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AF | PDBR | CY2013 | PD2013 00365
Original file (PD2013 00365.rtf) Auto-classification: Denied
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXX   CASE: PD1300365
BRANCH OF SERVICE: Army  BOARD DATE: 20131114
SEPARATION DATE: 20090614


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (19D/Cavalry Scout) medically separated for right and left knee conditions. The applicant sought treatment for his left knee in January 2000 and his right knee in 2003. While deployed to Iraq in 2004, he injured both knees when his vehicle was struck by an improvised explosive device (IED) and his knees struck the radio mount. He was able to complete his deployment and redeployed in April 2005. Due to ongoing pain and complaints, he was evaluated and had right knee surgery in October 2005. He was deployed again but was medevac’d out due to ongoing knee complaints. He underwent left knee surgery in September 2006 and again in April 2007. Additionally, the CI reported recurrent headaches since the IED incident and non-traumatic low back pain (LBP) for 6 or 7 years. Memory and sleep problems, irritability and depression started in August 2005 after his second deployment. The bilateral knee conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty. He was issued a permanent L3S2 profile and referred for a Medical Evaluation Board (MEB). His profile allowed for alternate aerobic events to satisfy physical fitness standards. The original MEB dated 15 May 2008 did not include posttraumatic stress disorder (PTSD). Informal Physical Evaluation Board (IPEB) proceedings were discontinued due to issues/concerns regarding the CI’s complaints of memory loss and possible PTSD. Upon review by the MEB, a new DA Form 3947 dated 12 February 2009 was submitted. Chronic bilateral knee pain status post-surgery x1 on the right knee and x2 on the left knee, LBP, recurrent headaches, PTSD and depression not otherwise specified (NOS) were forwarded to the PEB IAW AR 40-501. Only the bilateral knees failed retention standards. The remaining four conditions were determined to meet retention standards. The IPEB adjudicated the bilateral knee conditions as unfitting, rating each knee 10%, with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD). The remaining conditions met retention standards and were determined to be not unfitting . The CI made no appeals and was medically separated with a combined 20% rating. The US Army Physical Disability Agency completed an administrative correction which did not change the CIs disposition or rating.


CI CONTENTION: “I got out the army with 20% on my rating, once I got my rating from VA I received 90% then one year later I received 100%.”


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 left and right knee conditions are addressed below. Of the conditions determined to be not unfitting by the PEB, members judged that the PTSD, depression (NOS), headaches and LBP were specified sufficiently in the application to meet the DoDI 6040.44 scope requirements; and are accordingly addressed below. 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.

RATING COMPARISON:

PDA ADMIN CORR – Dated 20090409
 VA - (1 Mos. Pre-Separation)
Condition
 Code Rating Condition Code Rating Exam
Right Knee 5099-5010 10% Right Knee s/p Arthroscopy 5010 10% 20090511
Left Knee 5003 10% Left Knee s/p reconstructive surgery 5099-5010 10% 20090511
PTSD Meets Retention Stds
Not Unfitting		 PTSD and Major Depressive Disorder 9434-9411 50% 20090505
Depression, NOS Meets Retention Stds
Not Unfitting
Headaches Meets Retention Stds
Not Unfitting		 Migraine Headaches 8045-8100 50% 20090511
Low Back Pain Meets Retention Stds
Not Unfitting		 Low Back Pain 5237 20% 20090511
No Additional MEB/PEB Entries
 Other x 8
Combined: 20%
 Combined: 90%*
Derived from VA Rating Decision (VA RD ) dated 20 100121 ( most proximate to date of separation [ DOS ] ). Increased to 100% on 20100806 VARD with addition of s leep a pnea.


ANALYSIS SUMMARY: IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations. The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to VASRD standards, based on ratable severity at the time of separation; and, to review those fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation. 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 (DES) 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 (DVA), operating under a different set of laws. The Board considers DVA evidence within 12 months only to the extent that it reasonably reflects the disability at the time of separation.

Right Knee Condition. While deployed in November 2004 the CI’s armored vehicle was hit with an IED and the blast caused him to strike both knees against the radio console inside the vehicle. Right knee pain and local swelling developed and persisted despite conservative treatment and therapy. X-rays revealed a torn meniscus, chondromalacia (softening of cartilage), arthritis and effusion. In October 2005, he underwent a diagnostic and therapeutic arthroscopy which revealed extensive synovitis (inflammation) and fracturing of the femoral condyle cartilage. Post-operatively, the CI did very well and within 3 weeks was noted to be “much better than pre-op” and “symptoms relieved.” His range-of-motion (ROM) was measured from 0-105 degrees. Records indicated a plan to provide a P2 profile by orthopedics but rather a permanent L2 profile was written on 4 November 2005. There was a 2-year period (2005-2007) void of right knee documents until the CI complained of bilateral knee pain in November 2007 where another magnetic resonance imaging (MRI) revealed similar findings as compared with prior tests, with an additional finding of a “possible” anterior cruciate ligament (ACL) tear or sprain. A third MRI performed in July 2008 revealed similar findings as before consistent with severe chondromalacia and arthritic degenerative spurring. There were two goniometric ROM evaluations in evidence (bilateral measurements), with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation.
Knee ROM
(Degrees)
 MEB ~ 6 Mo. Pre-Sep
(20081205)
 VA C&P ~ 1 Mo. Pre-Sep
(20090511)
Left Right Left Right
Flexion (140 Normal)
 90 95 140 140
Extension (0 Normal)
 0 0 0 0
Comment
 crepitus painful ROM painful ROM
§4.71a Rating
 10% 10% 10% 10%

