RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 	CASE:  PD1300032
BRANCH OF SERVICE:  ARMY		BOARD DATE:  20140410
SEPARATION DATE:  20020107

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SSG/E-6 (13C30/Tactical Automated Fire Control Specialist) medically separated for osteoarthritis, both knees, right ankle and bilateral midfoot, as single combined unfitting condition.  The CI had a history of right knee pain dating back to 1997 and left knee pain dating back to 2000.  His right ankle problems date back to 1994 and his bilateral foot issues date back to 1993.  The bilateral knee, right ankle and bilateral midfoot conditions 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 for his knees and referred for a Medical Evaluation Board (MEB).  The MEB forwarded five conditions to the Physical Evaluation Board (PEB) for adjudication IAW AR 40-501 as reflected in the rating chart below.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated four of five conditions as single combined unfitting condition (osteoarthritis, both knees; right ankle and bilateral midfoot), rated 20% IAW AR 635-40.  The remaining condition (bilateral pes cavus foot deformity) was determined to be not unfitting and was not rated.  The CI non-concurred the PEB’s adjudication, but waived a formal hearing and was medically separated.

CI CONTENTION:  “Conditions of joint degeneration should have been considered at a higher percentage to reflect actual condition reflected in VA compensation of 70% (ie: knee replacement 1 Dec 2010)”.

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 bilateral knee, bilateral foot and right ankle conditions are addressed below; no additional conditions are within the Board’s defined DoDI 6040.44 purview.  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 20010830	VA - (Exam ~ 2.5 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Osteoarthritis, Both Knees	5003	20%	Degenerative Joint Disease Right Knee w/ Medial Meniscus Degeneration & Anterior Cruciate Ligament Tear	5099-5010	10%	20011016	
			Degenerative Joint Disease, Left Knee	5010	10%	20011016	
Osteoarthritis, Right Ankle 			Degenerative Joint Disease, Riqht Ankle	5010	10%	20011016	

Osteoarthritis, Bilateral Midfoot
			Right Midfoot Degenerative Joint Disease w/ Pes Cavus	5099-5003	0%	20011016	
			Left Midfoot Degenerative Joint Disease w/ Pes Cavus, Etc	5099-5003	0%	20011016	
Bilateral Pes Cavus Foot Deformity	Not Unfitting	See the Midfoot Conditions Above				
No Additional MEB/PEB Entries	Other x 9	20011016 	
Combined:  20%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20020114 (most proximate to date of separation [DOS]).

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 Disability Evaluation System 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, operating under a different set of laws.

The PEB combined bilateral knee, right ankle and bilateral midfoot degenerative joint disease as the single unfitting and solely rated condition, coded 5003 (degenerative arthritis).  Although this approach complies with AR 635.40 (B.24 f.), the Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself.  Not uncommonly, this approach by the PEB reflects its judgment that the constellation of conditions was unfitting and, that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting.  Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Bilateral Knee Condition.  Review of the service treatment record (STR) noted visits beginning in 1997 for intermittent right knee pain that worsened in frequency and severity over the next 2 years.  A magnetic resonance imaging study in May 1999 showed findings consistent with tears of the anterior and posterior cruciate ligaments and degenerative joint changes.  Subsequent orthopedic evaluation determined that the knee was not functionally unstable.  Surgical intervention was discussed in 2001 but not undertaken; it was thought that total knee replacement would be required in the future, but was a premature option at that time.  The first visit on record for left knee pain was in October 2000; there was no history of trauma.  Left knee X-rays in April 2001 were normal.

The commander's statement noted that his "knees swell when he accomplishes only simple tasks associated with field problems."  The narrative summary, dictated 30 July 2001 (5 months prior to separation) noted a chief complaint of bilateral knee pain, right greater than left.  The right knee pain reportedly began subsequent to an injury while playing soccer.  Both knees were bothersome on a daily basis.  Pain was "somewhat controlled" with narcotic and anti-inflammatory medications, and with use of a brace and cane.  Symptoms were exacerbated with prolonged sitting or standing, and walking greater than one-quarter mile.  Giving way of the right knee was reported, but not of the left.  Physical examination showed joint swelling of the right knee, but not of the left knee.  Detailed ligamentous examination was normal bilaterally.  The exam was silent regarding gait and the presence of a brace or cane.  The examiner stated that left knee X-rays showed early degenerative changes.

At the VA Compensation and Pension (C&P) exam performed 3 months prior to separation, the CI reported using a brace on the right knee and a "support" on the left knee.  Examination showed an antalgic gait with guarding of the right lower extremity.  Mild swelling of the right knee was present.  There was no ligament instability detected.  At a pain management clinic evaluation on 13 November 2001, 2 months prior to separation, it was noted that the CI was being medically boarded for knee pain (right greater than left).  The CI was observed to have an antalgic gait (abnormal gait due to pain).  The assessment was right knee arthritis, for which medication recommendations were given.  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 ~ 5 Mos. Pre-Sep	VA C&P ~ 3 Mos. Pre-Sep	
	Left	Right	Left	Right	
Flexion (140 Normal)	120	110	120	100	
Extension (0 Normal)	0	0	0	0	
Comment	+crepitus, tenderness	+tenderness	+crepitus, tenderness, painful motion	+crepitus, tenderness, painful motion	
§4.71a Rating	10%*	10%*	10%*	10%*	
	     *Conceding separate ratings and §4.59 (painful motion)

