RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXX 	CASE NUMBER:  PD1300053
BRANCH OF SERVICE:  Army	BOARD DATE:  20130904
Separation Date:  20030423

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (35J/Computer Telecommunication Repair) medically separated for bilateral retropatellar pain syndrome (RPPS).  The CI began complaining of bilateral anterior knee pain in April 2000 after finishing jump school and was initially seen by the orthopedic department in August 2001 and given the diagnosis of bilateral RPPS.  He was treated conservatively without improvement in his symptoms.  The CI was determined to be fit for duty after an evaluation in November 2001 and was given a P2 profile.  In November 2002, another fitness for duty evaluation was accomplished, resulting in the CI being given a permanent L3 and referred for a Medical Evaluation Board (MEB).  The MEB forwarded “bilateral knee retro patellar pain syndrome” and “status post left Achilles tendon repair” to the Physical Evaluation Board (PEB) for adjudication IAW AR 40-501.  The MEB also identified and forwarded three other conditions, hypertension, mild restrictive ventilatory defect, and status post (s/p) umbilical hernia repair, as meeting retention standards.  The PEB adjudicated “bilateral retro patellar pain syndrome” as unfitting, rated 0% with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have medical issues which include both Achilles tendons reconstructed cause from time.”

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 unfitting bilateral RPPS and the requested s/p left Achilles tendon repair condition, which was determined to be not unfitting by the PEB, are both within the Board’s scope of review and are addressed below.  The other requested conditions, right Achilles tendon repair, hypertension, mild restrictive ventilatory defect, and s/p umbilical hernia repair are not within the Board’s 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.

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.

RATING COMPARISON:

Service IPEB – Dated 20030213	VA* - 6 weeks Pre-Separation	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral RPPS	5099-5003	0%	Left Knee RPPS	5299-5014	10%	20030311	
			Right Knee RPPS	5299-5014	10%	20030311	
S/P Left Achilles Tendon Repair	Not Unfitting	S/P Left Achilles Tendon Repair	5271	10%	20030311	
		Scar s/p Left Achilles Tendon Repair	7804	10%	20030311	
Hypertension	Not Unfitting	Hypertension	7101	0%	20030311	
Mild Restrictive Ventilatory Defect	Not Unfitting	Mild Restrictive Ventilatory Defect	6699-6602	NSC	20030311	
S/Pp Umbilical Hernia Repair	Not Unfitting	No VA Entry	
No Additional MEB/PEB Entries	Other x8	30%	20030311	
Combined:  0%	Combined:  60% (w/ Bilateral Factor)	
*Derived from VA Rating Decision (VARD) dated 20030331 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The PEB rated the bilateral RPPS condition under the single analogous code 5099-5003 arthritis, degenerative (hypertrophic or osteoarthritis) code.  This coding approach is countenanced by AR 635-40 (B.24 f.), but IAW DoDI 6040.44 the Board must apply only VASRD guidance to its recommendation.  The Board must therefore apply separate codes and ratings in its recommendations if compensable ratings for each joint 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 reasonably justified as unfitting in and of itself, with the caveat that the final recommendation may not produce a lower combined rating than that of the PEB.

Bilateral RPPS Condition.  There were two range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation; as summarized in the chart below.

Knee ROM (Degrees)	NARSUM 3 Mos. Pre-Sep	VA C&P 1.5 Mos. Pre-Sep	
	Left	Right	Left	Right	
Flexion (140° Normal)	130°	130°	140°	140°	
Extension (0° Normal)	0°	0°	0°	0°	
Comment 	No joint line tenderness or instability; Good patellar mobility; Mild tenderness to palpation (TTP) over lateral patellar facet.; Neuro-vascularly intact distally to motor & light touch; “pain made worse by …  climbing stairs, running, squats, …”	Discomfort bilaterally from 130 to 140; No soft tissue swelling, point tenderness, or joint effusion; No ligamentous instability; “chronic knee pain with activities”	
§4.71a Rating	0% - 10% *	0% - 10% *	10% **	10%**	
* PEB rated 0% combined; 10%rating derived from bilateral pain reported by CI and supported by pain-induced visits in STR.
**Rating derived from bilateral pain noted during ROM evaluation and from bilateral pain reported by CI.

