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AF | PDBR | CY2013 | PD-2013-02810
Original file (PD-2013-02810.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXX          CASE: PD -20 1 3 - 0 2810
BRANCH OF SERVICE: Army   BOARD DATE: 2014 1105
Separation Date: 20070329


SUMMARY OF CASE : Data extracted from the available evidence of record reflects that this covered individual (CI) was a non-drilling National Guard SGT/E-5 (13R/ Field Artillery Fire F inder RADAR Operator ) medically separated for a bilateral knee condition. The bilateral knee condition could not be adequately rehabilitated to meet the physical requirements of his Milit ary Occupational Specialty or satisfy physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The MEB referred bilateral knee pain, retro patellar pain syndrome and mild degenerative joint disease, bilateral knees to the Physical Evalu ation Board (PEB) IAW AR 40-501. No other condition was forward by the MEB for PEB consideration. The PEB adjudicated the three knee conditions as one condition, “chronic bilateral knee pain”, rated at 10% citing the US Army Physical Disability Agency (USAPDA) pain policy. The lumbago condition in and of itself, was determined to be not unfitting nor rated to the unfitting condition . The CI made no appeals and was medically separated.


CI CONTENTION : The CI attached a letter to his application, which was reviewed by the Board and considered in its recommendations. In the letter, the CI contented for his knees, his back, and a mental health (MH) condition, which he claimed, was attributable to his physical condition while in service.


 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 PEB rating for the unfitting bilateral knee condition as well as the CI’s contended back condition, are addressed below. The requested mental health (MH) condition was not identified by the PEB and thus is not within the DoDI 6040.44 defined purview of the Board. No additional conditions are 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.

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 Veteran Affairs, operating under a different set of laws. 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. The Board likewise acknowledges the CI’s contention for an additional disability rating of his back condition, which was determined to be not unfitting by the PEB and, emphasizes that disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that any contested condition was most likely incompatible with the specific duty requirements; a disability rating IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD) and based on the degree of disability evidenced at separation will be recommended.


 RATING COMPARISON :

Service IPEB – Dated 20070214
 VA - (16 Mos. Pre-Separation; 17 mos. Post last active duty period)
Condition
 Code Rating Condition Code Rating Exam
Chronic Bilateral Knee Pain 5099-5003 10% Degenerative Joint Disease (DJD), left knee 5010-5260 20% 20051219
DJD right knee 5010-5260 10% 20051219
Lumbago Not Unfitting No VA Entry*
Other x1 (not in scope)
 Other x1 20051214
Combined: 10%
 Combined: 30%
Derived from VA Rating Decision (VARD) dated 20060125 (most proxi mate to date of separation )
 VARD 20091029 d enied service connection for CI’ s claimed back condition. VARD 20130808 increased disability for right knee to 20%, effective 20130109 .


ANALYSIS SUMMARY : IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board reviews medical records and other available evidence to assess the fairness of PEB rating de terminations, using the VASRD standards, based on ratable severity at the time of separation.
The PEB rated the chronic bilateral knee pain condition under the single analogous code of 5099-5003, ( degenerative arthritis ), utilizing AR 635-40, B.24 . ( f ), which restricts th e maximum rating for pain to 20% disabling. In addition, the VASRD allows for combining two major joints or two or more minor joints , under one disability code for a single rating, when n o single joint has compensable loss of r ange-of- m otion (ROM) . IAW DoDI 6040.44 , t he Board must use the VASRD in arriving at its recommendation, along with all applicable statues and any directives in effect at the time of the CI’s contested separation, to the extent they do not conflict with the VASRD . If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was reasonably justified as unfitting in and of itself, with the caveat that the final recommendation may not produce a lower combined rating as that of the PEB.

Chronic Bilateral Knee Pain Condition . There were two goniometric ROM evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arrivi ng at its rating recommendation , as summarized in the chart below.