The Board directs attention to its rating recommendation based on the above evidence.  The Board first considered if each knee condition, having been de-coupled from the combined PEB adjudication, remained independently unfitting as established above.  The right knee was clearly worse than the left and members unanimously agreed it warranted an unfit determination.  Although compensable limitation of right knee motion was not present on any exam, Board members agreed there was sufficient objective evidence to support a 10% rating under §4.59 (painful motion).  The Board agreed there was no evidence of ligament instability or dislocated cartilage to warrant a higher rating under the 5257 code (knee, other impairment of) or 5258 code (cartilage, semilunar, dislocated).  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 osteoarthritis condition, coded 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.  There was little information about the left knee in the clinical record, it did not present to clinical attention until just prior to the MEB process and was not included in a profile until after the MEB process began.  The clinical note 2 months prior to separation directed pain management recommendations to the right knee and was silent about the left.  After due deliberation, members agreed that the evidence does not support a conclusion that the functional impairment from the left knee was integral to the CI’s inability to perform his MOS rating and, accordingly cannot recommend a separate rating for it.
Right Ankle Condition.  The available STR showed several visits for right ankle pain in 1994 from a soccer injury.  X-rays were negative for acute abnormality.  The record was otherwise silent about ankle symptoms until the MEB separation exam in April 2001, at which time the CI noted "arthritis" of the ankle.  Because of right foot pain and normal foot X-rays, a nuclear medicine study was performed in April 2001 and revealed mild right ankle findings consistent with stress or degenerative changes.  The commander's statement was silent regarding the occupational impact of any ankle symptoms.  On the DD Form 2697, Report of Medical Assessment, dated 10 April 2001 (9 months prior to separation), the CI did not specify right ankle pain as a cause of limited ability to work in his primary specialty.  An MEB addendum summary on 20 June 2001 (6.5 months prior to separation) noted a chief complaint of bilateral foot pain.  Examination revealed the use of a cane for ambulation, which the examiner attributed to knee and foot pain.  Ankle tenderness was present.  X-rays showed arthritic changes.

At the VA C&P exam performed 3 months prior to separation, the CI reported "right ankle discomfort present throughout his military tenure” associated with numerous sprains.  The CI complained of constant, daily right ankle pain that was exacerbated by activity.  Examination noted the antalgic gait that guarded the right side, but did not specify the cause of gait abnormality.  There was no ankle swelling, but tenderness of the anterior talofibular ligament was present.

The Board directs attention to its rating recommendation based on the above evidence.  As previously elaborated, the Board must first consider whether the right ankle condition remains separately unfitting, having de-coupled it from a combined PEB adjudication.  In analyzing the intrinsic impairment for appropriately coding and rating the ankle condition, the Board is left with a questionable basis for arguing that it was indeed independently unfitting.  Although the MEB forwarded a diagnosis of right ankle degenerative joint disease for PEB adjudication, the STR was silent regarding ankle complaints between 1994 and the time of the MEB process.  There was no temporary profile on record for the ankle, nor was it included in the permanent profile.  The commander's statement gave no indication that the right ankle condition interfered with performance of duties.  After due deliberation, the Board agreed that evidence does not support a conclusion that right ankle osteoarthritis, as an isolated condition, would have rendered the CI incapable of continued service within his MOS and, accordingly cannot recommend separate ratings for it.

Bilateral Foot Condition.  The CI recovered from a fracture of the left third metatarsal foot bone sustained during a road march in 1993.  Multiple visits ensued from 1994 through 1996 for left foot pain complaints variously diagnosed as plantar fasciitis, heel spur, overuse syndrome or calcaneal bursitis.  The final clinical entry prior to the MEB process for left foot pain was in January 1998, when he presented with complaints of pain for 5 days.  The STR was silent regarding right foot complaints.  The commander's statement did not specify any occupational impact from foot problems.  At the MEB addendum summary on 20 June 2001 (6.5 months prior to separation) the CI complained of a progressive history of bilateral foot pain that was not helped with inserts, shoe modification or profiling.  Examination revealed the use of a cane for ambulation, which the examiner attributed to knee and foot pain.  All joints of the feet were "essentially normal."  The arches did not display an excessive degree of deformity when weight-bearing.  The examiner stated that X-rays showed mild degenerative changes of the mid-foot bilaterally.

At the VA C&P exam performed 3 months prior to separation, the CI reported a gradual and progressive history of bilateral foot discomfort that was not due to trauma.  He complained of daily, constant bilateral foot pain that waxed and waned depending on activity.  Examination showed the previously described antalgic gait.  There was no visible foot deformity, and full active ROM of the toes was noted bilaterally.  Tenderness over the top of each foot was present.
The Board directs attention to its rating recommendation based on the above evidence.  As previously elaborated, the Board must first consider whether the bilateral foot condition remains separately unfitting, having de-coupled it from a combined PEB adjudication.  In analyzing the intrinsic impairment for appropriately coding and rating the foot condition, the Board is left with a questionable basis for arguing that it was indeed independently unfitting.  There were no temporary profiles for the left foot after 1996 and neither foot was included in the permanent profile.  The commander's statement gave no indication that any foot condition interfered with performance of duties.  After due deliberation, the Board agreed that evidence does not support a conclusion that bilateral mid-foot osteoarthritis, as an isolated condition, would have rendered the CI incapable of continued service within his MOS and, accordingly cannot recommend separate ratings for it.

The Board recognizes that the overall rating recommendation offers no benefit to the CI beyond the PEB’s bundled adjudication.  Therefore, 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 osteoarthritis of both knees, right ankle and bilateral mid-foot condition.

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 AR 635-40 for rating osteoarthritis of the knees, right ankle and bilateral feet was operant in this case and the conditions were adjudicated independently of that policy by the Board.  In the matter of the osteoarthritis of both knees, right ankle and bilateral mid-foot 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.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20121025, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				

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, AR20140019644 (PD201300032)

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						     
CF: 
(  ) DoD PDBR
(  ) DVA