RECORD OF PROCEEDINGS

PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXX BRANCH OF SERVICE: Army

CASE NUMBER: PD1100635 SEPARATION DATE: 20070710

BOARD DATE: 20120601

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (15G, Aircraft Structural Repairer) medically separated for a left knee condition. He injured his knee in a duty-related fall in 2004. The pain was managed conservatively with temporary profiles, but did not resolve. Orthopedic evaluation in 2006 diagnosed patellar chondromalacia and maltracking, and an arthroscopic lateral release was performed. This intervention met with limited success; and, the knee could not be adequately rehabilitated to meet the physical requirements of the CI’s Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was consequently issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The left knee condition, characterized as “left anterior knee pain secondary to patellar maltracking and chondromalacia recalcitrant to arthroscopic lateral retinacular release,” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. Also addressed by the MEB and forwarded on the DA Form 3947 were obstructive sleep apnea (OSA), which was judged to fail retention standards; and “back pain,” which was judged to meet retention standards. The PEB adjudicated “osteoarthritis of the left knee” as unfitting, rated 0%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy. The remaining conditions were determined to be not unfitting. The CI made no appeals, and was medically separated with a 0% disability rating.

CI CONTENTION: “Knees have never been at 100% and my mental condition has gotten worst [sic]. My back with damage to it, including disc disease. VA medical records will show. Now i [sic] am on a walker also.” He does not elaborate further or specify a request for Board consideration of any additional conditions.

SCOPE OF REVIEW: The Board wishes to clarify that the scope of its review as defined in DoDI 6040.44 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.” Although the contention refers to “knees,” only the unfitting left knee condition is within this defined scope. The back condition, determined by the PEB to be not unfitting, was noted by the CI; and thus also falls within Board purview. The rating for the left knee condition, and the PEB’s fitness determination (and potential rating) for the back condition are therefore addressed below. The OSA condition, determined by the PEB to be not unfitting, was not noted in the application; and, the mental disorder noted in the application was not identified by the PEB; thus, neither meets the criteria prescribed in DoDI 6040.44 for Board purview. Those, or any other conditions or contention outside the Board’s defined scope of review, remain eligible for future consideration by the Army Board for the Correction of Military Records (ABCMR).

RATING COMPARISON:

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred conditions continue to burden him. The Board wishes to clarify that it is subject to the same laws for service disability entitlements as those under which the Disability Evaluation System (DES) operates. 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. That role and authority is granted by Congress to the Department of Veterans’ Affairs (DVA), operating under a different set of laws (Title 38, United States Code). The Board evaluates DVA evidence proximate to separation in arriving at its recommendations, but its authority resides in evaluating the fairness of service fitness decisions and rating determinations for disability at the time of separation. The Board further acknowledges the CI’s contention for service ratings for other conditions which arose in service, and notes that its recommendations in that regard must comply with the same governance. While the DES considers all of the service member's medical conditions, compensation can only be offered for those medical conditions that cut short the member’s service career, and then only to the degree of severity present at the time of final disposition. The DVA, however, is empowered to compensate 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.

