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AF | PDBR | CY2012 | PD2012 00667
Original file (PD2012 00667.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1200667
BRANCH OF SERVICE: Army  BOARD DATE: 20130404
SEPARATION DATE: 20030731


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSGT/E-6 (92G/Food Service) medically separated for right knee and right foot conditions. She initially injured her right knee from a fall in 1998. She suffered recurrent injuries and underwent a series of arthroscopic surgical interventions over her ensuing career; with both meniscal (cartilage) and ligamental injuries and repairs. Additionally, she required a bunionectomy of her right foot in 2001 and suffered residual post-operative pain. Neither condition could be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded the right knee and right foot conditions (specifying the surgical residuals of each) to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted. The PEB adjudicated the right knee condition as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD); and the right foot condition as unfitting, rated 0%, referencing the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated with a combined 10% disability rating.


CI CONTENTION: The CI elaborated no specific contention in her application.


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 right knee and right foot conditions are addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the respective Service Board for Correction of Military Records.


RATING COMPARISON:

Service IPEB – Dated 20030506
 VA (1 Mo. Pre Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Right Knee Pain
 5257 10% DJD/ Surgical Residuals, Right Knee 5260-5010 10% 20030624
Right Foot Pain
 5099-5003 0% Residuals, Right Bunionectomy 5280 10% 20030624
No Additional MEB/PEB Entries
 Other x7 20% 20030624
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VARD) dated 20030904 (most proximate to date of separation ( DOS ) )


ANALYSIS SUMMARY:

Right Knee Condition. The CI suffered multiple injuries to her right knee, ultimately requiring 4 separate arthroscopic surgical interventions. Her initial fall down stairs in March 1998 was met with persistent pain and effusion. She underwent arthroscopic exploration, and a subsequent anterior cruciate ligament (ACL) reconstruction. She re-injured her knee in June 1999, followed by persistent pain and conservative management; and, injured it again in February 2000. Arthroscopy at that time identified meniscal injury (debrided), but an intact ACL. She suffered a 4th injury in February 2002; and, underwent her final arthroscopic intervention in May 2002 (14 months prior to separation). That operative report identified a lateral meniscal tear, plica (scar tissue), chondral (articular bone) erosion, a “moderately lax” ACL graft, and intact posterior and collateral ligaments; and, documented meniscal repair, debridement, and plica release (no ACL intervention). She suffered her final injury (hyperextension) in March 2003 (4 months prior to separation); which was managed conservatively without success. There is no imaging evidence after the above arthroscopic findings which add any probative objective findings. The narrative summary (NARSUM), referencing the March injury above, stated, “Since that injury, the patient states that she has locking, swelling, and instability in her knee, which is not relieved with a brace or anti-inflammatory medications.” Limitations were listed for running, jumping, and prolonged marching or standing. The physical exam noted joint tenderness with no comment on effusion, a patellar grind, and a 1+ Lachman and a 1+ anterior drawer sign (both denoting mild anterior instability) “with a solid end point and no excessive laxity with varus/valgus [lateral/medial] stress.” The range-of-motion (ROM) cited was flexion of 120 degrees (normal 140 degrees) with pain at end range. At the VA Compensation and Pension (C&P) evaluation (a month prior to separation), the CI reported a baseline pain rated 5 out of 10 with exacerbations to 9-10 out of 10. No subjective locking, instability or effusions were documented in this exam. Limitations were prolonged standing and running. The VA physical exam documented a normal gait and mentioned no braces or assistive devices. The MEB goniometric findings (above) were referenced. The physical exam mirrored (i.e., identical; possibly substituted) that documented in the NARSUM.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 10% rating specified that it was for the residual mild laxity, thus the choice of code 5257 which permits a 10% rating for ‘slight’ instability. The VA’s 10% rating cited painful motion, since the ROM limitation itself was not compensable. The same evidence for instability as utilized by the PEB was cited in the VA rating decision, although no rating for instability was conferred. The Board considered the option of providing separate ratings for ROM limitation via §4.59 (painful motion) as per the VA, and for slight instability under 5257 as per the PEB. Members agreed, however, that this approach was not supported for the following reasons. The Board’s latitude for taking this approach (which is not provided for in the VASRD itself) is derived primarily from its established prerogative for complying with applicable VA rating guidance issued formally via “FAST” or Training Letters effective at the time of separation. The FAST guidance permitting dual rating for instability (Training Letter TL 04-22) was not issued until 1 October 2004 (post-separation). Although the VA General Counsel Opinion underpinning the FAST letter dates to 1997, DoDI 6040.44 only provides reference to US Court rulings. The FAST letter provides a grey area for interjecting §4.59 to achieve compensable ROM (equivocal), but the VA Counsel Opinion does not. This position is strengthened by the observation that the VA acknowledged the mild instability while not pursuing additional rating for it. Finally, it was agreed that the evidence for any significant contribution of instability to functional disability at separation was speculative at best. Without providing for separate ratings as above, the only route to a rating higher than 10% in this case is the 20% rating conferred by code 5258 (cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint). There was no mechanical locking or signs of cartilage impingement by exam, however, and no evidence that the subjectively reported locking was frequent or associated with effusion. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends disability rating of 10 % for the r ight k nee condition. The action officer recommended, and the Board concurred with, analogous rating under code 5299- 5259 for a symptomatic knee after meniscal surgery (the final surgery prior to separation ).

