RECORD OF PROCEEDINGS 

PHYSICAL DISABILITY BOARD OF REVIEW 

 
NAME:  XXXXXXXXXXXXX                                                                   BRANCH OF SERVICE:  ARMY  
CASE NUMBER:  PD1200354                                                              SEPARATION DATE:  20061225 
BOARD DATE:  20130129 
 
 
SUMMARY  OF  CASE:    Data  extracted  from  the  available  evidence  of  record  reflects  that  this 
covered  individual  (CI)  was  an  active  duty  Soldier,  SSG/E-6(89D/Explosive  Ordnance  Disposal 
Specialist), medically separated for left knee pain.  The left knee pain could not be adequately 
rehabilitated nor did it improve adequately with treatment to meet the physical requirements 
of  his  Military  Occupational  Specialty  (MOS).    He  was  issued  a  permanent  L3  profile  and 
referred for a Medical Evaluation Board (MEB). The MEB forwarded chronic left knee pain and 
left  chondromalacia  patella  as  medically  unacceptable  IAW  AR  40-501.    Posttraumatic  stress 
disorder (PTSD), identified in the rating chart below, was also identified and forwarded by the 
MEB as meeting retention standards. The Informal Physical Evaluation Board (IPEB) adjudicated 
the left knee pain and some chondral softening as unfitting, rated 0%, with application of the 
Veterans Affairs Schedule for Rating Disabilities (VASRD) and likely application of the US Army 
Physical  Disability  Agency  (USAPDA)  pain  policy.    The  IPEB  adjudicated  the  PTSD  as  meeting 
medical retention standards. The CI appealed to the Formal PEB (FPEB) but withdrew his appeal 
and was medically separated with a 0% disability rating. 
 
 
CI CONTENTION:  The CI states: “(I) I should have been rated at more than 0% for my left knee 
condition.  The decision did not, as a matter of law, comport with the medical and factual issues 
related to my knee disability.  (2) I should have been medically retired and placed on the TDRL 
with a rating of 50% for Post-Traumatic Stress Disorder, Panic Disorder with Agoraphobia and 
Social Phobia.  I was first diagnosed with depression after my first deployment to Afghanistan in 
2002-03 and continued to receive both therapy and medication for this, as well as for PTSD and 
Panic Disorder with Agoraphobia and Social Phobia, until my final discharge on 12/25/06.  It 
was legal error not to make this a part of my MEB/PEB process and I firmly believe this was 
done intentionally. In that regard, whatever legal advice I had, or should have had, utterly failed 
to consider this gross error in my proceedings and I was, therefore, denied legal representation 
in violation of my rights pursuant to military regulations and the Due Process Clause of the Fifth 
Amendment of the U.S. Constitution.  Pursuant to the settlement agreement in Sabo v. United 
States,  I  am  entitled  to  this  rating,  despite  the  fact  that  PTSD  and  Panic  Disorder  with 
Agoraphobia and Social Phobia were not a part of my MEB/PEB proceedings.  Shortly after my 
discharge, I was rated at 30% for PTSD by the Department of Veterans Affairs that was made 
retroactive  to  the  day  after  my  discharge,  and  was  just  re-rated  at  50%.    The  fact  that  my 
discharge physical noted depression, and not PTSD and Panic Disorder with Agoraphobia and 
Social Phobia, was medically inexcusable and further violated my rights.  In regard to my left 
knee, it is factually and medically impossible to contend that my knee warranted a 0% rating 
when this condition prohibited me from virtually all activity requiring use of the left leg and 
knee, made it impossible for me to carry a combat load, run, do most exercises and resulted in 
a  permanent  profile.    This  condition  prohibited  me  from  maintaining  my  89D  MOS  as  an 
Explosive Ordnance Disposal Supervisor, or from returning to my other MOS, 11B.  The decision 
not to rate me, at least, at 10% for my left knee is insupportable, as a matter of law, and the 
medical  conclusion that  the  medical problems  that  are  well-documented  did  not  warrant,  at 
least, a 10% rating, was wrong.”   

