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AF | PDBR | CY2013 | PD-2013-02776
Original file (PD-2013-02776.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXX    CASE: PD-2013-02776    
BRANCH OF SERVICE: Army  BOARD DATE: 20150129
SEPARATION DATE: 20070716                


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-3 (Infantryman) medically separated for chronic right knee pain. The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The chronic right knee pain condition, characterized as “right knee mild cartilaginous partial thickness defect in the lateral facet of the patella” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition. The informal PEB adjudicated “chronic right knee pain” as unfitting, rated 0%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy. The remaining conditions were determined to be not unfitting . The CI made no appeals, and was medically separated with a 0% Service disability rating.


CI CONTENTION: “Knee has gotten worse (please consider all conditions) hearing worse, stomach much worse” [sic]


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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting. Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records. Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate. The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation. The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions. That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws. The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.


RATING COMPARISON :

Service IPEB – Dated 20070423
 VA - (1 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Right Knee Pain 5099-5003 0% Right Knee Patellofemoral Syndrome, Chronic Right Knee Pain 5260 10% 20070823
Pes Planus Not Unfitting Bilateral Pes Planus 5276 NSC 20070823
Other x 0 (Not in Scope)
 Other x 4
Combined: 0%
 Combined: 10%
Derived from VA Rating Decision (VA RD ) dated 200 80415 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Chronic Right Knee Pain Condition. The earliest entry in the service treatment record is a radiology report dated 18 October 2006, which was performed for chronic right knee pain that was normal. An MRI dated 18 November 2006 was requested for “persistent anterior knee pain since August 2005” and “a possible cartilage injury” demonstrated edema of the pre-patellar (in front of the kneecap) soft tissues and Hoffa’s fat (situated under and behind the knee cap) and a mild cartilaginous partial thickness defect in the outer portion of the knee cap suggesting trauma, bursitis, or cellulitis. An Urgent Care note of 26 September 2006 indicated full range-of-motion (ROM) with some pain and tenderness of the patella (knee cap). Examination on 27 November 2006 revealed crepitus (grinding) of the patella with a grating sensation and tenderness to palpation with pain on motion and a normal range of motion (ROM). There was also “misalignment about the patella with abnormal appearance and lateral drift.” The diagnosis of a patellofemoral syndrome was made and an intra-articular (into the joint) steroid injection was given and nonsteroidal anti-inflammatory medication was prescribed. A follow-up examination noted a soft localized area of swelling around the front of the knee joint. Strength was 4/5 with flexion and extension and no laxity was evident. A compression knee sleeve was prescribed along with the anti-inflammatory medication. The knee pain was not relieved with the sleeve, although swelling was decreased. The CI was issued a permanent L3 profile for his right knee injury with limitations of no marching, running, jumping or kneeling on 20 December 2006. The commander’s statement dated 9 February 2007 indicated the CI injured his right knee in basic training during a road march in December 2005 and did not seek care at that time. He again injured his knee in March 2006 during a physical training event. “Despite serving with a very limited profile . . . [and] of aggressive physical therapy,” the CI “has not recovered from his injury.”

At the MEB exam 7 January 2007, the CI reported he had bursitis of the knee and was “not able to do any physical activities.” The MEB physical exam noted an antalgic gait with a toe/heel walk and an abnormal gait on regular walk. The MEB narrative summary (NARSUM) dated 29 March 2007 noted pain began gradually in 2005 during basic training, but the CI received no treatment at that time. He did, however, undergo evaluation and receive treatment at his next duty station with steroid injections and physical therapy, but without improvement. The CI reported pain anterior and posterior to the patella that was sharp with an intensity of 10/10 (10 being the worst) to 7/10 at the best where it regularly remained. For three months prior to the NARSUM examination the CI experienced nighttime awakenings and swelling of the knee, if active. A focused physical examination of the right knee revealed no edema, erythema or crepitus with some tenderness of the peri-patellar areas, no instability, and a positive McMurray’s test (to evaluate for tears in the meniscus (cartilage) of the knee). The examiner noted: “A very non-anatomical antalgic gait, actually exaggerating the flexion, and bearing more weight on the R knee, not guarding.” “He [the CI] performed a modified MOS at the gym.”
At the VA Compensation and Pension (C&P) examination dated 23 August 2007, performed one month after separation, the CI reported pain of the knee with a 7/10 severity, which is “behind the knee and goes down the front side of right leg to the top of the foot.” He noted intermittent swelling when standing all day. He denied redness, heat, giving way or locking. Hydrocodone/acetaminophen (a narcotic/pain relieving medication) eased the pain temporarily but caused drowsiness. Over-the-counter Tylenol (acetaminophen) and Motrin (nonsteroidal anti-inflammatory medication) did not help. The CI wore a hinged knee brace and shoe inserts, which also did not help the pain. The examiner noted a questionable small effusion below the kneecap and tenderness above it. No crepitus was noted and there was no instability, weakness or incoordination. He opined that “[t]he level of pain that veteran is complaining of and the decreased range of motion does not correspond to the MRI or x-ray findings.” An addendum dated 10 September 2007 added the x-ray results of the right knee, which demonstrated a normal right knee series and an MRI results that noted no ligament or meniscal tear and less than sub cm (less than a centimeter) posterior synovial cysts of doubtful clinical significance. On 28 November 2007, 4 months post-separation, the CI received intramuscular (IM) Toradol (ketorolac) (a nonsteroidal anti-inflammatory pain medication) for the knee pain.