The MEB n arrative summary performed 6 months prior to separation noted “ still having pain and swelling in [both] knees on a daily basis. ” The examination noted an antalgic gait and crepitus about the right knee. There was no swelling, laxity or hypertrophy noted and lower extremity strength and reflexes were normal. DeLuca criteria was met with regards to increased pain and lack of endurance, but the record remained unclear if this finding was for both legs [knees] or single leg independently. The VA Compensation and Pension (C&P), a month prior to separation, noted “ constant pain in both knees. ” The examination noted a mildly antalgic gait and painful motion of the right knee. All other parameters of the examination were normal or absent to include edema, erythema, tenderness, hypertro phy, crepitus or instability.

The Board directs attention to its rating recommendation based on the above evidence. The Army and VA utilized (in analogous combination) code 5010 (traumatic arthritis); both citing limited motion and additional painful motion by the VA. Board members agreed that sufficient evidence of painful motion (to include crepitus) was present to justify the rating of 10% IAW §4.59. The Board found that the ROM findings were non-compensable and that there was no evidence to support additional rating for instability. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends no recharacterization of the PEB adjudication for the right knee condition.

 Left Knee Condition . Relating to the previously described IED injury, the CI developed left knee pain with swelling and effusion with serial MRI findings of a large effusion and partial ACL tear, meniscal tear and patellar softening . Despite p hysical therapy , persistent hig h-level pain, popping sensation and feelings of “ give-way, ” the CI underwent arthroscopy surgery on 20   September 2006. Measured ROM a month after surgery was 0-100 degrees extension/flexion. Despite restrictions during post-operative rehabilitation, the CI was re-deployed in Feb ruary 2007 with an early return home due to exacerbation of left knee pain and swelling. A second surg ical procedure o steochondral a utograft t ransfer s ystem was performed on 18 April 2007. Extensive rehabilitation was successful in decreasing his pain, resolving his effusion, return of a normal gait and improved ROM of 0-120 degrees ; however, crepitus persistently remained present. In January 2008, the service treatment record ( STR ) noted that he was no longer a candidate for further surgery and due to pain was advised to continue to a MEB. His condition was noted as “ chronic stable ” in April 2009, 2 months prior to separation . Referencing the above ROM chart , t he MEB noted “ still having pain and swelling in [both] knees on a daily basis ” with additional comment of “ …improved some since the surgeries. ” The examination revealed joint hypertrophy and crepitus with movement. There was no laxity. Radicular testing, reflexes and strength were normal. DeLuca criteria was met with regards to increased pain and lack of endurance, but the record remained unclear if this finding was for both legs [knees] or a single leg independently. The C&P examination noted “ constant pain in both knees with swelling and giving away in the left. ” He denied weakness, instability, locking, stiffness or the need for ambulatory assistive device . He admit ted to wearing a “ brace ” on the left knee. The examination noted tenderness and crepitus about the left knee with painful motion. There was no joint hypertrophy or instability. Although there was a mildly antalgic gait, the examiner noted “ no functional lim itations on standing or walking . ”

The Board directs attention to its rating recommendation based on the above evidence. The PEB and VA chose slightly different approaches to rate the left knee. The PEB rated the condition at 10%, coded 5003 for degenerative arthritis. The VA analogously coded the condition 5099-5010 at 10%. The diagnostic code 5010 is rated as arthritis, degenerative with criteria under code 5003. Under code 5003, when the limitation of motion of the specific joint or joints involved is non-compensable under the appropriate diagnostic codes, a rating of 10% is applied for each such major joint or group of minor joints affected by limitation of motion. The Board found that the ROM findings were non-compensable and that there was no evidence to support additional rating for instability or nonunion. Members agreed that sufficient evidence of painful motion (to include crepitus) was present to justify the rating of 10% IAW §4.59. After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board unanimously recommends no recharacterization of the PEB adjudication for the left knee condition.

Contended PEB Conditions. The Board’s main charge is to assess the fairness of the PEB’s determination that the headaches, LBP, depression (NOS), and PTSD 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.

