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AF | PDBR | CY2012 | PD 2012 00836
Original file (PD 2012 00836.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2012-00836
BRANCH OF SERVICE: Army          BOARD DATE: 20140924
SEPARATION DATE: 20031117


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve SPC/E-4 (92G10/Food Service) medically separated for a knee condition. The knee could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The knee condition, characterized as “shrapnel injury to right knee,” was the only condition forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The Informal PEB found the right knee condition unfitting and rated it 10%, citing the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: “Still having pain and problems with my knee such as swelling and pain when I stand or exercise. I will be having surgery to remove the shrapnel July 11, 2012.”


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 rating for the unfitting knee condition is addressed below. No other conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions outside the Board’s defined scope of review may be eligible for consideration by the Board for Correction of Military Records.


 RATING COMPARISON :

Service IPEB – Dated 20030919
 VA - based on Service Treatment Records (STR)
Condition
 Code Rating Condition Code Rating Exam
Chronic Right Knee, due to Shrapnel Injury to Lateral Femoral Condyle 5099-5003 10% Shrapnel Wound, Right Knee Distal Femur, Lateral Condyle 5257-5255 10% STR
Other x 0 (Not in Scope)
 Other x 0 STR
Combined: 10%
 Combined: 10%
* Derived from VA Rating Decision ( VA RD ) dated 200xxxxx (most proximate to date of separation )


ANALYSIS SUMMARY: The Board acknowledges the CI’s information regarding the significant impairment with which her condition continues to burden her; but, must emphasize that the Disability Evaluation System has neither the role nor the authority to compensate 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 (VA), operating under a different set of laws. The Board considers VA evidence proximate to separation in arriving at its recommendations, but post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability present at the time of separation.

Right Knee. In March 2003, the CI’s right knee was hit by shrapnel from a mortar. She had multiple surgeries done on the knee, leaving the shrapnel in place. Due to persistent knee symptoms, a MEB was initiated. During the MEB physical examination dated on 
13 August 2003, the CI complained of right knee pain, swollen; reporting that her right knee was popping, felt to be giving way and was locking. During the physical examination of the right knee, the examiner noted that the right knee had slight effusion and noted some tenderness to palpation over the lateral kneecap. Her knee had full range-of-motion (ROM), but was tender with motion. The right lower extremity was neurovascular intact, with normal pulses and normal muscle strength. X-ray images of the right knee showed a small metallic foreign body in the lateral femoral condyle.

The CI was separated from service in November 2003 and approximately 3 years later on 20 September 2006; the CI had a VA Compensation and Pension (C&P) examination. The VA’s physical examination of the right knee revealed no swelling or tenderness, there was 100 degrees of flexion, with pain on motion. There was no additional limitation of motion with repetitive use and no lateral instability. Neurological exam was normal.

The Board carefully reviewed all available evidence and directs attention to its rating recommendation. The PEB and the VA chose different coding options for the knee condition, but both assigned a disability rating of 10%. The painful knee condition was essentially non-compensable based on the Veterans’ Administration Schedule for Rating Disabilities (VASRD) §4.71a diagnostic codes for loss of knee motion (5260 and 5261). However; IAW VASRD §4.40, §4.45 and §4.59, when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled. A 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint. There was no path to a rating higher than 10% for the right knee since there was no evidence of ligamentous instability, subluxation, or other significant joint abnormality. After due deliberation, the Board determined that a disability rating of 10% was appropriate. Considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board found insufficient cause to recommend a change in the PEB adjudication for the chronic unfitting right knee pain due to shrapnel injury.


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 noted above, PEB reliance on the USAPDA pain policy was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the right knee condition and IAW VASRD §4.40, §4.45, §4.59 and §4.71a; the Board unanimously recommends no change in the PEB adjudication. 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 20120615, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





                          
         XXXXXXXXXXXXXXX
         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 XXXXXXXXXXXXXXX , AR20150003607 (PD2012 0083 6)

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

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