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AF | PDBR | CY2013 | PD2013 00143
Original file (PD2013 00143.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXXX        CASE: PD 13-00143      
BRANCH OF SERVICE: Army  BOARD DATE: 20130627
Date of Permanent SEPARATION: 20070721  


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SFC/E-7 (11B40/Infantryman) medically separated for osteoarthritis and chondromalacia of both knees. The CI had a gradual onset of right knee pain over several years. Left knee pain began in 2004 and right knee pain worsened in the setting of rigorous physical training, including a 25-mile road march. He underwent arthroscopic surgery of the left knee but continued to experience bilateral 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 U2/L3/S2 profile and referred for a Medical Evaluation Board (MEB). The bilateral knee condition, characterized as “osteoarthritis, chondromalacia both knees with chronic knee pain and patellofemoral syndrome” was forwarded to the Physical Evaluation Board (PEB) as medically unacceptable IAW AR 40-501. The MEB also identified and forwarded three other conditions (lumbago, midback and shoulder pain, and attention deficit hyperactivity disorder-with depression, not otherwise specified), judged to meet retention standards. The informal PEB adjudicated the bilateral knee condition as unfitting, rated 10%, with likely application of the Veteran’s Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions were determined to be not unfitting and therefore not ratable. The CI made no appeals, and was medically separated with that Service disability rating.


CI CONTENTION: “I was told 10% was the best I could hope for and if I wanted to push for more I risked getting 0% and that 90% of people get 10%. I am currently still struggling with VA for diagnosis of Severe Back & knee Pain that ended my career. My 80% Disability reflects nothing for my Back and only 10% for my knees. Which is far more severe than anything else I am rated for.” [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 those conditions identified but not determined to be unfitting by the PEB when specifically requested by the CI. The Service rating for the unfitting bilateral knee condition is addressed below; as are the requested back conditions, which were determined to be not unfitting by the PEB. 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 respective Service Board for Correction of Military Records.






RATING COMPARISON :

Service IPEB – Dated 20070503
 VA – (At the time of Separation)
Condition
 Code Rating Condition Code Rating Exam
Osteoarthritis & Chondromalacia Both Knees 5003 10% Lt Knee DJD w/ Chondromalacia & Patellofemoral Syndrome S/P Lt Knee Arthroscopy & Medial Meniscal Tear Debridement 5259-5010 10% 20070619
Rt Knee DJD w/ Chondromalacia & Patellofemoral Syndrome 5024-5010 0%* 20070619
Lumbago Not Unfitting Lumbago 5299-5237 NSC 20070619
Midback & Shoulder Pain Not Unfitting Degenerative Arthritis C-Spine 5242 0% 20070619
Rt Shoulder Strain 5099-5024 10% 20070619
Attention Deficit Hyperactivity Disorder w/ Depression Not Unfitting Depressive Disorder NOS w/ Attention Deficit Disorder – Inattentive Type 9499-9435 10% 20070703
No Additional MEB/PEB Entries
 Other x 7 20070619
Combined: 10%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 200 70703 ( most proximate to date of separation [ DOS ] ).
*Right Knee DJD increased to 10% effective 20100211.


ANALYSIS SUMMARY: 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 military Disability Evaluation System has neither the role nor the authority to compensate service 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. The Board considers VA evidence within 12 months only to the extent that it reasonably reflects the disability at the time of separation.