Headaches: The STR reflects the CI began treatment for new onset headaches in June 2007 and had a total of six clinical encounters for the same complaint before diagnosed with migraine headaches in January 2008. A neurology consultation described the CI’s symptoms as sharp, throbbing pain in the back of the head associated with watery eyes and light sensitivity 3-4 times per week, lasting 2-3 hours each episode. He noted no relief with over the counter medications or with current prescriptions of headache prophylactic medication. Self-treatment was described as “…goes into dark room and rests for the duration of the headache.” The neurologist diagnosis was migraine headache without aura and recommended prophylaxis treatment. Additionally, it was noted, “currently meets retention standards.” At the MEB examination, 14 months prior to separation, the CI stated “…gets a bad migraine 1-2 times per week and medium size headaches almost daily.” A MRI of the head revealed “sinus disease.” Although the physical examination was more orthopedic focused, it did note a normal head exam but absent cranial nerve evaluation. It also noted “recurrent headaches; meets retention standards.” The C&P examination performed on 11 May 2009, noted "it feels like my whole head is going to explode" and "I can't do anything when I have a headache." Pain is associated with nausea, dizziness and light sensitivity. The CI admits to daily mild headaches lasting 30 minutes to “all day” and migraines 3-4 times per week lasting 3-5 hours precipitated by loud noise, bright lights and stressful events. Alleviation factors include resting in a dark room and taking prescribed medication. The medication (Maxalt) was prescribed to be taken upon headache onset and again every 30 minutes until headache resolves; "I have to take about 3-4 pills before it goes away." Additional records noted “symptoms controlled by closing his eyes and pushes on his temples…sits in a dark quiet room and closes his eyes, takes Tylenol migraine and the headache is gone in less than to no more than an hour [sic].” The examiner additionally commented on activities of daily living as “the veteran says he is totally incapacitated during the headaches, therefore he is unable to complete any activities of daily living independently.” The physical examination revealed normal neurologic testing and the final diagnosis was “migraine headaches-debilitating [sic] in nature.” The commander’s statement indicated the CI as requiring “multiple rest periods during physical activity and prolonged standing,” but did not specifically relate such restrictions resulting from headaches. The CI maintained the ability to work an 8 hour day, to remember locations/work procedures, maintain attention and focus, communicate, and establish priorities. The STR documented three separate days of “24 hour quarters” due to headache pain during the 8-month period of headache records. There was no record of any reported body weakness, gait instability, slurred speech or inpatient hospitalizations for headaches.

The Board directs attention to its rating recommendation based on the above evidence. The record in evidence contained no emergent clinic, emergency room visits or specific loss of work greater than 24 hours for this condition and there was no treatment with daily migraine specific medication at time of separation. Migraine headache was not profiled, implicated in the commander’s statement; nor judged to fail retention standards by both neurology and primary care. The condition was reviewed and considered by the Board. There was no indication from the record that the migraine headache condition 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 migraine headache condition; and therefore, no additional disability ratings can be recommended.

Low Back Pain: The STR reflects multiple remote clinic visits and one emergency room visit between the years of 1997 and 2005 for back pain treatment. There was no hospitalization or other times of incapacitation due to back pain. The MEB simply noted a subjective history of back pain “…on and off for the last 6 years.” The examination noted deep tendon reflexes as normal, straight leg raise as negative, and optimal lower extremity strength. Back ROM was absent. The diagnosis was low back pain; “meets retention standards.” There was one remote temporary profile evidenced for a “back strain” in April 2000 which expired in May 2000 (9 years prior to separation). The back pain condition was not implicated in the commander’s statement; nor judged to fail retention standards by the MEB examiner. The condition was reviewed and considered by the Board. There was no indication from the record that the back pain 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 LBP condition; and therefore, no additional disability ratings can be recommended.

invalid font number 31506
Other Contended PEB Conditions. The other conditions forwarded by the MEB and adjudicated as not unfitting by the PEB was depression (NOS) and PTSD. At the request of the PEB, a psychiatric evaluation was performed on 25 November 2008 due to new evidence of memory loss, intermittent anxiety and a change in personality (reported by his spouse). The examination summarized his symptoms which included hyper-arousal activities with intrusive and repetitive thoughts/memories involving death and destruction. Additionally he endorsed “problems with people in general, spouse, anxiety, concentration, weight gain, depression, memory loss, insomnia and panic.” He underwent a complete battery of psychological testing during the MEB process. The CI scored slightly above the cut-off for the “potential” diagnosis of PTSD and the examiner opined a final assessment of PTSD and depression (NOS) with a Global Assessment of Functioning of 60, which equates to moderate symptoms or moderate difficulty in social, occupation or school activities. Social and industrial adaptability impairment was described as “mild.” The examiner’s conclusion was that the CI did meet the service retention requirements. Although PTSD and depression was profiled along with bilateral knee pain on 17 February 2009, it exactly mirrored the single condition profile for bilateral knee pain dated 28 November 2007. No psychiatric condition was implicated in the commander’s statement or judged to fail service retention standards. The conditions were reviewed and considered by the Board. There was no indication from the record that these 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 contended depression (NOS) and or PTSD conditions; and, therefore, no additional disability ratings 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. 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 right and left knee conditions and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. In the matter of the contended headaches, LBP, depression (NOS), and PTSD 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
Right Knee Condition 5099-5010 10%
Left Knee Condition 5003 10%
PTSD Not Unfitting
Depression (NOS)
Headaches
Low Back Pain
COMBINED (w/ BLF)
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130510, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record





XXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review


SFMR-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 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx, AR20140002282 (PD201300365)


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                                                  xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

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