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AF | PDBR | CY2013 | PD2013 00041

Original file (PD2013 00041.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX CASE: PD1300041
BRANCH OF SERVICE: Army BOARD DATE: 20130620

SEPARATION DATE: 20031114

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (35E/Communications) medically separated for a chronic right and left knee condition. The CI began having knee pain in June 1998. She underwent multiple surgical procedures and rehabilitative therapy. The knee condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty or satisfy physical fitness standards. She was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). Right and left knee conditions were forwarded to the Informal Physical Evaluation Board (IPEB) IAW AR 40-501. No other conditions were submitted by the MEB. The IPEB found the right and left knee conditions unfitting, rated 0% and 0% with likely application of the US Army Physical Disability Agency (USAPDA) pain policy. The CI did not accept the IPEB findings and requested a formal hearing. The Formal PEB (FPEB) combined the right and left knee problems into a single unfitting condition and rated it at 10%. The CI appealed to USAPDA, which affirmed and upheld the FPEB findings. The CI was then separated.

CI’s CONTENTION: “Coming from a family of military personnel, my intent when joining the Army was to serve at least 20 years as other family members. Due to my injuries, including at least 6 surgeries in an attempt to correct just the knee problem, I was not able to continue performing the physical requirements of a military leader. The degenerative knee joint disease in both knees, bilateral shoulder tendinitis, right wrist tendinitis, and tension headaches sustained active duty, continue to this day. These conditions, especially the bilateral knee degenerative joint disease has worsened with time and has limited my ability to perform daily functions such as standing and participating in physical activities. It also hindered me from pursuing my desire to become a Warrant Officer and Black Hawk Pilot while in the service. My records indicate I was medically discharged as an E6. On July 24, 2003, I was selected for promotion to E7 (attached documentation); however, was not able to be officially "pinned" as an E7 prior to my discharge on November 14, 2003. I respectfully request a reconsideration of my original rating to include a recommendation for military retirement at the pay grade of E7, which at a minimum, I would have received after 20+ years of service had it not been for my injuries. My military service and awards confirm I was a soldier committed my fellow soldiers, the service, and the mission.”

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 and left knee condition is addressed below. No other conditions are within the DoDI 6040.44 defined purview of the Board. Any conditions outside the Board’s scope of review may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Army FPEB – dated 20030801	VA – (one month Pre-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Right and Left Knee Pain	5003	10%	Right Knee Pain	5299-5003	10%	20031016
			Left Knee Pain	5299-5003	0%	20031016
No Additional MEB/PEB Entries	Other x 3	20031016
Combined: 10%	Combined: 10%

Derived from VA Rating Decision (VA RD ) dated 200 31119 ( most proximate to date of separation [ DOS ] )

ANALYSIS SUMMARY: The Board acknowledges the sentiment expressed by the CI regarding the impairment with which her knee condition continues to burden her, and the significant impact it has had on her quality of life. It is noted for the record that the Board is subject to the same laws for Service disability entitlements as those under which the Disability Evaluation System (DES) operates. The DES has neither the role nor the authority to compensate members for future severity or potential complications of conditions. That role and authority is granted to the Department of Veterans Affairs (DVA). The Board evaluates DVA evidence in arriving at its recommendations, but its authority resides in evaluating the fairness of DES fitness and rating determinations at the time of separation. While the DES considers all of the CI's medical conditions, compensation can only be offered for those conditions that cut short a member’s career, and then only to the degree of severity present at the time of separation. The DVA, however, is empowered to compensate for service-connected conditions and to periodically re-evaluate conditions for the purpose of adjusting the Veteran’s disability rating should the degree of impairment change over time.

Right Knee Pain. The CI has a history of gradually increasing right knee pain which began (approximately) June 1998. She recalls one specific incident of significant right knee injury. While playing basketball, she sustained a severe axial load to her right leg, causing right knee pain. Magnetic resonance imaging was reportedly normal. From 1999 to 2003, the CI had multiple surgical procedures on the right knee. She was also treated with other measures as well; including activity modification, nonsteroidal medication, and physical therapy. In spite of treatment, the right knee pain persisted and an MEB was initiated. The MEB physical examination (PE) was in May 2003. Right knee exam showed no effusion, erythema, swelling, or ecchymosis. There was good mobility of the patella, with no significant tenderness to palpation (TTP) over the medial or lateral facets. Patellar grind test was negative, and there was minimal to no pain with patellar compression. She did have some patellar crepitus with range-of-motion (ROM). She was able to range her right knee 0-120 degrees. There was no varus/valgus laxity. The Lachman’s, anterior drawer, posterior drawer, and pivot shift tests were all negative. There was minimal TTP over the medial joint line, but no lateral joint line tenderness at all. Distally, she was neurovascularly intact, and the Q-angle was less than 15 degrees.

