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AF | PDBR | CY2013 | PD2013 02099
Original file (PD2013 02099.rtf) Auto-classification: Approved
RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX         CASE: PD1302099
BRANCH OF SERVICE: Army  BOARD DATE: 20140612
SEPARATION DATE: 20051231


SUMMARY OF CASE: Data extracted from the available evidence of record reflects that this covered individual (CI) was an Army National Guard SGT/E-5 (62H/Concrete & Asphalt Equipment Operator) medically separated for chronic 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 L3 profile and referred for a Medical Evaluation Board (MEB). The retropatellar pain syndrome, bilateral knees condition, characterized as “medically unacceptable” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501. No other conditions were submitted by the MEB. The PEB adjudicated “chronic bilateral knee pain” as unfitting, rated 10%, citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy. The CI made no appeals and was medically separated.


CI CONTENTION: The CI elaborated no specific contention in his application.


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 bilateral knee pain condition is addressed below. In addition, the CI was notified by the Service that his case qualifies for review of his mental health (MH) condition in accordance with the Secretary of Defense directive for a comprehensive review of members who were referred to a disability evaluation process between 11 September 2001 and 30 April 2012, and whose MH diagnoses were unfavorably changed or eliminated during that process. In response to said notification, it is presumed that the CI has elected review by this Board for the MH condition. Accordingly, the case file was reviewed regarding unfavorable diagnosis change, fitness determination, applicability of VA Schedule for Rating Disabilities (VASRD) §4.129 and rating (via §4.129 or §4.130 as appropriate) of any MH condition. The rating for the unfitting knee pain and the above considerations for the MH condition are 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 :

Service IPEB – Dated 20051121
 VA - (5 Mos. Post-Separation)
Condition
 Code Rating Condition Code Rating Exam
Chronic Bilateral Knee Pain 5099-5003 10% Patellar Tendonitis with Degenerative Joint Disease, Left Knee 5010 10% 20060523
Patellar Tendonitis with Degenerative Joint Disease, Right Knee 5010 10% 20060523
PTSD Not Addressed Post-traumatic Stress Disorder Also Claimed as Depression and Memory Loss 9411 30%* 20080816
No Other Items in Scope
 Other x 7 (Not in Scope)
Combined: 10%
 Combined: 50%
Derived from VA Rating Decision (VA RD ) dated 200 70326 ( most proximate to date of separation [ DOS ] ).
*Not service connected by first VARD 20070326; 30% rating by VARD 20080922, effective day after separation


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 implied contention for ratings of a MH condition, as noted above. Disability compensation may only be offered for those conditions that cut short the member’s service career. Should the Board judge that a mental health condition was most likely incompatible with military service, a disability rating IAW the VASRD, based on the degree of disability evidenced at separation, will be recommended.

Chronic Bilateral Knee Pain Condition. The PEB combined the left and right knee conditions under a single service 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 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.

VA records show that the CI was service-connected for bilateral knee tendonitis prior to entering his final term of active duty service in 2003. The CI was medically evacuated from Iraq in May 2004 due to chronic, bilateral knee pain that was worse over the previous 6 months. There was no history of injury. The left knee was worse than the right; pain was located over the medial aspect of each knee. Aeromedical evacuation notes indicated that he ambulated without difficulty; a follow-up note in June 2004 also reported normal ambulation. X-rays showed no joint abnormalities and a magnetic resonance imaging study of the left knee was normal. Orthopedic evaluation rendered a diagnosis of patellofemoral pain syndrome. Multimodality physical therapy (PT), pain medications and a joint injection did not sufficiently relieve the pain.

At a VA PT visit on 24 September 2004 (4 months after medical evacuation and 15 months prior to separation), the therapist indicated that the CI used a cane because the left knee buckled 2-3 times per day. He was observed to ambulate with decreased weight-bearing on the left lower extremity.

At the MEB separation exam on 31 March 2005 (9 months prior to separation), the CI denied any history of knee injury. Examination noted him to walk slowly with a limp and to use a cane. The narrative summary (NARSUM) on 9 November 2005 (2 months prior to separation) reported that the CI suffered from chronic bilateral knee pain for 10 years and that the left knee was worse than the right. He was able to walk one-half to one mile and perform wall squats, but was unable to run due to his knee condition. He used a cane and knee braces for ambulation assistance. Pain in each knee was described as 6/10 in severity (0-10 scale) at rest and 8/10 in severity with prolonged walking or sitting with knees flexed. Examination showed no muscle atrophy of the lower extremities. At a primary care clinic visit on 10 November 2005, the CI reported that he was currently pain free.

At the VA Compensation and Pension (C&P) exam performed 5 months after separation, the CI reported that his knee pain condition had existed for 17 years and was due to running in boots during physical training. Although the pain was described as “constant” it was noted to be elicited by physical activity or to appear “by itself.” Pain medication, ice or heat alleviated the pain. He could function with medication and the condition did not cause incapacitation. Examination noted use of a cane and knee brace, although gait was described as “within normal limits.” There was no swelling, tenderness or guarding of movement of either knee. Knee ligaments were intact bilaterally. Pain occurred in each knee at the limit of complete flexion. X-rays reportedly showed mild osteoarthritis of each knee. The examiner’s diagnosis was bilateral degenerative joint disease. 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 ~ 1 Mo. Pre-Sep VA C&P ~ 5 Mo s . Post-Sep
Left Right Left Right
Flexion (140 Normal)
 120 114 140 140
Extension (0 Normal)
 0 5 0 0
Comment
 +Painful motion +Painful motion
§4.71a Rating
 0% or 10%* 0% or 10%* 0% or 10%* 0% or 10%*
           *Conceding §4.40 (functional loss) or §4.59 (painful motion)

The Board directs attention to its rating recommendation based on the above evidence. The PEB form reflected application of the USAPDA pain policy for rating both knees together at 10%. The VA assigned separate 10% ratings for each knee under a 5010 code (arthritis due to trauma) with apparent application of §4.59 (painful motion), since ROM was normal at the C&P exam. The Board agreed that it would be overly speculative to conclude that either knee was not unfitting. Each would have likely rendered the CI incapable of continued service within his MOS; and, accordingly each condition merits separate service ratings.