 
 
SCOPE OF REVIEW:  The Board wishes to clarify that the scope of its review as defined in DoDI 
6040.44 (Enclosure 3, paragraph 5.e. (2) is limited to those conditions which were determined 
by the PEB to be specifically unfitting for continued military service; or, when requested by the 
CI, those condition(s) “identified but not determined to be unfitting by the PEB.”  The ratings 
for  unfitting  conditions  will  be  reviewed  in  all  cases.    The  PTSD  condition,  as  requested  for 
consideration,  meets  the  criteria  prescribed  in  DoDI  6040.44  for  Board  purview;  and,  is 
addressed below, in addition to a review of the rating for the unfitting left knee pain condition.  
The depression, panic disorder with agoraphobia, and social phobia conditions are not within 
the  Board’s  purview.    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 Army Board for Correction of Military Records.  
 
 
RATING COMPARISON:   
Service PEB – Dated 20060908 
Condition 
Left Knee Pain 
PTSD 
 
↓No Additional MEB/PEB Entries↓ 
 
Combined:  0% 

VA – All Effective Date 20061226 
Condition 
Left Knee Condition 
PTSD 

Code 
Rating 
5099-5003 
0% 
Meets 
Medical 
Retention Standards 

Code 
5299-5260 
9411 

Rating 
NSC 
30% 

Exam 
None 
PEB 
Proceedings 

None 

0% X 0 / Not Service-Connected x 3 

Combined:  30% 

 
 
ANALYSIS  SUMMARY:    The  Board  acknowledges  the  CI’s  assertions  that  an  intentional,  legal, 
and medically inexcusable error was made in omitting his complete psychiatric condition from 
the MEB/PEB process, thereby violating his rights, and that it was legally insupportable to rate 
his knee condition at less than 10%.  It is noted for the record that the Board has neither the 
jurisdiction nor authority to scrutinize or render opinions in reference to the CI’s statements in 
the  application  regarding  suspected  service  improprieties  in  the  processing  of  his  case.    The 
Board’s role is confined to the review of medical records and all evidence at hand to assess the 
fairness of PEB rating determinations, compared to VASRD standards, based on severity at the 
time of separation.  The Board further acknowledges the CI’s contention that suggests ratings 
should have been conferred for other conditions documented at the time of separation.  The 
Board wishes to clarify that it is subject to the same laws for service disability entitlements as 
those under which the Disability Evaluation System (DES) operates.  While the DES considers all 
of  the  member's  medical  conditions,  compensation  can  only  be  offered  for  those  medical 
conditions that cut short a member’s career, and then only to the degree of severity present at 
the  time  of  final  disposition.    However  the  Department  of  Veteran  Affairs  (DVA),  operating 
under a different set of laws (Title 38, United States Code), is empowered to compensate all 
service-connected conditions and to periodically reevaluate said conditions for the purpose of 
adjusting the Veteran’s disability rating should the degree of impairment vary over time. 
 
Left Knee Pain Condition.  The narrative summary (NARSUM) notes the CI sustained a left knee 
injury  in  2004.  He  continued  to  experience  pain  despite  activity  modification  and  physical 
therapy.    A  magnetic  resonance  imaging  (MRI)  study  in  May  2005  documented  all  knee 
ligaments to be intact and no definite evidence of a meniscal tear.  A subsequent arthroscopic 
evaluation  in  October  2005  revealed  minimal  patellofemoral  chondromalacia  and  chondral 
softening predominantly at the medial tibial plateau, but no discrete cartilaginous lesion was 