After the CI completed jump school training, he ran nearly every day for physical training and developed bilateral knee pain.  Throughout 2000, he followed with his medical provider for bilateral knee pain with an antalgic gait, was diagnosed with bilateral RPPS and treated with non-steroidal anti-inflammatory drugs (NSAIDs).  The RPPS continued throughout 2001 and the CI underwent extensive physical therapy (PT).  He followed up with orthopedics and had two left knee X-rays which were normal.  A bone scan demonstrated moderately severe stress changes and/or degenerative changes in both knees and ankles.  In October 2001 the CI was placed on a permanent L2 profile for bilateral anterior knee pain with additional restrictions of no airborne units, no crawling, jumping kneeling or stooping.  The CI was followed by the Medical clinic in 2002 for chronic RPPS exacerbated by activities and a poor response to NSAIDs.  The MEB narrative summary (NARSUM) exam accomplished approximately 2 months prior to separation indicated that the examiner based his exam on this focused exam and a general physical exam dated 21 December 2001.  The examiner noted that the CI had chronic bilateral knee pain despite treatment with PT, NSAIDs, narcotics, activity modification and profiling.  The pain worsened with standing for long periods, climbing stairs, and running, squatting and walking on uneven terrain.  The MEB NARSUM exam physical findings are summarized in the chart above.  The commander’s statement indicated that the CI had undergone numerous temporary profiles for his knee pain and had received extensive PT, orthopedic and pain management treatment however he was still unable to perform strenuous physical labor and perform his Military Occupational Specialty duties.  The VA Compensation and Pension (C&P) exam accomplished approximately a month prior to separation documented that the repetitive motion aggravated the CI’s knees and flare-ups were usually associated with stairs and repetitive motions.  The examiner opined bilateral RPPS with mild functional impairment.  The C&P exam physical findings are summarized in the chart above.

The Board directs attention to its rating recommendation based on the above evidence.  The PEB applied the analogous code 5099-5003, degenerative arthritis, and rated at 0%.  The VA coded each knee individually and used the analogous code 5999-5014 as osteomalachia and rated at each one at 10%.  The service treatment record (STR) contained an equal amount of documentation relative to the left or right knee with the majority of documentation pertaining to the bilateral knee pain with activities.  The CI was profiled for a bilateral anterior knee pain.

The two prior to separation exams differ slightly and each, taken separately, steer one to different conclusions.  There are no unilateral distinctions with regards to clinical features or fitness considerations in either exam.

The NARSUM exam pathology, abnormal bone scan, and disability picture support a bilateral rating under code 5099-5024 (tenosynovitis).  There were no episodes of incapacitation documented.  Code 5024 defaults to 5003 rating criteria (without regard to radiographic findings), supporting a 10% rating for two major joints thus providing  VASRD §4.71a latitude for a bilateral rating.  The NARSUM presents questionable support for separate compensable ratings of each knee; as there was insufficient evidence of objectively confirmed painful motion.  Further, the majority felt that the ROM measurements and text could be interpreted as normal for that examiner.

The painful motion noted during the C&P exam and the pathology and disability picture portrayed by the examiner support compensable ratings for each knee (two unilateral ratings) under code 5099-5003 with §4.59 for Left and Right RPPS.

Member consensus found the NARSUM to be more probative, and therefore found that there were insufficient grounds for recommending separate right and left knee disability ratings in this case.  Considering the totality of the evidence and with deference to reasonable doubt, the Board majority recommends a disability rating of 10% for the bilateral knee condition under code 5099-5024.