Knee ROM (Degrees)
 VA C&P ~ 15. 5 Mo s. Pre-Sep MEB ~ 3 Mo s . Pre-Sep
Left Right Left Right
Flexion (140 Normal)
 100 110 90 90
Extension (0 Normal)
 Not Measured 0 0
Comment
 Pos. painful motion; Normal gait; Pos. Deluca criteria; No instability; Pos. crepitus Pos. painful motion; Antalgic gait w/ cane & knee braces; Decreased strength; Normal reflexes
§4.71a Rating
 10% (VA 20 %) 10% (VA 10%) 10 % 10 %
invalid font number 31502
The CI developed bilateral knee pain after “ he fell into a ditch ” during training in June 2004. He was seen by an o rthoped ics provider for bilateral knee pain with swelling that was localized over the patellar area. P hysical exam findings were of bilateral effusions, 1A Lachman’s (ACL deficiency), pate llar apprehension (subluxation) and his quad strength was 4/ 5. The examiner diagnosed bilateral anterior knee pain with effusions and possible chondromalacia. The examiner prescribed a non-steroidal anti-inflammatory drug (NSAID) and assigned the CI a temporary L3 p rofile with specific activity restrictions. X-rays images of bilateral knee were normal .
The VA Compensation and Pension (C&P) exam ination ( performed approximately 16 months prior to separation ), the CI reported he experience bilateral knee pain with stiffness that’s worse n by walking 10 minutes, standing 15 minutes , bending knees while sitting on the floor, climbing stairs and standing - up from and/ or taking a kneeling or squatting position . The knee symptoms interfered with daily activities and wer e relieved somewhat with NSAIDS and rest. The VA C&P physical exam findings were summarized in the chart above.

The MEB Narrative Summary (NARSUM) exam ( performed approximately 6 months prior to separation ) documented that the right knee pain was equal to the left knee in terms of pain. The knee pain was described as throbbing and was a ggravated by prolonged standing, walking and impact s activities. The CI consistently use d knee braces to ambulate and he also used a cane 80% of the time. The M EB examiner noted that orthopedics diagnosed the CI ’s knee as minimal bilateral DJD and patellofemoral pain and that his physical therapy outcomes were poor . The MEB examiner rated the pain according to the American Medical Association (AMA) pain scale at s evere , marked and constant. The examiner diagn osed bilateral knee pain, retro patellar pain syndrome and mild DJD . The MEB NARSUM physical exam findings are also summarized in the above chart.

The Board directs attention to its rating recommendation based on the above evidence. The PEB coded the chronic bilateral knee pain condition as 5099 analogous to 5003 arthritis , degenerative ( hypertrophic or osteoarthritis) and rated at 10% with application of the USAPDA pain policy. The VA unbundled the knee condition and coded the left knee as 5010 (arthritis due to trauma), with 5260 ( limitation of l eg flexion ) and r ated at 20% and right knee DJD rated at 10%. Board deliberations began with a discussion as to whether to keep the bilateral knee conditions bundled as adjudicated by the PEB. The bilateral knee condition was considered as failing retention standards; both were implicated by the NARSUM and both were profiled. Since the disability attendant to only one of the knees that was not isolated by the clinical evidence, or extricated from the fitness implications of the bilateral limitations; member consensus was that both the left and right knee were “reasonably justified” as separately unfitting. There were no unilateral distinctions concerning clinical featu res or fitness considerations and there were no ROM measurements or knee conditions that would allow application of any knee specific VASRD code. Ther e is however , evidence of painful motion IAW VASRD § 4.59 and functional loss IAW VASRD § 4.40 to allow for application of VASRD code 5003. 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 c hronic r ight k nee p ain and 1 0% for th e c hronic l eft k nee p ain , both coded as 5 0 99-5003.

Contended Lumbago Condition. The contended lumbago condition was adjudicated as not unfitting by the PEB . The Board’s first charge with respect to th is 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 (reasonable doubt) standard s used for its rating recommendations and require a preponderance of evidence. This condition w as neither profiled, nor implicated in the commander’s statement and the lumbago was not judged to fail retention standards. The lumbago was reviewed by both the Action Officer as well as considered by the Board ; however, members agree that t here was no indication in the CI’s service treatment record that this condition significantly interfered with the CI’s 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 lumbago condition therefore, 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 reliance on the USAPDA pain policy for rating chronic bilateral knee pain was operant in this case and the condition was adjudicated independently of that policy by the Board. In the matter of the chronic bilateral knee pain condition, the Board , by an majority vote, recommends that each knee is separately unfitting and should be rated as follows : chronic right knee pain condition coded as 50 99-5003, rated at 10% and the chronic left knee pain condition coded as 50 99-5003 and rated at 10% , IAW VASRD §4.71a. The single voter of dissent did not elect to submit a minority opinion. In the matter of the contended l umbago condition , the Board unanimously recommends no change from the PEB not unfitting determination. There were no other conditions within the Board’s scope of review for consideration.


 RECOMMENDATION : The Board majority 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
Chronic Right Knee Pain 5 0 99-5003 1 0%
Chronic Left Knee Pain 5 0 99-5003 10%
COMBINED (w/ BLF)
 2 0%
invalid font number 31502

The following documentary evidence was considered:
Exhibit A. DD Form 294, dated 20 131226 , w/atchs
Exhib it 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, AR20150006491 (201302810)


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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