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AF | PDBR | CY2012 | PD 2012 00953

Original file (PD 2012 00953.rtf) Auto-classification: Approved

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX CASE : PD -20 12 - 00 953
BRANCH OF SERVICE: Army BOARD DATE: 201 4 0610

Separation Date: 20020416

SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (44B/Metal Worker) medically separated for bilateral knee pain and recurrent stress fracture of the right lower leg. After undergoing conservative treatment, the CI’s condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Bilateral knees: anterior knee pain syndrome and right tibia: recurrent stress fractures, characterized as not meeting retention standards, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded right knee anterior cruciate ligament (ACL) deficiency, mechanical low back pain (LBP), gastroesophageal reflux (GERD) and recurrent nasal congestion conditions, all meeting retention standards. The PEB adjudicated bilateral anterior knee pain syndrome as unfitting, rated 0% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy and recurrent stress fracture of right tibia as unfitting, rated 0% with application of the VA Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting. The CI made no appeals and was medically separated.

CI CONTENTION : “Because my knees have got worse, my lower back is worse, my feet have gotten worse, my left leg is swelling. I have ringing in my ears all the time, I still continue to getting rashes on the back of my thighs. Still have numbness in the front of my right knee after surgery on it.” The CI continued in block 15 of the DD294 application (remarks): “I don’t understand why 10% rating was taken from me for my knee but 10% was given to me for numbness. Reason I don’t understand is because my knees are no better they are worse.” (sic)

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 bilateral knee and right tibia conditions are addressed below. The requested lower back and right knee ACL deficiency conditions, which was were determined to be not unfitting by the PEB, are likewise addressed below. The requested ear, feet and rash conditions were not identified by the MEB/PEB and are not within the DoDI 6040.44 defined purview of the Board. The GERD and recurrent nasal congestion conditions, identified as not unfitting by the PEB, were not requested for review and are not within the Board’s purview. These, and any other condition or contention not requested in this application, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON :

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Service IPEB – Dated 20020304	VA* - based on Service Treatment Records (STR)
Condition	Code	Rating	Condition	Code	Rating	Exam
Bilateral Anterior Knee Pain Syndrome	5099-5003	0%	Left Retro Patellar Pain Syndrome (RPPS)	5260	10%	20020408
			Right RPPS with motion	5260	10%	20020408
Recurrent Stress Fracture of Right Tibia	5099-5022	0%	Bilateral Shin Splints s/p Right Distal Tibial Stress Fracture	5022	0%	20020408
Right Knee ACL Deficiency	Not Unfitting	Right Knee Mild Mediolateral Laxity	5257	0%	20020408
		Tender Surgical Scar, Right Knee…	7804	10%	20020408
Mechanical Low Back Pain	Not Unfitting	Lumbar Myofascial Pain	5292	10%	20020408
Other x 2 (Not in Scope)	Other x 8	20020408
Combined: 0%	Combined: 40% (Bilateral factor 5260; 5260; 5257)

* Derived from VA R ating Decision (VARD) dated 2009 0407 (in evidence )

ANALYSIS SUMMARY : The Board acknowledges the CI’s information regarding the significant impairment with which her service-connected 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, operating under a different set of laws. Post-separation evidence is probative to the Board’s recommendations only to the extent that it reasonably reflects the disability at the time of separation. The Board likewise acknowledges the CI’s implied contention for rating of her various conditions noted above which were determined to be not unfitting by the PEB and, emphasizes that the disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the VASRD and based on the degree of disability evidenced at separation, will be recommended.

The PEB rated the b ilateral a nterior k nee p ain s yndrome condition under the single analogous code 5099-5003 (a rthritis, degenerative for h ypertrophic or osteoarthritis). This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation. The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint are achieved IAW VASRD §4.71a. If the Board judges that two or more separate ratin gs are warranted in such cases, it must satisfy the requirement that each “unbundled” condition was reasonably justified as unfitting , in and of itself, with the caveat that the final recommendation may not produce a lower combine d rating than that of the PEB.

The Board first considered if the bilateral anterior knee pain syndrom e condition, having been de-coupled from the combined PEB adjudication, were each reasonably justified as independently unfitting. The CI complained of pain in both knees , together and at times separately, was well documented throughout the STR. Although t he evidence does not contain any profiles for a single joint , there were unilateral distinctions with regards to clinical features or fitness considerations. It is speculative to conclude that the disability confined to a single knee would have rendered the CI incapable of performing her MOS duties; but, with respect to the “reasonably justified” standard for making a separately unfitting recommendation of previously “bundled” joints, Board consensus was that there w as sufficient grounds for recommending separate right and left knee disability ratings in this case.

Bilateral Anterior Knee Pain Syndrome . There were three 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 .