Left Knee Condition. The CI fell from a truck while stationed in Korea in August 2004, landing directly on his left knee. Knee pain persisted and was exacerbated by a hyperextension injury during unit sports a few months later. He suffered pain, swelling and difficulty with weight bearing; and remained on a temporary profile for an extended period. The pain and physical limitations did not resolve with physical therapy (PT) and anti-inflammatories; and, he was referred to orthopedics in 2006. He was found to have patellar maltracking with a tight lateral retinaculum by exam; and, degenerative changes of the patella and meniscus by imaging. Arthroscopy performed in April 2006 identified chondromalacia of the posterior patella and adjacent tibial articular surface; and, a release of the lateral retinaculum with retropatellar debridement was performed (to restore normal patellar tracking). No gross meniscal damage was identified, and all ligaments were intact. Post-operatively, aggressive PT was initiated; but, met with little success; and, a joint injection effected only transient relief. The post-surgical course was well documented, and confirms that the procedure was ineffective in providing symptom relief or in restoring normal patellar glide and alignment. The MEB examiner documented a “constant dull ache in his knee” worsened by “prolonged sitting, standing and running.” The physical exam documented lateral patellar tenderness and abnormal patellar tracking. No effusion or edema was mentioned. The joint was stable to stress in all four planes. Range-of-motion (ROM) measurements were provided by PT, noting an average active flexion of 90⁰ (normal 140⁰; minimal compensable 45⁰) and 0⁰ extension (normal); with the comment “ROM limitations secondary to pain.” The VA Compensation and Pension (C&P) examination performed on the eve of separation provided a much more comprehensive history than that recorded in the MEB’s narrative summary (NARSUM). It documented a history of “locking” (non-mechanical) and frequent effusions persisting after surgery. There was significant pain; and “clicking, popping, and snapping” associated with patellar motion. The CI wore a custom brace for maintaining patellar alignment, and stated that his knee felt unstable without it. The VA examiner noted that time was spent each morning before the knee was loosened up enough to permit activities, and that walking was limited to short distances with frequent breaks. The examination noted abnormal gait and postural alignment attributed to the left knee; documenting “no effusion but … obvious extra-articular swelling [with a] very large puffy area around the patella;” tenderness of the patella and infrapatellar tendon with “a lot of pain” on patellar compression; and, a stable joint other than some minor lateral laxity. The recorded ROM measurements were 118⁰ of active flexion (with pain at 90⁰), and normal extension. Members agreed that the VA evaluation was significantly probative evidence; since it was more comprehensive and meticulous than the MEB or any other examination, and coincided temporally with the date of separation.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 0% rating was supported by the USAPDA pain policy; but, notwithstanding that the limitation of flexion was less than the compensable threshold, there was no concession to VASRD §4.59 (painful motion). The VA’s 10% rating invoked criteria both for §4.59 and §4.40 (functional loss); and, members agreed that either of these routes to the minimum compensable rating (10%) was supported by both the MEB and prior to separation VA evidence. Members then deliberated if a 20% rating could be recommended under the 5258 code. This would require its analogous application, since the code denotes “dislocated” cartilage; and, this was not in evidence, although there were meniscal findings on imaging. The degree of disability and description of symptoms in the VA C&P history proximate to separation; however, were closely aligned with the criteria cited in 5258; i.e., “frequent episodes of “locking,” pain, and effusion into the joint.” The action officer further opined that patellar instability could produce the same functional consequences as loose cartilage. Members concluded that this evidence did portray a close degree of similarity with the specific rating description under 5258; and, that the disability was therefore analogous to that rated by the code. Additionally considered was analogous rating to 5257 (recurrent subluxation of the knee); and, this would allow for a 30% rating were this judged to be “severe.” Members concluded however that, since the joint itself was stable (although clearly patellar subluxation was occurring); the higher rating could not be justified via this coding approach. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 20% for the left knee condition under the code 5299-5258.

Contended Lumbar Spine Condition. The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudication. 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 lumbar condition did not appear in the original NARSUM (20061219); but, was added in a subsequent addendum dated 3 months prior to separation. The totality of that entry is excerpted below.

He has also had some lower back pain which was felt to be secondary to his compensation in walking different from his left leg. This has been controlled with symptomatic medications. There have been no signs of radiculopathy or worsening symptoms.

The revised NARSUM did not incorporate a physical examination for the spine. A review of the service file revealed a single entry in a 2005 evaluation for thyroid disorder which listed “low back pain” in the systems review. There was found only a single clinical encounter directed at back pain. In a clinical note from January 2007 (6 months prior to separation), the CI reported back pain after he “fell coming down onto buttocks on stairs 3 days ago.” The note further stated, “he has had some mild back pain due to his constant limping from his knee pain, but worse since falling.” The physical exam noted some tenderness at the base of the spine; and painful, but “full” ROM. An x-ray showed no fracture, but “minimal narrowing of the L3-L4 disc space compatible with disc disease.” There is no evidence of record for a follow-up evaluation or continued treatment. The prior to separation VA C&P reported a history of a fall in 2006, which was presumably not incorporated into the treatment record. The limitations ascribed to the back by the VA examiner completely overlapped the limitations that would be inherent with the knee condition alone; so, it is difficult to draw any functional conclusions from the evidence. The VA lumbar ROM examination recorded a flexion of 52⁰ (normal 90⁰; consistent with 20% rating IAW VASRD §4.71a). Neurological findings were normal.

The lumbar spine condition was never profiled; the commander’s statement implicated only the knee condition as limiting performance; and, it was judged by the MEB to meet retention standards. The condition was reviewed by the action officer and considered by the Board. There was no indication from the record that it 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 lumbar spine condition; and, therefore, no additional disability rating can be recommended on this basis.

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 the Board. In the matter of the left knee condition, the Board unanimously recommends a disability rating of 20%, coded 5299-5258 IAW VASRD §4.71a. In the matter of the contended lumbar spine 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:

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20110815, w/atchs

Exhibit B. Service Treatment Record

Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXX

President

Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency

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

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation

for XXXXXXXXX, AR20120011846 (PD201100635)

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 to 20% 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 XXXXXXXXXXXX

Deputy Assistant Secretary

(Army Review Boards)

CF:

( ) DoD PDBR

( ) DVA