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AF | PDBR | CY2013 | PD-2013-02209

Original file (PD-2013-02209.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX CASE: PD-2013-02209
BRANCH OF SERVICE: Army BOARD DATE: 20140813

SEPARATION DATE: 20081230

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard SSGT/E-6 (21B/Combat Engineer) medically separated for a bilateral knee condition. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty but he could perform an alternate physical fitness test. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The bilateral knee condition, characterized as “patellar chondromalacia,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. Six other conditions (hearing loss, familial hypertriglyceridemia, flat foot - severe asymptomatic, allergies, familial [bening essential] tremor, acquired deformity of toe [hammer toe]) were submitted by the MEB. The Informal PEB adjudicated “chronic knee pain due to chondromalacia” as unfitting, rated 20% (10% for each knee), citing criteria of the VA Schedule for Rating Disabilities (VASRD). The six additional conditions forwarded to the PEB were determined to be not unfitting. The CI made no appeals and was medically separated.

CI CONTENTION: “I believe that my rating is inaccurate because I feel that my paperwork was rushed. I was advised to pursue for a higher rating at time of discharge but because my unit failed to keep me on active duty while my PEB was being evaluated I took what I was awarded so I could be cleared to return to my civilian employer. Also why was I only evaluated for 2 of my 3 major injuries that incurred during my military career? I suffered a back injury while on National Guard duty on 10 July 2005 and feel that this should have also been part of my review.”

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. Additionally, the contended back condition was not implicated by the MEB or PEB and therefore 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 (BCMR).

The Board acknowledges the CI’s assertions that his disability disposition was rushed and incomplete. It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations. These issues may be addressed by the BCMR and/or the United States judiciary system

RATING COMPARISON :

Service IPEB – Dated 20081030	VA - (1 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Right Knee	5099-5003	10%	Right Knee DJD, s/p ACL Tear, Right Knee w/ Arthroscopic Scar	5010-5260	10%	20090106
Left Knee	5099-5003	10%	Left Knee Strain, w/DJD	5010-5260	10%	20090106
Other x 6 (Not in Scope)	Other x 4	20090106
Combined: 20%	Combined: 40%

Derived from VA Rating Decision (VA RD ) dated 20090603 ( most proximate to date of separation [ DOS ] ).

ANALYSIS SUMMARY:

Introduction Knee Conditions. A note in the service treatment record on 20 December 2003 indicated the CI had a long history of intermittent bilateral knee problems since 1996. According to the narrative summary (NARSUM) the CI experienced an acute bilateral knee injury on 16 November 2007 in the line of duty when he fell and landed on both knees with most weight on the right. Magnetic resonance imaging of the right knee on 4 February 2008 showed chondromalacia patella and a small effusion. Bilateral knee X-rays performed on 5 March 2008 noted degenerative joint disease (DJD) of both knee joints. The CI subsequently had right knee surgery that noted areas of torn cartilage (osteochondral defects) of the medial patella and adjacent femur. Following surgery the CI reported improvement in his symptoms, but continued to experience pain and buckling of the right knee, although less frequently. Multiple orthopedic follow-up visits noted that the right knee was stable and the surgeon noted that the reported buckling was likely due to pain as the ligaments were intact and stable at surgery. At orthopedic visits proximate to the MEB NARSUM the CI reported no significant pain and was not taking any medications, but reported that his knee was giving way. At the NARSUM evaluation, the CI reported having the same symptoms as the right knee in his left knee.

Chronic Right Knee Pain. At the MEB examination on 4 September 2008, approximately 4 months prior to separation, the CI reported pain and buckling of his knees; that he wore a knee brace and ace wraps on the right to help with stability and reduce buckling and, that he used a cane for assistance with ambulation. The MEB physical exam of the right knee noted minimal effusion with tenderness to palpation of the medial patella with positive patellar grind and crepitus. Range-of-motion (ROM) of the knee was 0 degrees to 125 degrees (normal 0 degrees to 140 degrees) and painful popping of the knee was noted with flexion. There was normal strength with no laxity or anterior instability (1-a Lachman’s – firm endpoint). Physical therapy (PT) ROM for the MEB one week later noted painful motion with flexion of 125 degrees and noted positive testing for anterior instability (2+ Lachman’s).