Knee ROM (Degrees)	Ortho NARSUM ~ 4 Mo s Pre-Sep	MEB ~ 2 Mo s Pre-Sep	VA C&P 8 days P re S ep
	Left	Right	Left	Right	Left	Right
Flexion (140 Normal)	120	140	140	130	125
Extension (0 Normal)	0	0	0	0	0	0
Comment	Pos. tenderness around patellofemoral joint	Pos. tenderness patellofemoral joint with patella r grind; P os . Lachman ’ s & P ivot shift; Pos. laxity lateral collateral ligament	Pos. t enderness to palpation (TTP) joint line	Pos. grind; No laxity; S light effusion; TTP joint line ; No McMurray	Pos. painful motion; –pain in patellofemoral area R>L; Pos. crepitus; no instability
§4.71a Rating	10 %	10 %	10 %	10 %	10 %	10 %

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The CI had a long history of bilateral knee pain and was seen in 1989 , 1990 and 1992 for knee pain. The 1992 exam noted a history of bilateral RPPS. In 2000 , the CI presented to a cute c are for left knee pain for four days with limited weight bearing. The exam findings were pain in the interior aspect of and anteromedial knee. The examiner diagnosed strain overuse versus bursitis and wrote a temporary p rofile for 72 hours, prescribed a n on- s teroidal a nti -i nflammatory d rug (NSAID) and ordered ice to the left knee. The CI was seen for a 2- week history of bilateral knee pain and effusion without improvement . The physical exam findings were bilateral tenderness medial collateral ligament tenderness , no effusion. The examiner diagnosed bilateral knee strain and referred to p hysical t herapy (PT). The PT documented antalgic gait and tenderness to palpation ( TTP ) over both medial tibial plateaus with the left more painful than the right. An X -ray of both knees was normal. T he CI was given a permanent L3 p rofile for anterior knee pain and rec urrent tibial stress fracture.

The CI underwent an MOS Medical Retention Board on 14 November 2001 and a MEB was recommended. The initial MEB n arrative s ummary (NARSUM) exam approximately 4 months prior to separation documented bilateral anterior knee pain with persistent inability to walk or stand greater than 20 minutes without increasing pain despite over a year of PT, activity modifications and NSAID s . The MEB physical exam findings are summarized in the chart above. The c ommander’s s tatement noted that the CI was functionally limited in that she could not crouch, bend, squat, lift and lean to do physical movements associated with her MOS. The second MEB NARSUM exam approximately 2 months prior to separation documented that the CI was unable to squat, kneel or crawl due to pain and was unable to walk or stand for greater than 20 minutes without increasing pain and was unable to run more than one hundred yards. The MEB examiner referred to the exam results documented on the MEB DD Form 2808 which are summarized in the chart above.

The VA Compensation and Pension (C&P) exam approximately 8 days prior to separation documented that the CI had a flare-up of bilateral knee pain three to four times a month ; however , the pain was usually present all day long from morning until night and was aggravated by long distance walking, more tha n one half a mile, bending, stoo ping and any kind of exercise or going up and down stairs.

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the b ilateral a nterior k nee p ain s yndrome condition as 5099 analogous to 5003 (a rthritis, degenerative for hypertrophic or osteoarthritis) and rated at 0% with likely application of the USAPDA pain policy. The VA coded the l eft RPPS as 5260 (l eg, limitation of flexion of ) r ated at 10% with f lexion limited to 45 degrees and used the same coding and rating for the r ight RPPS condition. The Board deliberated whether to keep the knees bundled or unbundle the knee conditions as separately unfitting. The Board adjudged that the VA C&P exam was closer to separation ( 8 days prior to separation ) and therefore had the higher probative value. The C&P exam’s ROM’s demonstrated that both knees had pain limited flexion ; however , the right knee (125 degrees) was more limited that the left (130 degrees). All exams met the 10% criteria rating for both the right and left knee with application of VASRD §4.10 (f unctional impairment ) , §4.40 (f unctional loss ) and §4.59 ( painful motion ) . After due deliberation in consideration of the totality of the evidence, the Board concluded that the r ight and l eft a nterior k nee p ain s yndrome conditions were each reasonably justified as unfitting. Considering all of the evidence and mindful of VASRD §4.3 (r easonable doubt ) , the Board recommends a disability rating of 10% coded 5099-5003 IAW VASRD §4.71a for the l eft a nterior k nee p ain s yndrome and 10% coded 5099-5003 IAW VASRD §4.71a for the r ight a nterior k nee p ain s yndrome.

