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AF | PDBR | CY2013 | PD2013 02095
Original file (PD2013 02095.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1302095
BRANCH OF SERVICE: Army  BOARD DATE: 20140619
SEPARATION DATE: 20050629


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Active Guard Reserve (AGR) SSG/E-6 (92F/Petroleum Supply Sergeant) medically separated for a bilateral knee condition on 29 June 2005. The bilateral knee 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 L3S1 profile and referred for a Medical Evaluation Board (MEB). The bilateral knee pain, characterized as “bilateral knee pain,” “degenerative medial meniscal tear right knee,” and “tendonitis, left knee” were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. The MEB also identified and forwarded one other condition for PEB adjudication. The Informal PEB adjudicated “bilateral knee pain with degenerative meniscal disease in the right knee and tendonitis in the left” as unfitting, rated 10%, with likely application of the US Army Physical Disability Agency (USAPDA) pain policy. The remaining condition was determined to be not unfitting and therefore not rated. The CI made no appeals and was medically separated.


CI CONTENTION: “I Love the Army this was not fair found unfit I did oath reenlistment 23 August 2002 17 years military service E6 (promotable)CY04SFC RC/AGR Board. The MEB/PEB made me ineligible for my promotion 92F4 denied and ineligible for retirement this was not fairness.”


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 applicant. The ratings for conditions meeting the above criteria are addressed below. In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process. The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference. The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130. Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

The Board acknowledges the CI’s contention that he was ineligible for promotion due to the PEB proceedings. The Board does not have the jurisdiction to offer remedy in reference to Service decisions of this nature. That authority resides with the BCMR. 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.

The Board also acknowledges the CI’s implied contention for service ratings of a MH condition noted above which was not adjudicated by the PEB. Service disability compensation may only be offered for those conditions that cut short the member’s career. Should the Board judge that a MH condition was most likely incompatible with military service, a service rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.


 RATING COMPARISON :

Service IPEB – Dated 20050501
 VA - (2.5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
B Knee Pain w/Degenerative Meniscal Disease (R Knee) and Tendonitis (L Knee) 5099-5003 10% Residuals Left Knee w/Possible Meniscal Tear 5099-5024 10% 20050916
Right Knee Injury, S/P Surgery 5259 10% 20050916
Depression Not Adjudicated Depressive and Anxiety Disorder 9434 10% 20050916
Other x 1 (Not is Scope)
 Other x 14
Rating: 10%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 200 60203 ( most proximate to date of separation [ DOS ] ).


ANALYSIS SUMMARY:

Bilateral Knee Pain Condition. The PEB combined the right and left knee pain conditions under a single disability rating, coded analogously to 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 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.

An injury to the right knee in 2002 ultimately led to arthroscopic surgery for medial and lateral meniscal tears in May 2003. Persistent pain resulted in a second arthroscopy in October 2003, at which time partial resection of the posterior horn of the medial meniscus was accomplished. Although his pain improved post-operatively, medical management could not improve the condition sufficiently to allow resumption of strenuous physical activities. The available service treatment records revealed an initial complaint of left knee pain (not associated with injury) in November 2004, at which time a 2-week history of bilateral knee pain was reported.

The commander’s statement dated 27 January 2005 (5 months prior to separation) indicated that the right knee interfered with his MOS requirements. There was no mention of duty impairment from the left knee. On 18 February 2005 (4 months prior to separation), the narrative summary (NARSUM) examiner reported that the CI was experiencing persistent right knee pain and swelling. Prolonged standing was difficult, he was unable to run and he could not walk longer than 5 minutes. He experienced occasional locking of the knee. Because he compensated by placing more weight on the left knee, he reportedly also developed left knee pain with prolonged standing. Swelling of the left knee was occasional, but he denied locking or giving way. Examination showed an antalgic gait. Mild atrophy of the right inner thigh muscle was present and he displayed difficulty performing a squat. All ligaments were stable. Left knee examination showed intact ligaments and some tenderness. The MEB separation examination on 9 March 2005 showed bilateral knee tenderness and painful motion, intact ligaments and no swelling. The profiling section of the separation exam (DD Form 2808) listed right knee pain, but did not identify left knee pain. A magnetic resonance imaging of the left knee on 20 May 2005 (a month prior to separation) revealed a tear of the posterior horn of the medial meniscus.

At the VA Compensation and Pension (C&P) exam on 16 September 2005 (2.5 months after separation), the CI complained of right knee pain and swelling that was exacerbated by standing and walking for prolonged periods. His left knee was “getting affected too because he is preferring it.” The left knee pain was present for 3 years and caused difficulty stooping, squatting and kneeling. Activities such as pushing a lawn mower, gardening and climbing stairs were difficult because of his knees. Examination showed a normal gait and there was no use of assistive devices or braces. Swelling was absent, and there was no additional limitation after repetitive motion. Bilateral knee X-rays were normal. At a VA orthopedic evaluation on 15 March 2006 (8.5 months after separation) the CI complained of pain and stiffness in both knees. He denied locking. He ambulated with a cane and wore a brace on the right knee.

