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AF | PDBR | CY2013 | PD2013 01356

Original file (PD2013 01356.rtf) Auto-classification: Denied

RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX CASE: PD1301356
BRANCH OF SERVICE: Army BOARD DATE: 20140221

SEPARATION DATE: 20040919

SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve SGT/E-6 (51H/Construction Engineering Supervisor) medically separated for a left knee condition. The CI had a history of problems with his left knee, including two surgical procedures on that knee in the 1970s. He experienced significant pain in the left knee while deployed in 2003 and was evacuated to CONUS. The left knee condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or physical fitness standards, so he was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB). The left knee condition, characterized as “chronic pain and arthritis in the left knee,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “chronic pain left knee” as unfitting, rated 20%, referencing DoDI 1332.39. The CI appealed to the Formal PEB (FPEB), which affirmed the PEB finding and rating. The CI also submitted a rebuttal to the FPEB, which was reviewed and rejected by that Board and the US Army Physical Disability Agency. The CI was released from active duty due to medical disability and transferred to the Retired Reserve List awaiting pay at age 60 pursuant to his request.

CI CONTENTION: “Had to have both knees replaced. The left knee in January, 2005 and the left knee in 2008. Diagnosed with COPD, Menears Disease, LUTS, Erectile Dysfunction, high cholesterol, Type II diabetes prior to discharge on September 19, 2004. And have many issues with pain since discharge.”

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 left knee condition and the contended chronic obstructive pulmonary disease (COPD) condition are addressed below; no additional conditions (Meniere’s, LUTS, erectile dysfunction, high cholesterol or Type II diabetes) are within the DoDI 6040.44 defined purview of the Board. Any condition 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 (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 proximate to separation in arriving at its recommendations and DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence. 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.

RATING COMPARISON :

Service FPEB – Dated 20040608	VA - (~13 Mos. Post-Separation)
Condition	Code	Rating	Condition	Code	Rating	Exam
Chronic Pain, Left Knee…	5257	20%	Residuals of Left Knee Injury	5010-5257	NSC	20051005
No Additional MEB/PEB Entries	Other x15
Rating: 20%	Combined Rating: 50%

Derived from VA Rating Decision (VA RD ) dated 200 40919

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 VA Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation; and, to review those Service fitness determinations within its scope (as elaborated above) consistent with performance-based criteria in evidence at separation.

Left Knee Condition. The CI had a long history of left knee injuries with two surgical procedures dating back to the mid 1970’s. He received a waiver for both knees prior to entry into the Service in February 1980. He had intermittent complaints of left knee pain and swelling until June 2003 when he re-injured his left knee while doing sit-ups. Magnetic resonance imaging (MRI) revealed mild degenerative changes, absent medial meniscus and anterior cruciate ligament (ACL) and moderate joint effusion. He was deployed at the time of the injury and MRI and was redeployed state-side for management of his left knee. He underwent treatment with non-steroidal anti-inflammatory drugs and physical therapy. By January 2004, his knee pain continued and orthopedic evaluation resulted in the determination that no durable improvement from surgery was likely. Despite continued treatment, his left knee pain continued and repeat MRI in May 2004 documented that the CI had arthritic changes in all compartments, degenerative abnormalities of both menisci, and near complete loss of the articular cartilage of the knee. At that time a permanent profile was submitted and he underwent MEB proceedings. There were some service treatment record (STR) entries of subjective sensations of instability, crepitence and painful motion; however, there were no documented episodes of dislocation. The MEB narrative summary (NARSUM) prepared 8 months prior to separation noted a history consistent with that outlined above. It also documented activity related pain and swelling that was worse with squatting, kneeling and any attempts at running. The patient also described some generalized leg pain with prolonged walking. Physical exam revealed a painful gait. There was a pain-free full range-of-motion (ROM) with tenderness to palpation along both the medial and the lateral joint line with the presence of bone spurs palpation. There was 2+ Lachman’s test and a 2+ anterior test (tests of knee instability in front/back plane of movement) and a negative pivot shift test with no evidence of varus or valgus (side to side) knee instability. Plain radiographs revealed generalized arthritis of the knee with diffuse bone spurs about the knee joint. The orthopedist’s diagnosis was chronic ACL insufficiency with a post-meniscectomy degenerative joint disease of the left knee. His conclusion was:

“It is unlikely that [the CI] will benefit from surgical intervention or from other non-operative measures. He is likely to have a slowly progressive course and eventually will require knee replacement in the years to come. He has been given an intra-articular steroid injection to provide temporary relief for this knee pain and has been placed on non-steroidal anti-inflammatory drugs as well. Furthermore he's been prescribed a Unloader brace to provide some symptomatic relieve to the knee. A permanent profile has been completed and the Medical Evaluation Board process will commence.”