Recurrent Stress Fracture of Right Tibia . The CI was initially seen for the right shin splint pain on 9 Mar ch 1990 with exam findings of marked tenderness of the tibia mid-way of the shaft. She was seen in follow-up 2 weeks later and reported marked pain walking up and down stairs and with running. The examiner documented an antalgic gait with pain in the tibia with foot dorsiflexion and resisted inversion and TTP of the medial tibial border. The CI was given shoe inserts and pads by PT to reduce the pain from the shin splints. The CI continued with right tibia shin splints and a b one s can demonstrated focal hot uptake at the medial tibial plateau consistent with a stress fracture. The CI was followed by PT for medial tibial plateau pain and tenderness with activity modification, ice and crutches. A repeat b one s can demonstrated bilateral shin splints and a right distal tibia stress fracture. The CI was given a permanent L3 p rofile for anterior knee pain and recurrent tibial stress fracture. The initial MEB NARSUM exam documented increased right lower leg pain with walking, standing, running or any activity. The physical exam findings demonstrated significant tenderness along the anterior medial tibia, along the distal one third of the tibial shaft. The c ommander’s s tatement noted that the CI was functionally limited in that she could not crouch, bend, squat, lift, lean to do physical movements associated with her MOS and that she had a noticeable limp. The second MEB NARSUM exam documented that the CI was unable to squat, kneel, or crawl due to pain and was unable to walk or stand for greater than 20 minutes without increasing pain and was unable to run more than one hundred yards. The MEB examiner referred to the exam results documented on the MEB DD Form 2808 which indicated TTP over the right shin and TTP over the right lateral malle olus and talofibular ligament.

The VA C&P exam documented that was any type of stress applied to the right lower extremity would result in pain. The CI endured daily pain which was 3/10 with flare-ups that occurred three to four times per month. At the time of this exam, the CI was not running or jogging due to the significant pain from the stress fracture residuals. The physical exam findings demonstrated a diffused dull tenderness over the tibia stress fr acture areas rated 3/10.

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the r ecurrent s tress fracture of right t ibia condition as 5099 analogous to 5022 (p eriostitis ), which is rated on limitation of motion of affected parts under 5003 , rated at 0 %. The VA coded the bilateral shin splints status post right distal tibial stress fracture as 5022 and rated at 0% based on the C&P exam. The CI was given a permanent L3 profile for recurrent tibial stress fracture and the PEB adjudicated that the recurrent stress fracture condition was unfitting due to “…functional limitations…” and meets the intent for VASRD 4.40 (functional loss). There was X-ray evidence (bone scan data) of abnormality at a site far removed from the knee area thus removing the consideration of VASRD principle §4.14 (avoidance of pyramiding). After due deliberation, considering all of the evidence and mindful of VASRD §4.3, the Board recommends a disability rating of 10 % for the r ecurrent s tress fracture of r ight t ibia condition.

Contended PEB Conditions. The contended conditions adjudicated as not unfitting by the PEB were r ight k nee ACL d eficiency and m echanical LBP . The Board’s first charge with respect to these conditions is an assessment of the appropriateness of the PEB’s fitness adjudications. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations and requires a preponderance of evidence. The second MEB exam specifically documented that the CI reported that although she had occasional mild LBP , this did not prevent her from performing her duties.

The VA C&P examiner documented that there was no ACL or posterior cruciate ligament deficiency noted by performing various ligamentous specific testing. There was no instability detected during this battery of orthopedic testing. None of these conditions were profiled; none were implicated in the c ommander’s s tatement and none were judged to fail retention standards. All were reviewed by the a ction o fficer and considered by the Board. There was no indication from the record that any of these conditions 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 right knee ACL deficiency and mechanical LBP . N o additional disability ratings can be 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 likely reliance on the USAPDA pain policy for rating the bilateral anterior knee pain syndrome condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the bilateral anterior knee pain syndrome condition, the Board , by a split 2:1 vote, recommends a separate disability rating of 10% for each knee , cod ed 5099-5003 IAW VASRD §4.71a. In the matter of the recurrent stress fracture of right tibia condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5022 IAW VASRD §4.71a. In the matter of the contended right knee ACL deficiency and mechanical LBP conditions, the Board unanimously recommends no change from the PEB determinations 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; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

UNFITTING CONDITION	VASRD CODE	RATING
Right Anterior Knee Pain Syndrome	5099-5003	10%
Left Anterior Knee Pain Syndrome	5099-5003	10%
Recurrent Stress Fx of Right Tibia	5099-5022	10%
COMBINED (w/ BLF)	30%

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The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20 120505 , w/atchs
Exhib it 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 , AR20140020542 (PD201200953)

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 recharacterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.

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 permanent disability retirement 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 date of the original medical separation for disability with severance pay.

         c. Adjusting pay and allowances accordingly. Pay and allowance adjustment will account for recoupment of severance pay,] and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

         d. Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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                                                  XXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR

( ) DVA

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AF | PDBR | CY2012 | PD 2012 00953

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