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AF | PDBR | CY2012 | PD2012 01620
Original file (PD2012 01620.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201620   SEPARATION DATE: 20030601
BOARD DATE: 20130530


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SPC/E-4 (19D/Calvary Scout) medically separated for a bilateral knee condition. He initially injured his right knee in 1997, developed bilateral knee pain over time, and was subsequently diagnosed with bilateral retropatellar pain syndrome (RPS). The condition(s) could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Bilateral RPS “right greater than left” was forwarded as the sole condition to the Physical Evaluation Board (PEB) IAW AR 40-501. The PEB adjudicated bilateral RPS as unfitting, rated 0%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The CI made no appeals, and was medically separated.


CI CONTENTION: “My right knee injury was very severe. I am now facing a total knee replacement and this has affected any chance of making a living and or retraining. I would like the PDBR to look at my military medical records and re-adjudicate my medical separation to determine if I should rate a medical retirement. Thank you for your consideration.”


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(s) is addressed below. 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, 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.


RATING COMPARISON:

Service IPEB – Dated 20030211
 VA (11 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Knee Pain
 5099-5003 0% RPS, Right Knee 5257 10% 20040426
RPS, Left Knee 5257 Not Service Connected
Combined: 0%
 Combined: 10%
Derived from VA Rating Decision (VARD) dated 20040526 ( most proximate to date of separation [DOS]).



ANALYSIS SUMMARY:

Bilateral Knee Condition. The Service treatment record (STR) contains a July 1999 entry documenting an injury to the right knee from a fall off a military track vehicle the preceding month. There follows a series of STR entries documenting a continuing complaint of right knee pain, including a normal X-ray report. There is a civilian orthopedic entry from September 1998 noting a suspected meniscal injury which was confirmed by magnetic resonance imaging (MRI) and followed by an arthroscopic debridement (authorized civilian procedure) in October 1998. The CI suffered persistent pain and was referred back to care. A repeat MRI revealed normal post-surgical meniscal findings (all ligaments intact), and conservative treatment was continued. There follows a series of STR entries documenting continuing issues with the right knee, and a series of temporary profiles for the right knee. Until the narrative summary (NARSUM), there are no Service or civilian entries documenting left knee or bilateral knee pain. There are no STR entries specifying painful motion, gait disturbance, instability, effusion, or signs of cartilage impingement. A range-of-motion (ROM) evaluation for both knees was performed in December 2002 (7 months prior to separation) which recorded flexion of 145 degrees (normal 140 degrees) for each knee. A permanent profile for “bilateral knee pain right greater than left” was issued in January 2003 (5 months prior to separation). The NARSUM documented a complaint of “bilateral anterior knee pain, which he has had for several years.” It noted constant retropatellar pain (specifying right greater than left) rated 3-4 out of 10, with exacerbations to 8 out of 10 with standing, walking, sitting, squatting, or stair climbing. The physical exam noted patellar tenderness and grind (presumably bilateral) and “significant atrophy of his right quadriceps.” There was no effusion, laxity to stress maneuvers in all planes, or signs of cartilage impingement. The ROM was characterized as “full,” citing bilateral flexion to 130 degrees. At the VA Compensation and Pension evaluation (11 months post-separation), the CI was working “a nine hour shift standing on concrete.” He complained of bilateral knee pain, right greater than left, rated 4 out of 10 “good day” to 9-10 out of 10 “bad day” with “15 bad days per month.” The pain was aggravated by “running, stair climbing, and ladder climbing, kneeling, squatting, and repetitive flexion.” The only positive finding on the VA physical exam was “palpable crepitus with [ROM] maneuvers.” There were no instability or cartilage signs, and no comment on atrophy. The ROM measurements were flexion to 140 degrees bilaterally.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s DA Form 199 stated that its bilateral rating of 0% analogously to 5003 (degenerative arthritis) was justified by no loss of motion; although, even in the absence of limitation of motion, 5003 calls for a 10% rating for “2 or more major joints.” The VA’s 10% rating for the right knee under 5257 (recurrent subluxation or instability) is enigmatic, since the code is neither relevant to the pathology nor ratable from the evidence. The Board, IAW VASRD §4.7 (Higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications; although, separate fitness assessments must justify each disability rating. The evidence makes clear that the right knee was associated with significantly more disability than the left one in this case. The disparity was such that the question is raised of whether the left knee was reasonably justified as separately unfitting. The left knee was neither clinically identified nor profiled until MEB referral. The left knee was not service-connected by the VA because there was no evidence of injury or treatment. The well established principle for fitness determinations is that they are performance-based; and, members agreed that there was insufficient evidence in the STR for any significant interference of the left knee condition with the performance of duties. Deliberations then turned to the appropriate coding and rating recommendation for the unfitting right knee condition. There is no ROM limitation to support a compensable rating, and there is no definitive evidence for painful motion to achieve a 10% rating. Members agreed, however, that VASRD §4.40 (Functional loss) does provide support for the minimum 10% rating. Specifically §4.40 cites “evidence of disuse, either through atrophy ... or the like” as one of the criteria. The NARSUM examination conclusively established that such was the case for the right knee. It is incidentally noted that this criterion was not present for the left knee, thus the minimum rating could not be supported even if the left knee were conceded as separately unfitting. 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. The action officer recommended, and members concurred with, the code 5024 (tenosynovitis) for its clinical compatibility.


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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the Service-combined bilateral knee condition, the Board unanimously recommends a rating of 10% for an unfitting right knee condition coded 5024 IAW VASRD §4.71a; but, unanimously agrees the left knee condition was not separately unfitting and thereby not subject to disability rating. 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
Retropatellar Pain Syndrome, Right Knee
 5024 10%
Retropatellar Pain Syndrome, Left Knee
 Not Unfitting
COMBINED
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120713, 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 AR20130015092 (PD201201620)
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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