At the VA Compensation and Pension (C&P) exam performed a week after separation, the CI was noted to be using a cane and reported that he could not walk briskly because of his right knee. The examiner indicated there was a slight antalgic gait on the right, but the CI could walk adequately without difficulties and his limitation “is minimal today.” On examination right knee ROM was 2 degrees-110 degrees with pain and stiffness noted, with no swelling or evidence of cartilage injury. The examiner indicated “mild laxity” and a “mild Lachman’s,” with other testing for anterior instability negative (anterior drawer). The examiner indicated there was no pain with weight bearing or additional loss of ROM with repetitive motion of the right knee.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the chronic right knee condition 10%, coded 5099-5003 for painful motion IAW §4.59 and considered §4.10 (functional impairment) and §4.40 (functional loss). The VA rated the right knee 10%, coded 5010-5260 (limited flexion with traumatic arthritis). The Board considered that the evidence in record supports that the CI had painful, limited ROM with imaging evidence of DJD following right knee injury and surgery, without significant instability. The Board noted that the right knee ROM did not reach a compensable rating with ROM codes 5260 or 5261 (limited extension) but achieved a 10% rating IAW §4.59, which can be applied once for the knee joint. The Board reviewed to see if an evaluation higher than 10% was achieved with any applicable VASRD code IAW 4.71a. The Board noted that the evidence in record did not document any history of symptomatic semilunar cartilage injury of the right knee meeting a compensable rating under 5258 (symptomatic cartilage removal), 5259 (cartilage injury with frequent pain, effusion and locking). The Board further discussed if the evidence supported a rating for instability under 5257 (knee impairment). The VA examiner noted “mild” positive testing for anterior and lateral instability and PT noted positive testing for anterior instability. However, the Board noted the MEB examiner detected minimal movement with a firm endpoint when testing for instability, (findings not associated with ligament tears or disabling instability) consistent with repeated orthopedic evaluations in the service treatment record that noted no significant instability and there was no ligament injury noted at surgery. The Board also noted the surgeon’s assessment was that the reported “buckling” of the knee was likely secondary to pain. Therefore, the Board concluded that any noted instability was minimal and did not meet a compensable rating according to threshold 5257 criteria of mild knee instability with recurrent subluxation or lateral instability. There was no evidence in record of malunion of the femur, malunion or nonunion of the tibia or fibula, or instability or ankylosis of the knee or any other ratable impairment of the knee. Therefore, the Board agreed there was no path to a higher evaluation than 10%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic right knee condition.

Chronic Left Knee Pain. At the MEB examination, the CI reported pain and buckling of his knees. Left knee examination was the same as the right, except no effusion was present and physical therapy noted ROM of 0 degrees-130 degrees, without painful motion. At the VA C&P exam performed a week after separation the CI reported problems in the left knee due to compensation for his right knee. Left knee examination was full ROM with painful flexion, without instability or evidence of cartilage damage. The examiner indicated there was no pain with weight bearing or additional loss of ROM with repetitive motion of the left knee.

The Board directs attention to its rating recommendation based on the above evidence. The PEB rated the chronic left knee condition 10%, coded 5099-5003 for painful motion IAW §4.59 and in consideration of §4.10 (functional impairment) and §4.40 (functional loss). The VA rated the left knee 10%, coded 5010-5260. The Board considered that the evidence in record supports that the CI had full ROM noted to be painful at the MEB and C&P examinations, but not at the MEB PT evaluation, without instability, or any other ratable impairment of the knee as listed above. The Board noted that the left knee ROM did not reach a compensable rating with ROM codes 5260 or 5261(limited extension) and could only achieve a 10% rating IAW §4.59 for the knee joint. The Board reviewed to see if an evaluation higher than 10% was achieved with any applicable VASRD code IAW §4.71a but noted there was no evidence in record of left knee instability or symptomatic semilunar cartilage damage or any other ratable impairment as noted above at the time of separation for higher or additional disability rating. Therefore, the Board agreed there was no path to a higher evaluation than 10% for the left knee condition. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic left 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matters of the chronic right and left knee conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudications. There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION: The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131104, 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, AR20150002632 (PD201302209)

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 and hereby deny the individual’s application.
This decision is final. The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

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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AF | PDBR | CY2013 | PD-2013-02209

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