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.
invalid font number 31506
Knee ROM
 (Degrees)
 PT ~ 4 Mos. Pre-Sep VA C&P ~2.5 Mos. Post-Sep
Right Left Right Left
Flexion (140 Normal)
 135, 135, 133 130, 135, 135 140 140
Extension (0 Normal)
 10* 10* 0 0
Comment
 +Painful motion +Crepitus, painful motion** +Painful motion**
§4.71a Rating
 10% 10% 0% or 10% 0% or 10%
             *Hyperextension
                  **Pain occurred at 140 degrees

The Board directs attention to its rating recommendation based on the above evidence. The PEB’s DA Form 199 reflected application of an analogous 5003 code for rating the right and left knee pain conditions together at 10%. The VA assigned a 10% rating for the right knee condition under the 5259 code (cartilage, semilunar, removal of, symptomatic); and a 10% rating for the left knee under an analogous 5024 code (tenosynovitis) for painful motion. Regarding the right knee condition, members agreed that the functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to perform his MOS; and, accordingly a separate rating is recommended. Although compensable limitation of motion was not present on any exam, Board members agreed that there was sufficient evidence of painful motion to warrant a 10% rating IAW §4.59 (painful motion). The Board considered routes to a higher rating, but found no evidence of recurrent dislocation or lateral instability or of dislocated semilunar cartilage (with frequent episodes of “locking,” pain, and effusion into the joint) to warrant a 20% rating under the 5257 or 5258 codes. 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 right knee pain condition, coded 5099-5003.

In analyzing the intrinsic impairment for appropriately coding and rating the left knee condition, the Board is left with a questionable basis for arguing that it was indeed independently unfitting. The left knee was not profiled and was not implicated in the commander’s statement. After due deliberation, the Board agreed that evidence does not support a conclusion that left knee pain, as an isolated condition, would have rendered the CI incapable of continued service within his MOS and, accordingly cannot recommend a separate rating for it.
Contended Mental Health Condition. The service treatment record was silent regarding any MH symptoms until March 2004 (15 months prior to separation) when the applicant reported to an MH provider that he was feeling “depressed at times” related to knee issues and stresses associated with separation from his children. At that time he endorsed depression and sleep problems, but denied nightmares, memory problems or irritability. Diagnoses of adjustment disorder with depressed mood and depression were rendered. At a follow-up visit on 20 July 2004 (11 months prior to separation) the applicant reported “flashbacks and nightmares of what he saw” during the Gulf War. No other symptoms were described, and a diagnosis of posttraumatic stress disorder (PTSD) was rendered.

There were several subsequent visits to an MH provider (the last in October 2004, 8 months prior to separation) which noted sadness related to his children, limitations imposed by his knee issue and frustrations with MEB process. Mood, affect and insight were consistently reported to be normal and suicidal or homicidal ideations were absent. The commander’s statement commented on the knee condition as the only duty impairment. It was noted that the applicant “performs his duties exceptionally well which is reflected by his recent selection to promotion to Sergeant First Class…”

At the MEB separation exam on 9 March 2005 (3.5 months prior to separation), the applicant reported that he had been evaluated and treated for depression and elevated stress levels. The examiner listed a diagnosis of depression on the DD Form 2807 and the attached profiling section. An S1 profile was assigned. On the Report of Medical Assessment dated 9 March 2005 (3.5 months prior to separation) the applicant only indicated that his knees limited performance of his duties, and that hypertension and osteoarthritis were his health-related concerns.

At the VA C&P exam on 16 September 2005 (2.5 months after separation) the applicant stated that during the Gulf War in 1990 he was not injured, but he did witness “a lot of death and destruction.” He reported distressing dreams and difficulty falling asleep after returning from Desert Storm, but functioned fairly well without significant problems afterward. In the context of knee surgery in 2003 however, he became depressed; he worried about his military career and was stressed over conflict with his first wife. He became angry, irritable, depressed and experienced sleep difficulty. Counseling with the military MH provider helped his symptoms somewhat. He denied psychiatric hospitalization or emergency care, or treatment with psychotropic medication. Current symptoms were sleeping difficulty, irritability, anger and feeling depressed. He endorsed nightmares and hypervigilance “from time to time” but denied intense psychological or physiological responses to situations that evoked war memories and denied avoidance behaviors. The examiner’s Axis I diagnoses were depressive disorder and anxiety disorder, and stated that the criteria for PTSD were not present. A Global Assessment of Functioning was 60-65, connoting mild to moderate symptoms or impairment. The examiner stated that the applicant was able to function “fairly well while he was in the service,” and that psychiatric symptoms were not the cause for separation.

The Board considered the appropriateness of changes in the MH diagnoses, PEB fitness determination; and if unfitting, whether the provisions of VASRD §4.129 were applicable, and a disability rating recommendation in accordance with VASRD §4.130. Because the separation examination listed a diagnosis of depression, but the NARSUM, the MEB and the PEB listed no MH diagnosis, the Board concluded the MH diagnosis was eliminated in the disability evaluation process and therefore met the inclusion criteria in the Terms of Reference of the MH Review Project.

The Board next considered whether any mental condition was unfitting for continued military service. The Board’s threshold for recommending a not-unfit determination requires a preponderance of evidence. All Board members agreed that evidence of the record reflected minimal occupational impairment on the basis of the MH related symptoms. No MH condition was profiled, implicated in the commander’s statement or judged to fail retention standards. This was reviewed and considered by the Board. There was no performance based evidence from the record that any MH 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 determination of unfit for any MH condition; and therefore, no 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 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 right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003. In the matter of the left knee pain condition, the Board unanimously agrees that it cannot recommend a finding of unfit for additional disability rating. In the matter of any contended MH condition, the Board unanimously recommends no additional disability rating. There were no other conditions within the Board’s scope of review for consideration.


RECOMMENDATION: The Board 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
Right Knee Pain 5099-5003 10%
Left Knee Pain Not Unfitting
RATING
 10%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131210, w/atchs
Exhibit B. Service Treatment Record
Exhibit C. Department of Veterans’ Affairs Treatment Record









                 
XXXXXXXXXXXXXXXXXX
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 XXXXXXXXXXXXXXXXXX, AR20140019489 (PD201302095)


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 description without modification of the combined rating or 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                                                  XXXXXXXXXXXXXXXXXX
                                                      Deputy Assistant Secretary
                                                      (Army Review Boards)

CF:
( ) DoD PDBR
( ) DVA

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