present.    Furthermore,  examination  under  anesthesia  showed  that  all  knee  ligaments  were 
intact.    He  continued  to  experience  pain  post-operatively.    An  outpatient  examination  on 
7 February  2006  noted  full  range-of-motion  (ROM),  a  moderately  tender  medial  joint  line, 
normal cruciate ligament stability and a negative McMurray test.  The NARSUM examination on 
28  April  2006  (8  months  prior  to  separation)  revealed  left  quadriceps  atrophy,  a  lack  of 
approximately 3 degrees of full extension, and flexion “well beyond 90 degrees.”  There was 
also  pain  with  patella  compression,  tenderness  to  palpation  of  the  left  medial  side  of  the 
patella, an antalgic gait, and an inability to swing to full extension prior to heel strike.  There 
were two goniometric 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.   
 

Left Knee ROM 
(in degrees) 
Flexion (140 Normal) 
Extension (0 Normal) 
Comment 
§4.71a Rating 

MEB/PT ~8 Mo. Pre-Sep 
135 
-1 
+Tenderness, 
atrophy 
10% 

quad 

VA  Treatment  Record  ~2  Mo. 
Post-Sep* 
130 
0 
+Painful  motion,  tenderness; 
quad atrophy 
10% 

                *Actual examination not in evidence, see below  

 
At  the  MEB  exam  on  9  May  2006  (7  months  prior  to  separation),  the  CI  reported  pain  with 
walking greater than 20 minutes, prolonged standing and sitting, and carrying heavy loads.  The 
MEB examination noted left knee tenderness at the medial joint line and a positive McMurrays.   
During an outpatient primary care clinic visit on 7 September 2006, the CI was observed to have 
a normal gait.  A follow-up visit on 5 December 2006 also recorded a normal gait, but pain in 
the left knee was noted to occur with hopping.  A VA Compensation and Pension rating decision 
on 5 June 2007 cited an orthopedic evaluation performed on 1 February 2007 (2 months after 
separation)  which  was  not  in  evidence.    The  exam  reportedly  demonstrated  1.5  cm  left  of 
quadriceps atrophy as compared to the right and ROM as reflected in the table.  There was also 
documented  pain  with  patellar  pressure.    The  rating  decision  cited  a  second  examination 
performed on 19 April 2007 (4 months after separation), also not in evidence.  This examiner 
reportedly  documented  that  the  CI  experienced  constant  dull  aching  pain  with  intermittent 
sharp  pain  in  the  left  knee  relieved  by  800  mg  of  ibuprofen.    Swelling,  redness,  locking  and 
buckling occurred 5-6 times per month and lasted for a couple of hours.  The condition did not 
have  any  effect  on  activities  of  daily  living  or  employment.    The  physical  examination  was 
significant for an obvious limp and inability to walk on the toes or heels.  There was no swelling, 
redness or crepitus.  ROM was 0-90 degrees with pain. 
 
The Board directs attention to its rating recommendation based on the above evidence.  The 
PEB  assigned  a  0%  rating  under  an  analogous  5003  code  (degenerative  arthritis)  with  likely 
application  of the  USAPDA  pain  policy.    The  VA  did  not  service-connect  the  left  knee.    Non-
compensable loss of ROM and chronic knee pain were consistent throughout the CI’s service 
and  VA  treatment  records.    The  non-compensable  loss  of  ROM,  chronic  knee  pain,  and  the 
arthroscopic findings of minimal chondromalacia and chondral softening are consistent with a 
10% rating IAW VASRD §4.71a.  A 10% rating was also justified on the basis of Painful motion 
(§4.59)  and  Functional  loss  (§4.40).    The  Board  considered  alternate  pathways  to  a  higher 
rating.  Under the 5257 code (knee, other impairment of) a higher rating is justified if moderate 
or  severe  ligamentous  instability  is  present.    However,  Board  members  agreed  that  the 
confirmation  of  ligament  integrity  by  MRI  and  the  documentation  of  ligament  stability  by 
examination  under  anesthesia  evidence  do  not support  an  instability  rating.    The  Board  also 