The Board considered separate ratings of 10% for each knee under 5260 (limitation of flexion), since mild non-compensable limitation by the NARSUM examiner was evidenced and pain with motion (§4.59) could be conceded. Alternatively, Board members deliberated if there was sufficient evidence of pain with use (§4.40; functional loss) to justify a minimal compensable rating under §4.71a, also leading to separate 10% joint ratings. In this regard, it was debated that the CI used a cane and brace. Ultimately, Board members agreed that application of §4.40 or §4.59 was warranted and therefore a 10% rating for each knee was justified. 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 and 10% for the left knee pain condition, coded 5099-5003.

Contended Mental Health Condition. As previously elaborated, it is presumed that the CI has elected review by the PDBR for a MH condition. A review of the available service treatment record (STR) showed clinical entries beginning in September 2004 that listed a diagnosis of chronic posttraumatic stress disorder (PTSD). However, a formal psychology evaluation on 17 March 2005 (9.5 months prior to separation) only listed “psychological factors affecting physical condition” as a diagnosis. At that evaluation, the CI endorsed nightmares every 2 weeks, hypervigilance, memory problems and troubling thoughts since he returned from deployment. He reported that he witnessed several traumatic events and operated in a life-threatening environment, but denied intense fear, helplessness or horror on those occasions. He denied being upset by problems at home or at work and denied interpersonal relationship problems. He was taking one psychotropic medication.

The MEB separation examiner on 31 March 2005 stated that the CI was being treated for PTSD. However, on the DD Form 2807 the CI marked “no” for “nervous trouble of any sort” and “depression or excessive worry.” On the attached profiling section of the DD Form 2808, the examiner listed PTSD and assigned an S3 profile. A note by a psychiatrist on 20 April 2005 indicated that some PTSD symptoms were reported, but the diagnosis was anxiety disorder not otherwise specified. The commander’s statement on 27 April 2005 (8 months prior to separation) implicated only orthopedic issues as a limitation to performance of duties. At an evaluation by another psychiatrist on 11 May 2005 (7.5 months prior to separation), the CI stated that his only complaint was disrupted sleep, which was in large part due to knee pain. He endorsed occasionally checking to be sure his doors were locked and occasionally thinking about Iraq experiences, “but denies that this is problematic.” There were no avoidance symptoms and the CI was able to speak freely about all of his experiences without distress. Mental status exam was normal. The examiner concluded that the previous diagnosis of PTSD could not be substantiated. Multiple weekly group therapy notes through August 2005 (4 months prior to separation) indicated the CI consistently shared in the group, related well to others and displayed good group participation. The assigned diagnosis was consistently anxiety disorder. The final permanent profile on 7 October 2005 only listed knee pain; no MH condition was identified and an S1 profile was assigned. The NARSUM examiner on 9 November 2005 (2 months prior to separation) listed adjustment disorder in the past medical history and noted that the CI was taking a psychotropic medication; but there was no discussion of current mental symptoms or formal psychiatric diagnoses. The examiner noted a current S1 profile.

The Board considered the appropriateness of changes in the MH diagnoses, PEB fitness determination; and if unfitting, a disability rating recommendation in accordance with VASRD §4.130. Because the separation examination listed a diagnosis of PTSD, but the MEB and the PEB did not list any 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, regardless of diagnosis, was unfitting for continued military service. The Board’s threshold for recommending a not-unfit determination requires a preponderance of evidence. All Panel members agreed that evidence of the record reflected minimal occupational impairment on the basis of the MH related symptoms. The STR described symptoms that were relatively well controlled with medication and counseling and the commander’s statement did not implicate a MH condition as a cause of duty impairment. At no time during the applicant’s military service did he require a psychiatric hospitalization or emergency care. No MH condition was permanently profiled or was judged to fail retention standards by the MEB. There was no indication from the record that the MH condition significantly interfered with satisfactory duty performance. The Board therefore concluded that there was insufficient evidence that any MH condition rose to the level of being unfitting at the time of separation. 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 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. As discussed above, PEB reliance on the USAPDA pain policy for rating chronic 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 chronic bilateral knee pain condition, the Board unanimously recommends that it be adjudicated for two separate conditions: In the matter of the chronic left knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003. In the matter of the chronic right knee pain condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003. In the matter of any contended MH condition, the Board unanimously agrees that it cannot recommend it for 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
Chronic Left Knee Pain 5099-5003 10%
Chronic Right Knee Pain 5099-5003 10%
COMBINED (w/ BLF)
 20%


The following documentary evidence was considered:

Exhibit A. DD Form 294, dated 20131023, 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 , AR20140016127 (PD201302099)
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 rating to 20% without 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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