The VA Compensation and Pension exam, performed 13 months after separation, is not relevant to the left knee disability at separation; as the CI had undergone a total left knee replacement by the time of that exam.

The Board directs attention to its rating recommendation based on the above evidence. The PEB adjudicated the left knee condition by applying VASRD code 5257, other impairment of the knee, and rated it 20% based on the 2+ Lachman’s test as directed by DODI 1332.39. The initial VARD, dated 3 months after separation, did not grant service-connection for the left knee condition as it existed prior to service (EPTS) and there was no evidence the condition permanently worsened as a result of service. A subsequent VARD, dated 14 April 2010, granted service-connection and rated the left knee at 10% effective the day after separation. There is no question that the CI had a left knee condition that was EPTS; however, an orthopedic consult on 6 February 1980 concluded that “He is ok as far as knees are concerned” and therefore, no rating deduction will be entertained. Rating the knee using VASRD guidelines requires ROM measurements and/or other evidence of knee impairment. All probative documents in the STR reflect non-compensable ROM measurements with adequate evidence for painful motion IAW §4.59. The Board considered alternative coding options as all probative documentation agrees that the CI had removal of at least one meniscus in his left knee which caused symptoms. That symptomatic removal of cartilage would be coded 5259 and rated at 10% which would confer no benefit to the CI. The NARSUM physical exam documented left knee instability with no STR evidence of recurrent subluxation episodes, which is consistent with the PEB’s application of code 5257 with a 20% “moderate” rating under VASRD rating rules. The Board also considered applicability of the VA FAST Letter 04-22; however, the letter was dated after the CI’s date of separation and therefore not applicable in this case. 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 left knee condition.

Contended COPD Condition. The Board’s main charge is to assess if the COPD condition was intended to be entered into the DES and if so, make a rating recommendation if the Board determines the condition was unfitting. The evidence present for review contains a permanent P3/L3 profile that annotates COPD as a medical condition requiring MEB action. A MEB addendum was prepared 2 months after the MEB was convened which identified COPD as “did not meet criteria for retention according to AR 40-501, 2-23d (1) since this condition has been present for approximately 1 year without resolution.” Based on that evidence, Board members agree that the COPD condition was entered into the DES for PEB adjudication, as indicated by the inclusion of the COPD addendum dated 4 June 2004 as Exhibit D on the Formal PEB proceedings document. Next, the Board considered a fitness recommendation for the COPD condition at the time of separation. An established principle for fitness determinations is that they are performance-based; and, the Board is confronted in this case with the lack of any evidence that the limitations imposed by the COPD condition prohibited the performance of the 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 an adequate trial of performance after the diagnosis, members agreed that there was no citable evidence which would suggest that the COPD condition was unfitting. The evidence present for review was the P3 profile prepared at the time of the addendum (June 2004) 2 months after entry into the DES. There was one document in the service treatment record that documented “mild obstructive airway disease c/w reactive airways disease (RAD).” Additionally, there was a medication profile report that documented an inhaler medication for COPD was prescribed less than 4 months prior to separation. There were no clinical features in evidence or specific functional limitations which would render the condition inherently unfitting. All documentation was reviewed and considered by the Board. There was no performance based evidence from the record that the COPD condition significantly interfered with satisfactory duty performance. After due deliberation, the Board concluded that there was insufficient cause to recommend an “unfitting” COPD condition be added to the CI’s disability record and so no additional disability rating is 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 DoDI 1332.39 for rating chronic pain left knee was operant in this case and the condition was adjudicated independently of that instruction by the Board. In the matter of the chronic pain left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication. 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
Chronic Pain Left Knee	5257	20%
RATING	20%

The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20130911, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXXXXX, DAF
President
Physical Disability Board of Review

invalid font number 31502 SFMR-RB

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MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

invalid font number 31502 SUBJECT: Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX invalid font number 31502 , AR20140007656 (PD201301356)
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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:

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Encl                                                  XXXXXXXXXXXXXXXXXX invalid font number 31502
                                                      Deputy Assistant Secretary
invalid font number 31502                                                       invalid font number 31502 (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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AF | PDBR | CY2013 | PD2013 01356

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