S/P Left Achilles Tendon Repair Contended PEB Condition.  The contended condition adjudicated as not unfitting by the PEB was s/p left Achilles tendon repair.  The Board’s first charge with respect to this condition is an assessment of the appropriateness of the PEB’s fitness adjudications.  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.  The CI ruptured his left Achilles tendon while walking up stairs in December 2001 and underwent a tendon repair later that same month.  He was given a temporary L3 profile for the immediate post-surgical recovery period; he was never given a permanent profile for this condition.  The commander’s statement indicated that the CI suffered from feet and ankle pain with no specific mention of duty limitation caused by Achilles tendon pain.  The NARSUM examiner documented that the CI’s chief complaint was related to his bilateral knee pain; there was no mention of left ankle/Achilles pain.  The left ankle physical exam findings of dorsiflexion limited to 10 degrees (normal 20 degrees).  The C&P examiner documented that the CI had daily pain with activities in all joints but there was no specific documentation as to left ankle pain.  The examiner noted physical findings of a normal gait and left ankle Achilles tendon thickening with 17 degrees of dorsiflexion and 40 degrees of plantar flexion (normal 45 degrees).  There was mild discomfort with rotation movements of the left ankle and the CI wore orthotic inserts for his boots.  It is also noteworthy that the CI was able to complete a full Bruce protocol treadmill stress test 4 months prior to separation; he exercised for over 18 minutes on the treadmill with the grade elevated up to 16%.  Although the condition was forwarded by the MEB as failing retention standards, the Board could find no evidence in the treatment records of objective performance based criteria for concluding that the condition was independently unfitting.  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 s/p left Achilles tendon repair; and, therefore, no additional 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.  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 bilateral RPSS, the Board by a vote of 2:1 recommends that the bilateral knee condition be adjudicated together under code 5099-5024 with a disability rating of 10% IAW VASRD §4.71a.  The single voter for dissent (who recommended a disability rating of 10% for each knee individually coded 5099-5003 IAW VASRD §4.71a) submitted an appended minority opinion.  In the matter of the contended s/p left Achilles tendon repair condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  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	
Bilateral Retro Patellar Pain Syndrome	5099-5024	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130108, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

SFMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(TAPD-ZB / xxxxxxxxxxx), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for xxxxxxxxxxxxxxxxxxxx, AR20130021886 (PD201300053)

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 10% 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						     

MINORITY OPINION:

The preponderance of exam data and evidence within the STR document bilateral knee problems.  It is reasonable that both knees are unfit; however, the two prior to separation exams differ.  The question lies in which is more probative and which best reflects the CI’s status at separation.

The NARSUM dictated 3 months prior to separation, noted “full motion” with measured motion of 0-130 degrees (normal 0-140 degrees), but no painful motion, no swelling or spasm and specifically mentions that there was no suggestion of arthropathy.  The C&P performed 6 weeks prior to separation, noted full ROM but with pain starting at 130 degrees, no swelling, effusion, point tenderness or instability.  Both include CI reports of pain during motion activities and this painful motion is further substantiated throughout the STR.

The preponderance of exam data and evidence within the STR met the 10% criteria rating for both the right and left knee separately with application of VASRD principle §4.59 painful motion.  Bilateral painful motion was reported by the CI in virtually every STR entry concerning his knees and at both the NARSUM and C&P exams and was recorded by the C&P examiner during ROM testing.  While one may choose to dismiss the CI’s reports of pain, you cannot dismiss the C&P examiner’s report.

Furthermore, the minority found the C&P exam to be more probative than the NARSUM exam because it was more proximate as well as prior to the actual day of separation.

Lastly, the minority opines that even if one were to find both exams equally probative and was to dismiss the CI reports, §4.7, Higher of two evaluations, would direct one to select the higher rating in favor of the CI.

I strongly recommend a disability rating of 10% for each knee individually coded 5099-5003 IAW VASRD §4.59 and §4.7 as noted below.

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	
Left RPPS	5099-5003	10%	
Right RPPS	5099-5003	10%	
COMBINED (w/ BLF)	20%