At the VA Compensation and Pension (C&P) exam performed a month prior to separation, the CI reported daily pain in the medial aspect of the right knee, and in the retropatellar area. She denied flare-ups or instability. Walking was limited to one-half block, and she was not able to run because of pain. On PE there was diffuse TTP in the anterior, medial, and lateral aspect of the right knee. There was mild effusion and crepitus, but no instability. ROM testing revealed flexion of 130 degrees, with pain past 90 degrees. Repetitive motion caused increased pain, but no decrease in ROM. The right knee ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Right Knee ROM	MEB ~ 5 mo s . Pre-Sep (20030602)	VA C&P ~ 1 mo . Pre-Sep (20031016)
Flexion (140 ⁰ is n ormal)	120 ⁰	130 ⁰
Extension (0 ⁰ is n ormal)	0⁰	0 ⁰
Comment	No mention of painful motion	Pain past 90⁰
§4.71a Rating	0 %	10 % *

*10% based on VASRD §4.40 (Functional loss), §4.45 (The joints), and §4.59 (Painful motion)

Left Knee Pain. In early 2003, the CI began having left knee pain, which was very mild and gradual in onset. At the May 2003 MEB PE, left knee exam showed full ROM from 0 to 120 degrees. There was no varus/valgus laxity, and no anterior/posterior laxity. She did have some medial joint line tenderness, and tenderness about the anterolateral aspect of the femoral condyle. There was no patellar crepitus, and no mechanical complaints with McMurray’s. There was good patellar mobility with no medial facet or lateral facet TTP. No pain with patellar compression, and no effusion. Distally, she was neurovascularly intact, and the Q-angle was less than 15 degrees.

At the C&P exam performed a month prior to separation, there was tenderness over the patella. No crepitus, effusion, or instability. ROM was normal, with flexion 145 degrees and extension 0 degrees. ROM testing was done without any pain. Repetitive motion did not cause discomfort, or decrease in ROM. The left knee ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized below.

“

Left Knee ROM	MEB ~ 5 mo s . Pre-Sep (20030602)	VA C&P ~ 1 mo. Pre-Sep (20031016)
Flexion (140⁰ is normal)	full ROM” at 120⁰	145⁰
Extension (0⁰ is normal)	0⁰	0⁰
Comment	No mention of painful motion	No pain with motion
§4.71a Rating	0%	0%

The Board carefully reviewed all evidentiary information available, and directs attention to its rating recommendation based on the above evidence. The August 2003 FPEB combined the two knee problems into a single unfitting condition. The condition was coded 5003 and rated at 10%. The November 2003 VARD unbundled the two knee conditions, and assigned a separate disability rating to each knee joint. The Board evaluated whether or not it was appropriate for the two knee problems to be “bundled” together. The Board must determine if the FPEB’s approach of combining the conditions under a single rating was reasonably justified in lieu of separate ratings. The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the Veterans Affairs Schedule for Rating Disabilities (VASRD). If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each ‘unbundled’ condition was separately unfitting. After due deliberation, the Board agreed that the evidence did not support a conclusion that each of the knee pain conditions, separately, would have rendered the CI unable to perform her required military duties. Specifically, the left knee condition was less severe than the right, and the Board determined that the left knee was not separately unfitting at the time of separation from service. Accordingly, the Board does not recommend a separate disability rating for each knee. It is reasonably justified for the two knees to be “bundled” together, and treated as a single unfitting condition.

After consideration of the knee examinations noted above, the Board determined that the October 2003 C&P exam had greater probative value since it was conducted just a month prior to the date of separation. Using data from the October 2003 C&P exam, the knee condition is essentially non-compensable based solely on the VASRD §4.71a codes for loss of knee motion (5260 & 5261). However; IAW VASRD §4.40, §4.45, and §4.59, a 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint. The Board tried to find a path to a rating higher than 10%, using other codes which could be applied to the knee condition. The other VASRD codes that were considered did not result in a higher rating, since the service treatment record did not show evidence of a significantly disabling joint abnormality which would justify a rating higher than 10%. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (Reasonable doubt), the Board found insufficient cause to recommend a change in the FPEB adjudication for the chronic knee pain 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. In the matter of the chronic right knee pain and chronic left knee pain, the Board unanimously recommends no change in the FPEB adjudication, IAW VASRD §4.40, §4.45, §4.59, and §4.71a.

RECOMMENDATION: The Board, therefore, recommends that there be no recharacterization of the CI’s disability and separation determination, as follows:

UNFITTING CONDITION	VASRD CODE	RATING
Chronic pain in both knees, right and left	5003	10%
COMBINED	10%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130121, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

SFMR-RB

MEMORANDUM FOR Commander, US Army Physical Disability Agency
(TAPD-ZB / XXXXXXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXXXXXXXXXXX, AR20130021894 (PD201300041)

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                                                  XXXXXXXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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