The Board directed attention to its rating recommendation based on the above evidence. The PEB applied a 0% rating using code 5099-5003 for chronic right knee pain secondary to partial thickness defect in patella cartilage prohibiting full function as an infantryman. There was no loss of range of motion or instability. The VA applied a 10% rating using code 5260 (limitation of flexion of the leg) for painful motion for the right knee patellofemoral syndrome, chronic knee pain. The CI was noted to have pain on motion during his NARSUM examination as well as on his VA examination in the presence of non-compensable ROM. Therefore, IAW DeLuca v. Brown, the Board finds that a 10% rating is appropriate using code 5099-5003, however, there is no route to a higher rating such as code 5258 in the absence of meniscal (also cartilage, but related to the knee long bones) dislocation with frequent episodes of “locking,” pain, and effusion into the joint. 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 chronic knee pain condition.

Pes Planus Condition. The STR had limited evidence related to the pes planus condition. At the MEB examination, the CI reported foot pain (flat feet) and the MEB physical examination noted mild, symptomatic pes planus. The CI’s profile did not address the pes planus nor did the commander’s statement, which focused exclusively on the CI’s knee condition noting the CI was an infantryman. A reference to an 8 June 2006 Podiatry visit was noted in the NARSUM without any details. At the VA Compensation and Pension (C&P) examination performed one month after separation, the CI reported he had flat feet “all my life.” “It all my right knee and foot.” He had pain in the top of the right foot and arch since basic training where he was given Motrin and later treatment with orthotics. The pain was a “7” and the CI thought the pain came from his knee. Examination revealed pes planus bilaterally with no plantar tenderness. ROMs were normal bilaterally without pain or with diminution on repetitive motion. X-rays revealed bilateral pes planus without any periosteal (a layer around the bone) changes, fractures or foreign bodies. The VARD denied service connection for the pes planus because the condition existed prior to service and was annotated on the CI’s enlistment examination dated 10 August 2005, which showed bilateral pes planus, moderate, asymptomatic; therefore, the CI was qualified for service. The VARD had details not available in the STR including references dated 19 November 2005 that showed treatment for foot pain and tenderness of the feet with Motrin, a 17 July 2006 visit for inserts and other orthotics, and a 24 October 2006 visit for orthotic inserts for the CI’s running shoes to treat the pes planus. The VARD concluded that “[t]here was no objective evidence that the bilateral pes planus condition permanently worsened as a result of military service.” An urgent care note dated 26 September 2007, two months post separation, indicated the CI’s past medical history with the notation “pes planus (since kid).”

The Board directed attention to its rating recommendation based on the above evidence. The Board’s main charge with respect to this condition is an assessment of the fairness of the PEB’s determination that it was not unfitting. The Board’s threshold for countering Service 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. The established Disability Evaluation System principle for fitness determinations is that they are performance-based; and, the Board is confronted in this case with the specific evidence that bilateral pes planus limitations prohibited the performance of those duties required of the MOS. Although it is acknowledged that the late evolution of the condition in the CI’s career did not provide for a significant trial of performance after the diagnosis, members agreed that there was no unique objective evidence referable to the pes planus, which would challenge the PEB’s fitness conclusion; and, there were no clinical features or specific functional limitations which would render the condition inherently unfitting. 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 bilateral pes planus condition; thus no additional disability rating 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 likely reliance on US Army Physical Disability Agency (USAPDA) pain policy for rating right knee condition was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 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 5099-5003 10%
COMBINED 10%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20140528, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans Affairs Treatment Record








XXXXXXXXXXXXXXX
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
for XXXXXXXXXXXXXXX, AR20150008492 (PD201302776)


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                       XXXXXXXXXXXXXXX
                           Deputy Assistant Secretary of the Army
                           (Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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