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AF | PDBR | CY2013 | PD-2013-02155
Original file (PD-2013-02155.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02155
BRANCH OF SERVICE: Army  BOARD DATE: 20140618
SEPARATION DATE: 20070808


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SFC/E-7 (19K/Armor Crewman) medically separated for a right knee condition. The right knee condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. His profile allowed for an alternate aerobic event to satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The right knee condition, characterized as “traumatic arthritis, right knee status post multiple right knee operations,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “traumatic arthritis of the right knee…status post three arthroscopic repairs” as unfitting, rated 0%, with likely application of AR 635-40, B-29 ( no mechanical loss of motion ) and the VA Schedule for Rating Disabilities (VASRD). The CI made no appeals and was medically separated.


CI CONTENTION: “VA disability rating higher for condition which rendered unfit and additional rating for condition from VA.”


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. The conditions rated by the VA (posttraumatic stress disorder, lumbosacral strain, hearing loss of the left ear and right knee scar) were not identified by the PEB, and thus are not 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.


 RATING COMPARISON :

Service IPEB – Dated 20070608
 VA - (3 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Traumatic Arthritis Right Knee 5010 0% DJD, Right Knee, s/p multiple surgeries 5261 10% 20071106
Other x 0 (Not is Scope)
 Other x 5 20071117
20071024
Rating: 0%
 Combined Rating: 40%
Derived from VA Rating Decision (VA RD ) dated 200 71213 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY: 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 (DVA), operating under a different set of laws. The Board considers DVA evidence proximate to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. 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.

Right Knee Condition. The narrative summary (NARSUM) dated 30 April 2007 (3 months prior to separation) noted a long history of right knee problems with initial injury in 1999 and an arthroscopic partial meniscectomy. In 2002, he had a rupture of his anterior cruciate ligament with surgical reconstruction. He had a third surgery on 20 April 2007 (10 days prior to the NARSUM) for a fat pad excision and treatment of arthritic bone spurs and bony surface treatment. History indicated constant moderate knee pain with pain increased “to marked with activities such as walking. … He does get swelling in the knee,” and had no complaints of instability. The MEB physical exam noted “Full range of motion by goniometer,” with tenderness, moderate effusion and minimal patellar crepitus. There was no instability on testing (stable to varus-valgus stress; negative Lachman’s). The examiner stated that “range of motion of his hip causes no pain whatsoever,” without mentioning painful or pain-free knee motion. Radiographs showed evidence of arthritis with “significant hypertrophic bone spurs in his right knee with mild to moderate joint space narrowing in all three compartments.” The DD Form 2808 (MEB physical) dated 14 May 2007 noted right knee pain with squatting.

At the VA Compensation and Pension exam performed 3 months after separation, the CI reported a similar injury and surgical history. His symptoms included constant right knee pain and “It flares with walking more than a half mile, bicycle riding, kneeling, walking up and down stairs. If he does a great deal of activity, the knee will swell.” He was prescribed and was wearing an off loader brace. Exam documented no effusion or instability (negative McMurray and Lachman’s). There was painful motion limited to -2 degrees to 105 degrees (normal 0 degrees-140 degrees), with pain onset at 100 degrees. “Three repetitions of the knee joint did not change the measured range of motion because of pain, fatigue, weakness, incoordination or endurance.” Gait was documented as normal.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the knee at 0% as 5010 (arthritis, due to trauma, substantiated by X-ray findings), while the VA rated the knee at 10% as 5261 for limitation of extension, with narrative indicating the 10% based on functional limitation due to pain. The Board considered that the NARSUM exam was exceptionally to the date of surgery and demonstrated pathology of effusion (as well as a history of recurrent effusions into the joint) and crepitus (IAW VASRD §4.40 [functional loss] and §4.45 [the joints]). The MEB exam and the VA exam documented painful motion IAW VASRD §4.59 (painful motion). The preponderance of the evidence supported a 10% rating based on §4.59. Given that the CI had prior meniscal surgery, the Board also considered if there was sufficient evidence for a 20% rating under code 5258 (Cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint). There was no evidence of “locking” following surgical correction and insufficient evidence of the frequency of effusions into the knee to support that higher rating. The 10% rating under code 5259 (cartilage, semilunar, removal of, symptomatic) was an option, but includes painful motion so would offer no path towards a dual rating of the knee and no benefit to the CI. 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.


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 AR 635-40 for rating the knee condition was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5010 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
Traumatic Arthritis Right Knee 5010 10%
RATING 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131101, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record



                 
XXXXXXXXXXXXXXXXX
President
Physical Disability Board of Review


 SAMR-RB                                                                         


MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557


 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for XXXXXXXXXXXXXXXXX, AR20150002594 (PD201302155)
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                                                  XXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary of the Army
                                                      (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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