Right Foot Condition. The CI was diagnosed with plantar fasciitis and “hallux abductovalgus deformity [bunion], right foot” in 1999. She was treated conservatively with shoe inserts, and there are sporadic temporary profiles over the ensuing years. There are no clarifying entries in evidence prior to a right bunionectomy performed in August 2001. Other than a post-operative emergency room visit for pain, there are no outpatient entries for the condition following surgery. The NARSUM referenced the 2001 procedure and stated only, “She still has right foot pain secondary to this surgery.” The only physical finding was tenderness over the incision site, and normal ROM at the great toe was documented. At the pre-separation C&P evaluation, the CI reported constant pain rated 4-8 out of 10 aggravated by prolonged standing or squatting. The VA physical exam exactly mirrored the NARSUM exam. As mentioned for the knee, gait was normal.

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; and, no VASRD §4.71a foot codes which are applicable to this pathology specifically offer a 0% rating. Likewise no applicable code offers a rating higher than 10%. The most clinically applicable code for rating residuals of bunionectomy is that applied by the VA, 5280 (hallux valgus). This offers a 10% rating, either for ‘severe’ disability or metatarsal head resection. Since the metatarsal resection criteria is clearly not met, and ‘severe’ disability is not supported by the limitations in evidence; members deliberated whether a 0% rating under 5299-5280 should be recommended IAW VASRD §4.31 (a no-percent rating) , since 5280 is the best fit with the pathology and the minimum 10% criteria were not satisfied. IAW VASRD §4.7 (higher of two evaluations) , the bo ard considered analogous ratings under 5279 (m etatarsalgia ) yielding a 10% rating; under 5284 ( foot injury , other ) yielding a 10% rating for ‘moderate’ disability; or, under 5003 (degenerative arthritis) as per the PEB, but conceding VASRD §4.40 (functional loss) to achieve a 10% rating. After deliberation, Board consensus was that none of the alternative coding options were a satisfactory clinical fit in comparison to 5280; but , consensus was that the minimum compensable rating should be conceded under 5299-5280 IAW §4.40, since the evidence was clear that the condition prohibited prolonged standing and imposed occupational limitations. Considering the totality of the evidence and conceding reasonable doubt, the Board recommends a Service disability rating of 10% for the right foot condition ( 5299-5280).


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 right foot condition was operant in this case and it was adjudicated independently of that policy by the Board. In the matter of the right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5299- 5259 IAW VASRD §4.71a. In the matter of the right foot condition, the Board, by a 2:1 vote, recommends a disability rating of 10%, coded 5280 IAW VASRD §4.71a. The single voter for dissent (who recommended 5280 at 0%) did not elect to submit a minority opinion. 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 her prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Surgical Residuals, Right Knee
 5299- 5259 10%
Residuals of Bunionectomy, Right Foot
5280 10%
COMBINED
 20%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120604, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record




         Physical Disability Board of Review


 SFMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB),


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for AR20130009548 (PD201200667)
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                                                 
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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