considered a higher rating under the 5258 code (dislocated semi-lunar cartilage).  Although one 
examiner  noted  a  positive  McMurray  test,  which  might  indicate  meniscal  pathology,  the 
absence of dislocated semi-lunar cartilage was strongly suggested by MRI, and proven by direct 
arthroscopic visualization.  Therefore, the only rating available under the 5258 code (20%) was 
not justified.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 
(Resolution  of  reasonable  doubt),  the  Board  recommends  a  disability  rating  of  10%  for  the 
chronic left knee pain condition, coded 5260-5014.   
Contended PEB Condition.  The contended condition  adjudicated as not unfitting by the PEB 
was PTSD.  Symptoms of PTSD first became apparent in December 2003.  After return from a 
deployment  in  2004,  the  first  available  mental  health  note  (23  March  2005)  stated  he  was 
“doing well” on medications.  In preparation for the PEB, a formal psychiatric evaluation was 
performed on 2 June 2006.  The examiner noted the current symptoms, documented a normal 
mental status exam and agreed with the diagnosis of PTSD.  The examiner stated that “(The CI) 
feels that his active duty performance has not been impacted.”  The examiner assigned a Global 
Assessment of Functioning of 65 (connoting mild symptoms or impairment), and affirmed that 
the  CI  was  receiving  appropriate  treatment,  was  able  to  fulfill  MOS  obligations  and  met  the 
psychiatric medical standards for retention IAW AR 40-501.  On this basis, the PEB adjudicated 
the  PTSD  condition  as  not  unfitting.    Outpatient  notes  leading  up  to  the  time  of  separation 
document  a  relative  stability  of  symptoms  prior  to  separation,  and  the  need  for  follow  up 
medication management.  A note on 7 September 2007 stated: “…when he is on the job he 
doesn’t  have  a  problem,”  and  also  referred  to  the  need  for  less  frequent  counseling  due  to 
fewer symptoms.  The Board’s first charge with respect to this condition 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 (Resolution of reasonable doubt) standard used 
for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” 
standard.    The  PTSD  condition  was  not  profiled;  it  was  not  implicated  in  the  commander’s 
statement;  and,  it  was  not  judged  to  fail  retention  standards.    All  evidence  of  record  was 
reviewed by the action officer and considered by the Board.  There was no indication from the 
record  that  the  PTSD  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 contended PTSD condition; and, therefore, 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.  As discussed above, PEB 
reliance on the USAPDA pain policy for rating left knee pain was operant in this case, and the 
condition was adjudicated independently of that policy by the Board.  In the matter of the left 
knee  pain  condition,  the  Board  unanimously  recommends  a  disability  rating  of  10%,  coded 
5260-5014, IAW VASRD §4.71a and §4.59.  In the matter of the contended PTSD condition, the 
Board unanimously recommends no change from the PEB determination 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, effective as of the date of his prior medical separation:   
 

UNFITTING CONDITION 

VASRD CODE  RATING 

Left Knee Pain 

5260-5014 
COMBINED 

10% 
10% 

 
 
 
 
 
 
 
 
The following documentary evidence was considered: 
 
Exhibit A.  DD Form 294, dated 20120226, w/atchs 
Exhibit B.  Service Treatment Record 
Exhibit C.  Department of Veterans’ Affairs Treatment Record 
 
 
 
 
 
 
 
 
 

 

           XXXXXXXXXXXXXXXXXXX, DAF 
           Director 
           Physical Disability Board of Review 

 
 
 

SFMR-RB 
 
 
 
 
MEMORANDUM FOR Commander, US Army Physical Disability Agency  
(TAPD-ZB / XXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557 
 
 
SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation  
for XXXXXXXXXXXXXXXXXX, AR20130002239 (PD201200354) 
 
 
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 
 
 
 

     XXXXXXXXXXXXXXXXXXX 
     Deputy Assistant Secretary 
         (Army Review Boards)