RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: xxxxxxxxxxxxxxxxxxx BRANCH OF SERVICE: AIR FORCE

CASE NUMBER: PD1100627 SEPARATION DATE: 20011209

BOARD DATE: 20120724

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-5 (3P051/Security Forces Journeyman), medically separated for patellofemoral pain, left knee. CI sustained a traumatic injury to his left knee in a terrorist attack on military barracks, Khobar Towers in Saudi Arabia, in 1996. A painful left knee condition developed which could not be adequately rehabilitated. The CI did not improve adequately with treatment to meet the physical requirements of his Air Force Specialty (AFS) or satisfy physical fitness standards. He was placed on light duty and referred for a Medical Evaluation Board (MEB). Anterior knee pain was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AFI 48-123. No other conditions appeared on the MEB submission. The PEB adjudicated the patellofemoral pain, left knee condition as unfitting, rated 10%, with application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated with a 10% disability rating.

CI CONTENTION: “Received injuries during Khobar Towers bombing, awarded Purple Heart for combat wounds. Injuries are as followed: shrapnel wounds to eyes, face, head, arms, hands, legs and damage to both knees. At the time, I did not claim sleep disorder. I have continuous dreams/nightmares of the bombing to include seeing those injured and the bodies of those killed. I also have problems dealing with loud noises, which makes me anxious and nervous all the time. One last item, the award percentage was based primary off my knees, which they medical boarded me at the time stating I can no longer perform my duties as a security policeman but than [sic] only gave me a 10% rating. Seems a little confusing to me as my military doctor referred me to a specialist in Oxford, England, who stated the damage was due to a torn meniscus and a slight dent on my knee cap. The Specialist wanted to operate but the USAF said no and referred me to Landstuhl, Germany, who disagreed with the local doctor. At the time, my wife and me thought the disability severance pay was the right route to take because it helped pay off bills. Since than [sic] both my wife and I have to wonder if I should have filed a disagreement to see if I was allowed to remain Active Duty in another career field or receive a higher rating. Also, my VA disability pay has been offset as the VA is withholding a certain amount until I have paid back the severance pay I was previous awarded through the USAF, which to date makes no sense to me.”

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in 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 ratings for unfitting conditions will be reviewed in all cases. In this case, Patellofemoral Pain, Left knee condition was identified by the PEB as unfitting. No other conditions were identified as unfitting. The remaining conditions rated by the VA at separation and listed on the DD Form 294 are not within the Board’s purview. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration the Air Force Board for the Correction of Military Records (BCMR).

RATING COMPARISON:

ANALYSIS SUMMARY: The Disability Evaluation System (DES) is responsible for maintaining a fit and vital fighting force. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short a service member’s career, and then only to the degree of severity present at the time of final disposition. The DES has neither the role nor the authority to compensate service members for anticipated future severity or potential complications of conditions resulting in medical separation nor for conditions determined to be service-connected by the Department of Veterans’ Affairs (DVA) but not determined to be unfitting by the PEB. However the DVA, operating under a different set of laws (Title 38, United States Code), is empowered to compensate all service-connected conditions and to periodically re-evaluate said conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment vary 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 separation. The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation. Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

Left Knee Condition. There were three goniometric range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Since sustaining the knee injury in 1996, the CI has been extensively treated with physical therapy, exercises, knee braces and anti-inflammatory medication. Magnetic resonance imaging (MRI) and X-ray studies have identified no anatomic injuries requiring surgery. In July 2001, 5 months prior to separation while on duty in England, CI was evaluated by a British orthopedic surgeon for continued knee pain. A history of intermittent swelling was reported. Examination revealed no ligamentous laxity, no locking, full ROM but a strong positive McMurry’s sign, suggestive of a tear in the meniscus. MRI of the knee showed a small knee effusion, but no evidence of cruciate or meniscus pathology. Arthroscopic evaluation was recommended. Follow up evaluation for second opinion, obtained with an orthopedic surgeon at Landstuhl Regional Medical Center, Germany, a month later and 4 months prior to separation, demonstrated negative McMurry’s sign and a stable knee. No indication for surgery was found and a plan of continued conservative treatment was undertaken. At the MEB exam, which is undated in the record, the CI reported knee pain with activity. On examination, full ROM and no findings of motor or neurologic weakness, ligamentous laxity or joint effusion (swelling) were noted. Infra- patellar tenderness was present anterior drawer sign (suggestive of cruciate ligament injury) and McMurry’s sign were negative. At the time of the VA Compensation and Pension (C&P) evaluation, approximately 3 months after separation, the CI was working as a telephone operator. He reported continued pain starting within 1 to 2 hours after standing any time on his feet. He received some relief with oral anti inflammatory medication. Findings recorded some laxity in both knees, but negative McMurry’s sign and no join line tenderness. Gait was described as a distinct limp on the left knee with wide base. CI was able to do heel and toe walking and descend and rise from squatting position.

The PEB and VA selected the same 10% disability rating using different codes. The PEB coded the condition analogous to arthritic pain under 5003. A 10% rating is warranted IAW VASARD §4.40, §4.45 and §4.59 given the documented painful motion of the left knee. The VA rated the condition under code 5257, impairment-slight, given the findings of some laxity in both knees on C&P examination. A higher rating (20% moderate) was not achievable given absence of history of recurrent subluxation or moderate lateral instability.

The Board directs attention to its rating recommendation based on the above evidence. The Board carefully reviewed all evidentiary information available and noted the left knee had full ROM on all evaluations and therefore failed to reach compensable levels of limitation of motion for VASRD codes 5260 and 5261 specific to the knee. The MEB evaluation, although undated in the record, references the orthopedic evaluation, performed 4 months prior to separation; and, therefore, occurred within 4 months of separation. The Board opined that the MEB and C&P evaluations occurred at a similar proximity to separation. On MEB evaluation no laxity or instability of the left knee was noted. On C&P evaluation slight laxity was recorded in both knees although this was not supported by X-ray or subsequent clinical findings (no joint tenderness, able to squat). The Board determined that the MEB exam had greater probative value than the VA exam because it was completed prior to separation. The Board also determined that if instability was present on the day of separation, there is no evidence that it was present at the moderate level. The Board was unable to ascertain any route to a rating higher than 10% or criteria for separate ratings of the knee under VASARD codes 5256, 5258, 5262 or any other applicable VASARD Code. 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 patellofemoral pain, left knee 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 patellofemoral pain, left knee condition, IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.

RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110809, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

President

Physical Disability Board of Review

SAF/MRB

1500 West Perimeter Road, Suite 3700

Joint Base Andrews MD 20762

Dear xxxxxxxxxxx:

Reference your application submitted under the provisions of DoDI 6040.44 (Title 10 U.S.C. §  1554a), PDBR Case Number PD-2011-00627

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate. Accordingly, the Board recommended no re-characterization or modification of your separation with severance pay.

I have carefully reviewed the evidence of record and the recommendation of the Board. I concur with that finding and their conclusion that re-characterization of your separation is not warranted. Accordingly, I accept their recommendation that your application be denied.

Sincerely,

Director

Air Force Review Boards Agency

Attachment:

Record of Proceedings