’s refusal to undergo operative intervention prevented his return to active duty. The PEB’s final separation rating of 20% was based on ‘moderate impairment’ under the 5257 code (instability). It was not clear if the US Army Physical Disability Agency (USAPDA) pain policy was applied by the PEB. Although the ROM by the TDRL re-evaluation examiners showed no compensable limitation, Board members considered if an additional 10% rating under §4.40 (functional loss) or §4.59 (painful motion) was warranted. After protracted deliberation, all Board members agreed that there was sufficient evidence in this case of pain with use to justify application of §4.40 under the code for limited extension. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a separation rating of 20% for left knee instability, coded 5257, and 10% for functional loss under the 5261 code, for a combined rating of 30% for the left knee condition.

Remaining Conditions. The other conditions identified in the DES file were left foot pain and left lower extremity scars. Neither of these conditions was clinically or occupationally significant during the MEB period, neither carried attached profiles nor was implicated in the commander’s statement. These conditions were reviewed by the action officer and considered by the Board. It was determined that neither could be argued as unfitting and subject to separation rating. Additionally tinnitus was noted in the VA rating decision proximal to separation, but was not documented in the DES file. The Board does not have the authority under DoDI 6040.44 to render fitness or rating recommendations for any conditions not considered by the DES.

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. In the matter of the left knee condition, the Board unanimously recommends an increase in the initial TDRL rating to 50% (40% for limitation of extension 5261, and 20% for instability 5257); and a permanent rating after removal from the TDRL of 20% coded 5257 and 10% coded 5261, for combined 30% IAW VASRD §4.71a. In the matter of the left leg sensory loss condition, the Board unanimously agrees that it cannot recommend a finding of unfit for additional rating at separation. In the matter of the painful left foot condition and left lower extremity scars or any other medical conditions eligible for Board consideration; the Board unanimously agrees that it cannot recommend any findings of unfit for additional rating at separation. The Board unanimously agrees that there were no other conditions eligible for Board consideration which could be recommended as additionally unfitting for rating at separation.

RECOMMENDATION: The Board recommends that the CI’s prior determination be modified as follows and that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of his prior medical separation.

UNFITTING CONDITION	VASRD CODE	TDRL RATING	PERMANENT RATING
Left Knee, limited extension	5261	40%	10%
Left Knee Instability	5257	20%	20%
COMBINED	50%	30%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110310, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans' Affairs Treatment Record

xxxxxxxxxx

President

Physical Disability Board of Review

DEPARTMENT OF THE ARMY

ARMY REVIEW BOARDS AGENCY

1901 SOUTH BELL STREET 2ND FLOOR

ARLINGTON, VA 22202-4508

27 JAN 2012

MEMORANDUM FOR Commander, US Army Physical Disability Agency

(TAPD-ZB I 2900 Crystal Drive, Suite 300, Arlington, VA 22202

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for AR20120000586 (PD201100129)

1. Under the authority of Title 10, United States Code, section 1554(a), I approve the

enclosed recommendation of the Department of Defense Physical Disability Board of

Review (DoD PDBR) pertaining to the individual named in the subject line above to

constructively place the individual on the Temporary Disability Retired List (TDRL) at

50% disability for six months effective the date of the individual's original medical

separation for disability with severance pay and then following this six month period

recharacterize the individual's separation as a permanent disability retirement with the

combined disability rating of 30%.

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:

a. Providing a correction to the individual's separation document showing that

the individual was separated by reason of temporary disability effective the date of the

original medical separation for disability with severance pay.

b. Providing orders showing that the individual was retired with permanent

disability effective the day following the six month TDRL period.

c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will

account for recoupment of severance pay, provide 50% retired pay for the constructive

temporary disability retired six month period effective the date of the individual's original

medical separation and then payment of permanent disability retired pay at 30%

effective the day following the constructive six month TDRL period.

d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP)

and medical TRICARE retiree options.

SFMR-RB

SUBJECT: Departmenl of Defense Physical Disabilily Board of Review Recommendalion

for AR20120000586 (PD2011 00129)

3. I requesllhal a copy of lhe corrections and any relaled 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:

(

Deputy Assistant Secretary

(Army Review Boards)

Encl

CF:

( ) 000 PDBR

( ) OVA