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AF | PDBR | CY2013 | PD-2013-02311
Original file (PD-2013-02311.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX  CASE: PD-2013-02311
BRANCH OF SERVICE: Army  BOARD DATE: 20141209
SEPARATION DATE: 20030707


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (95B/Military Police) medically separated for bilateral lower extremity (BLE) conditions. These conditions 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). The BLE conditions, characterized as “quadriceps tendinopathy” and “stress reaction tibia” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The Informal PEB adjudicated “bilateral knee pain with right greater than left chronic quadriceps tendon insertional pain,” and “bilateral leg pain consistent with posteromedial tibial stress reaction,” as unfitting, rated at 10%, with application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: “ When the problem was first diagnosed it was treated with surgery. Immediately following the surgery the condition still persisted and ten years later it has started to affect other parts of my body. I am still having dis c omfort in my knees as well as with my hips and feet. This is not allowing me to do my job properly do to the fact it limits my abilities. I would like a high rating then the rating that I have recieved. ”


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 ratings for the unfitting quadriceps tendonopathy and stress reaction tibia conditions are addressed below; and, no additional conditions are within the DoDI 6040.44 defined purview of the Board. The requested hip and feet conditions were not identified by the PEB, and thus are not within the DoDI 6040.44 defined purview of the Board.

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. 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.

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invalid font number 31502 RATING COMPARISON invalid font number 31502 : invalid font number 31502
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Service IPEB – Dated 20030307
 VA - (1.5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Bilateral K nee Pain w/R>L Chronic Quadriceps T endon Insertional Pain and Bilateral Leg Pain consistent with Posteromedial Tibial Stress R eaction 5099-5003 10% Right Patellar Enthesopathy 5257 0% 20030821
Left Patellar Enthesopathy 5257 0% 20030821
Scar, Right Knee 7805 0% 20030821
Right Posteromedial Tibial Stress Reaction 5299-526 2 NSC 20030821
Left Posteromedial Tibial Stress Reaction 5299-5262 NSC 20030821
Other x 0 (Not in Scope)
 Other x 0
Combined: 10%
 Combined: 0%
Derived from VA Rating Decision (VARD) dated 20030910 (most proxima te to date of separation)


ANALYSIS SUMMARY:

Bilateral Leg Condition. The narrative summary (NARSUM) and available service treatment record indicated that the CI had onset of “shin discomfort/knee discomfort” and numbness radiating to the feet in 2001. He developed bilateral pain in the upper patella (kneecap) region and imaging showed osteophytes (bony outgrowths) of both kneecaps. He had associated irritation/pain of the quadriceps tendon and degeneration of the cartilage (chondromalacia) of the right patella. He had surgical removal of the large osteophyte of the right knee (right quadriceps tendon insertion), but continued with pain of both knees and both tibias (shin bones), despite conservative treatment. X-rays of both lower legs (tibias) showed changes suggestive of mild stress injury. The NARSUM diagnosis was chronic quadriceps tendinopathy for both knees.

The commander’s statement indicated that the CI was scheduled for surgery on this left knee which was postponed since the surgery on the right knee did not help. “His condition caused his shins to swell and numbness in his feet while running. Moreover, (both) knees swelled which created great discomfort while performing normal duty activities.”

At the NARSUM exam (approximately 5 months prior to separation), both knees and lower extremities [presumably, ankles] had full range-of-motion (ROM), were neurovascular intact and were stable to stress testing in all planes (no laxity of the joints). There was tenderness to palpation and crepitation (grating sound or feeling) about the insertions of the quadriceps tendon on the superior poles of the patellas bilaterally. Minimal quadriceps muscle atrophy, above the knee, was noted. There was normal patella tracking and normal patella stability. There was no specific mention of the tibias.

At the VA C&P exam (approximately 2 months post-separation), the CI complained of (bilateral) knee pain, weakness, stiffness, swelling and “at times they give away.” The examiner noted a limp but did not observed weakness, of the lower extremities; there was painful extension of the right knee to 140 degrees (normal 140 degrees) and “full extension.” The left knee had flexion to 140 degrees and “full extension,” without any mention of pain. The ligaments of the knees were intact (without any laxity), and there were “no problems” with the medial and lateral meniscus. Ankle ROM was “no problem” and “good.” There was no specific mention of the tibias. The examiner noted that the right and left patellar enthesopathy (disorder of the tendon) had resolved. There was an 8 cm scar on the right knee, without any mention of pain or complications.

The Board directed attention to its rating recommendation based on the above evidence. The PEB combined the bilateral shin and bilateral knee conditions under a single disability rating, coded analogously to 5003. Although the Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints. The Board must follow suit (IAW DoDI 6040.44) if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating. If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB. The Board’s initial charge in this case was therefore directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.

The Board first considered whether both the right and left leg conditions were each reasonably unfitting for duty. The profile and commander’s statement indicated that both lower extremities (knees/tibias) had significant symptoms that affected his ability to perform his duties. Although only the right knee had surgery, the left knee was a surgical candidate with similar pathology. Board consensus was that each lower extremity condition was reasonably unfitting and given separate disability ratings if warranted by the VASRD.

There was significant disparity between the NARSUM and VA examinations with implications for the Board's rating recommendation. The Board deliberated the probative value of these conflicting evaluations and carefully reviewed the entire file for corroborating evidence proximate to separation. The VA exam documented improvement of the CI’s knee conditions with stated painful motion on the right, and no assessment of the tibias. The record documented bilateral tibial tenderness, bilateral knee crepitus and bilateral quadriceps atrophy and was more detailed and adjudged as having a higher probative value for rating.

Both tibias had abnormal imaging, tenderness, with knee crepitus, and thigh muscle atrophy that would warrant a 10% (slight knee impairment) rating for each tibia (and included knee) analogous to code 5262 (impairment of tibia and fibula) IAW VASRD §4.45 (the joints). The record did not support a moderate level of disability or knee instability on exam. After due deliberation and with deference to VASRD §4.3 (reasonable doubt), members agreed that the BLE condition, IAW VASRD §4.71a rating criteria and accepted principles for fitness determination, warrants recommendations for separate right and left disability ratings of 10% each.


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 the knee conditions was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the bilateral knee and tibia conditions, the Board unanimously recommends that each joint be separately rated as follows: an unfitting right knee and tibia condition coded 5099-5262 and rated 10%, and an unfitting left knee and tibia condition coded 5099-5262 and rated 10%, both 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
Right Knee Pain with Tibial … 5099-5262 10%
Left Knee Pain with Tibial … 5099-5262 10%
COMBINED (w/ BLF)
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131106, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record
        







                 
XXXXXXXXXXXXXXXXX
President
DoD 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
F or XXXXXXXXXXXXXXXXX , AR20150007053 (PD201302311)
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 20% 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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