Osteoarthritis and Chondromalacia of Both Knees. The PEB combined the right and left knee conditions under a single Service disability rating, coded 5003. Although 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 Service 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 service treatment record (STR) in 2004 indicated a history of right knee pain which worsened following a 25-mile forced road march; and the onset of left knee pain and locking during the same period. A magnetic resonance imaging (MRI) of the right knee showed degeneration of the posterior horn of the meniscus, without evidence of a meniscal tear. An MRI of the left knee showed a tear through the posterior horn of the medial meniscus and a small joint effusion. The CI underwent an arthroscopic left medial meniscal tear debridement in October 2004. At a six-week post-operative exam the CI reported resolution of both left and right knee pain. The knee exam noted full active ROM, and no tenderness, effusions, or instability. However, in May 2005 he reported recurrent 7-8/10 left knee pain (1—10 scale) when running; the exam found crepitus and ROM 0-120 degrees but was otherwise normal. A bone scan to evaluate bilateral shin splint pain in March 2006 showed findings consistent with shin splints and stress reactions in both knees. At an outpatient exam in May 2006 he reported persistent bilateral knee pain; physical exam found bilateral tenderness, and full ROM with pain on motion. A repeat bone scan (June 2006) showed non-specific changes in the knees thought to be representative of degenerative disease. An outpatient examination in December 2006 stated painful motion was present, but it is not clear if this referenced the left knee only or both knees. At the narrative summary (NARSUM) exam on 21 December 2006 (seven months before separation) the CI reported that he was unable to stand for more than 15 minutes in formation and could not tolerate military combat gear or running. He had difficulty with the walking event at the last physical fitness test and could not perform an alternate swim or bike event. He also experienced knee pain and swelling with an elliptical exercise machine. A non-narcotic pain medication was not beneficial. On physical exam of the knees, Lachman test was negative, there was no muscle atrophy, and strength and reflexes were normal bilaterally. Tenderness in the bilateral tibial shafts was noted, but the exam was silent regarding painful motion. The VA Compensation and Pension (C&P) exam in June 2007 (one month before separation) reported symptoms of stiffness, heat, giving way, lack of endurance, and fatigability. There was no complaint of weakness, swelling, redness, locking, or dislocation. The CI reported constant localized pain rated at 4/10 severity which did not result in incapacitation. He was not receiving treatment and was able to function without medication. The examiner assessed his functional impairment to be difficulty with prolonged standing and walking. The physical exam noted non-tenderness of each knee and normal ligamentous and meniscal tests bilaterally. Painful motion was not mentioned. The examiner reported no repetition-induced limitation by pain, fatigue, weakness, lack of endurance, or incoordination. Strength was normal bilaterally. Gait was normal. X-rays of the knees showed degenerative arthritic changes bilaterally. The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.

Knee ROM
 (Degrees)
 MEB ~ 7 Mo. Pre-Sep VA C&P ~ 1 Mo. Pre- Sep
Left Right Left Right
Flexion (140 Normal)
 130 1 25 140 140
Extension (0 Normal)
 0 0 0 0
Comment
 +crepitus
§4.71a Rating
 0% or 10 % 0% or 10 % 0% or 10 % (VA 10%) 0% or 10 % (VA 0%)

The Board directs attention to its rating recommendation based on the above evidence. The PEB assigned a 10% rating under code 5003 (degenerative arthritis) for involvement of two major joints. The VA rated each knee at 10% applying 5003 rating criteria, as follows: right knee, code 5024-5010 (tenosynovitis; arthritis due to trauma); and left knee, code 5259-5010 (cartilage, semilunar, removal of, symptomatic). The Board first considered if the left and right knee conditions met the Board’s threshold for separate ratings (as elaborated above). The evidence above does not suggest unilateral distinctions with regards to clinical features or fitness considerations. It is speculative to conclude that the disability confined to a single knee would not have rendered the CI incapable of performing his MOS; but, it is also reasonable to surmise that it was the overall effect of both knees which rendered him unfit. Furthermore, the bilateral diagnosis supported a single 5003 based rating for “2 or more major joints;” thus there is VASRD §4.71a latitude for a bilateral rating. Members agreed, therefore, that there were insufficient grounds for recommending separate right and left knees Service disability ratings in this case. The Board agreed that X-ray evidence of degenerative changes in both knees supported a 10% rating coded 5003. There was no documentation of occasional incapacitating exacerbations to justify the higher 20% rating. 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 bilateral knee pain condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the lumbago and midback and shoulder pain conditions were not unfitting. The Board’s threshold for countering 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 CI had a history of lower back pain of gradual onset and intermittently recurring mid-back pain and right scapular pain. X-rays of the lumbar spine (October 2006) and thoracic spine (November 2006) revealed no abnormalities. The NARSUM examiner reported lower back pain and spasm with standing more than 10 minutes, with or without load-bearing gear; and “…because of his knees, which give out first, he cannot really gauge the degree of back severity.” The examiner also noted a three-month history of shoulder pain attributed to posture. Except for a temporary profile for right shoulder pain issued in 2000 the lumbago and midback and shoulder pain conditions were not profiled until the time of the MEB. The mid-back and shoulder condition was then assigned a U2 profile and the lumbago condition an L2 profile. The conditions were not implicated in the commander’s statement and were not judged to fail retention standards. The conditions were reviewed by the action officer and considered by the Board. There was no performance based evidence from the record that any of the conditions significantly interfered with satisfactory 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 any of the contended conditions and so no additional disability ratings are 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. The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised. In the matter of the bilateral knee osteoarthritis and chondromalacia condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended lumbago and midback and shoulder pain conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting. There were no other conditions within the Board’s scope of review for consideration.


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
Osteoarthritis and Chondromalacia of Both Knees 5003 10%
COMBINED
 10%



The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130404, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record


                          
         XXXXXXXXXXXXXXXXXXXXXX, DAF
         Director of Operations
         Physical Disability Board of Review


SFMR-RB                                                                         


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


SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for xxxxxxxxxxxxxxxxxxxx, AR20130021853 (PD201300143)


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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