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AF | PDBR | CY2012 | PD2012 01094
Original file (PD2012 01094.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    CASE: PD1201094
BRANCH OF SERVICE: Army  BOARD DATE: 20130709
SEPARATION DATE: 20040514


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserve CPT/O-3 (35D/Military Intelligence Analyst) medically separated for a right knee condition. He suffered a meniscal injury in 2002, and did not respond adequately to surgical interventions to meet the requirements of his Military Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The knee condition, characterized as “right knee chondromalacia with patellar tracking misalignment”, was forwarded as the sole condition to the Physical Evaluation Board (PEB) IAW AR 40-501. The PEB adjudicated the right knee condition (specifying surgical residuals) as unfitting, rated 0%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and with possible application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: “The Department of Veterans Affairs discovered additional injuries not discovered in my medical board and involuntary separation process while on active duty in the US Army. This discovery and determination occurred within 12 months after involuntary separation. I served over ten years active and two reserve in the Army before the involuntary separation in 2004. I do not have the ability to maintain adequate healthy height and weight ratios due to three surgeries and pain.”


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 condition is 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 Board for Correction of Military Records.

The Board acknowledges the CI’s information regarding the significant impairment with which his service-connected condition continues to burden him 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, which operates under a different set of laws.


RATING COMPARISON :

Service PEB – Dated 20040331
 VA (7 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Right Knee Pain… 5099-5003 0% Residuals, Right Knee Surgery 5259 10% 20041217
No Additional MEB/PEB Entries
 Other x 14
Combined: 0%
 Combined: 10%
Derived from VA Rating Decision (VA RD ) dated 200 50514 .


ANALYSIS SUMMARY:

Right Knee Condition. The CI injured his right knee playing football during unit physical training in 2002. Subsequent imaging revealed a meniscal tear, which was arthroscopically debrided in December 2002. A second arthroscopic surgery ensued in June 2003 for ongoing pain and clicking, at which time chondromalacia (undersurface of the patella) was identified. A subsequent diagnosis of patella maltracking resulted in a third surgery (lateral release) in January 2004. There is no probative outpatient evidence between the last surgery and the evaluation from the narrative summary (NARSUM). The NARSUM stated, “He has not had any significant relief of his pain to this time. He is unable to run or perform any significant physical activities on the leg. He has been on profile for over two years. His pain is moderate and frequent.” The physical exam noted mild edema, peripatellar tenderness, and a patellar grind. The joint was stable to stress in both planes. The recorded range-of-motion (ROM) was flexion 140 degrees (normal) and normal extension (0 degrees). The VA Compensation and Pension exam, 7 months after separation, recorded “constant knee pains that are flared up by bending the knees or climbing stairs.” The VA physical exam noted a normal gait, surgical scars, a stable joint, and “no recurrent subluxation, locking pain, joint effusion or crepitus.” The ROM measurements were flexion 140 degrees/extension 0 degrees; DeLuca criteria were specified as negative; and, painful motion was not specified.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s 0% rating analogously to 5003 (degenerative arthritis) was accurate within the criteria of that code, barring concession to either VASRD §4.59 (painful motion) or §4.40 (functional loss). The VA rated under code 5259 (cartilage, semilunar, removal of, symptomatic), which confers a 10% rating without regards to further criteria. There is no evidence for compensable ROM impairment, ligamentous laxity, frequent effusions, or locking which would support a rating higher than 10% under any applicable code; or grounds for additional rating of instability. Members agreed that, although a 0% rating could be supported strictly under 5003 criteria, an argument for application of §4.40 to support the minimum 10% was supported by the functional loss referenced in the service treatment record and VA evidence. Furthermore, the code 5259 is readily justified by the pathology and clinical features of this case; and, IAW VASRD §4.7 (higher of two evaluations), is supported as favorable to rating. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 10% for the right knee condition under VASRD code 5259.


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 knee condition was possibly 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 5259 IAW VASRD §4.71a. 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:

UNFITTING CONDITION
 VASRD CODE RATING
Surgical Residuals, Right Knee 5259 10%
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120322, 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 AR20130018116 (PD201201094)
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 10% 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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