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AF | PDBR | CY2012 | PD2012 01749
Original file (PD2012 01749.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:    BRANCH OF SERVICE: Army
CASE NUMBER: PD1201749   SEPARATION DATE: 20081213
BOARD DATE: 20130426


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (Trainee) medically separated for bilateral knee conditions. His knees were initially injured in 1998 while enlisted in the Air Force, and he had undergone a series of re-injuries and surgical interventions for both knees (all meniscal related) prior to his Army enlistment in March 2008 (with a waiver). He was unable to meet the physical rigors of initial Army training, however, because of recurrent bilateral knee pain; and, failed to respond adequately to further surgical and rehabilitative efforts. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB forwarded three separate diagnoses (designated as failing retention standards) for Physical Evaluation Board (PEB) adjudication: “internal derangement of knee medial meniscus, bilaterally,” “osteoarthritis of knees, bilaterally,” and “chondromalacia of patella, bilateral knees.” Two other conditions, lumbago and migraine headaches, were identified and forwarded by the MEB as meeting retention standards. The Informal PEB (IPEB) appropriately combined the separately submitted bilateral knee diagnoses and adjudicated “bilateral knee pain” as unfitting. Although the PEB’s DA Form 199 provided a bilateral 20% rating; it specified separate right and left ratings of 10% each (applying bilateral factor) and cited criteria of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The lumbar and headache conditions were determined to be not unfitting, and thus not ratable. The CI made no appeals, and was medically separated with a 20% combined disability rating.
CI CONTENTION: “On my PEB I was boarded for my knees, my back pain and migraine headaches. However, I was only given a rating on my knees. As a result, I received 20% without retirement. I was given severance pay. As a result of my injuries, I am unable to work. I am on social security disability.”


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 bilateral knee condition is addressed below. The contended lumbar spine and migraine conditions, which were determined to be not unfitting by the PEB, are likewise 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 contention for ratings of his lumbar and headache conditions which were determined to be not unfitting by the PEB; but, emphasizes that 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 specific duty requirements; a disability rating IAW the VASRD, and based on the degree of disability evidenced at separation, will be recommended. The Board further acknowledges the CI’s information regarding the significant impairment with which his service-connected conditions continue 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 20081024
 VA (6 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral Knee Pain
*10% R + 10% L w/ BLF		 5099-5003 20%* Residuals, Left Knee 5259 10% 20090602
Residuals, Right Knee 5260 10% 20090602
Lumbago Not Unfitting Mild DDD, Lumbosacral Spine 5242 10% 20090602
Migraine Headache Not Unfitting Migraines 8100 10% 20090602
No Additional MEB/PEB Entries
 Other x 1 20090605
Combined: 20%
 Combined: 40%
Derived from VA Rating Decision (VARD) dated 200 90625 ( most proximate to date of separation [DOS]).


ANALYSIS SUMMARY:

Bilateral Knee Condition: After his 1998 injury on active duty in the Air Force, the CI was identified with a meniscal injury and underwent arthroscopic intervention of his left knee in 2000; and, was medically separated for his left knee in December 2002. He subsequently re-injured his left knee while in the Air National Guard, and later injured his right knee in 2005 in his civilian job. By the time of his enlistment in the Army on March 18, 2008, he had undergone a total of 3 arthroscopic interventions for his left knee and 1 for his right knee; all for meniscal damage. The first entry in the service treatment record (STR) for knee complaints was 4 weeks after enlistment. He was seen consistently for left, right or bilateral knee pain after that; and, underwent arthroscopic debridement and meniscal repair of his right knee in July 2008 (his 5th and final surgery). A protracted trial of physical therapy and conservative management was unsuccessful, he was unable to complete required training (Warrior Transition Course), and he was referred for a MEB. The narrative summary (NARSUM) is excerpted below.
At this point, due to the extensive damage that has been done to his knees, service-member has difficulty kneeling, crawling, climbing, and running, which makes doing normal daily soldier tasks very difficult. He has been able to perform his desk duties and be a duty driver throughout his rehabilitation. He has pain when he walks greater than 20-30 minutes. ... He finds that kneeling, climbing, crawling, running, and extensive wall walking or standing makes his pain level increase.
The NARSUM physical exam noted equivalent findings for each knee: tenderness, positive patellar grind, no effusion, stability to varus/valgus/posterior stress, no signs of cartilage impingement, and mild laxity (Lachman 1A) of the anterior cruciate ligaments (ACL) (not functionally significant). Range-of-motion (ROM) measurements were 130 degrees flexion on the right and 125 degrees on the left (normal 140 degrees; minimum compensable 45 degrees). There was minimal hyperextension (3 degrees right, 2 degrees left). The NARSUM physical findings are corroborated by numerous other STR entries, which also confirmed a normal gait. At the VA Compensation and Pension (C&P) evaluation (6 months post-separation), the examiner elaborated only that the CI “continues to have pain and stiffness.” The VA physical exam noted a normal gait, and bilateral knee tenderness was the only positive finding. No instability, effusion, or signs of cartilage impingement were present. The VA ROM measurements were flexion 140 degrees right, 138 degrees left, and normal extension bilaterally (0 degrees); specifying the absence of painful motion.

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s bilateral 20% rating under the analogous code 5099-5003 (degenerative arthritis) is not technically accurate since no criteria for a rating higher than 10% (2 major joints without incapacitation) were met under that code; although, as noted, the PEB’s adjudication was de facto separate 10% ratings. The Board’s recommendations, IAW DoDI 6040.44, must comport strictly with the VASRD criteria. Thus conforming to separate ratings, there is no compensable ROM impairment for either knee; and, the evidence does not support the presence of significant ligamental laxity, locking or frequent effusions for either. There is therefore no VASRD §4.71a route to a rating higher than 10% for each knee under any applicable code, and no grounds for additional rating of instability. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends disability ratings of 10% each for the left and right knee conditions. The action officer recommended, and the Board concurred with, application of code 5259 (post-menisectomy, symptomatic) for its clinical specificity.
Contended Lumbar Spine and Migraine Conditions. The orthopedic consultant for the lumbar condition noted an onset of back pain in April, 2008. Imaging was obtained which demonstrated mild degenerative disc disease (DDD) at L4/5 and L5/S1. There was no clinical radiculopathy or neurologic deficits. The orthopedist opined that the CI was fit for duty. The neurology consultant evaluating the headache complaint noted an onset 2 months prior (~July 2008), although the VA examiner relayed a history that it had begun years ago during prior service with exposure to a grenade concussion on a training range. The neurologist documented a normal neurologic examination and opined that the CI was fit for duty. The headache was treated as needed with rescue medication (Imitrex), and no duty loss or prostrating episodes are documented.

The Board’s main charge with respect to these conditions is an assessment of the fairness of the PEB’s determinations that they were not unfitting. The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard. Neither of these conditions was profiled; neither was implicated in the commander’s statement; and, neither was judged to fail retention standards. Both were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that either condition 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 lumbar spine or migraine headache conditions; thus no 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. The Board did not surmise from the record or PEB ruling in this case that any such guidance outside the VASRD was employed; although, the service exercised a prerogative for combined knee ratings which did not technically comply with VASRD §4.71a and must be remedied by the Board. In the matter of the bilateral knee condition, the Board unanimously recommends that each joint be rated as separately unfitting at 10%, coded 5259, IAW VASRD §4.71a. In the matter of the contended lumbar spine and migraine headache 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 technically modified as follows, effective as of the date of his prior medical separation:

UNFITTING CONDITION
 VASRD CODE RATING
Surgical Residuals, Left Knee 5259 10%
Surgical Residuals, Right Knee 5259 10%
COMBINED (w/ BLF)
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20120728, 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 AR20130010305 (PD201201749)
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 description without modification of the combined rating or recharachterization 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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