RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD1300677
BRANCH OF SERVICE:  Army	BOARD DATE:  20131018
SEPARATION DATE:  20071225

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (35H/Common Ground Station Operations) medically separated for 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 bilateral knee pain condition, characterized as fails retention standards, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded five other conditions (chronic sleep apnea, migraine headaches, bilateral foot pain, lumbar degenerative disc disease and diffuse myalgia) for PEB adjudication.  The PEB adjudicated chronic bilateral knee pain as unfitting, rated at 0% with application of the US Army Physical Disability Agency pain policy.  The remaining conditions were determined to be not unfitting.  The CI appealed for an Informal Reconsideration Board, which changed the PEB finding for the bilateral knee condition rating it at 10% with application of Veterans Affairs Schedule for Rating Disabilities (VASRD) standards.  The CI was then separated.

CI CONTENTION:  “I had left and right high tibial osteotomies with cadaver bone and metal plate/screws.  I have had left and right knee arthoscopys with a left ACL tear.  I also suffered from Migraines (taking meds for it), Arthritis of left and right knee, Sleep Apnea (Use CP AP), Severe Eczema (Over 50% of my body), Severe flat feet (Use custom orthotics), Degenerative disk disease, Spinal Stenosis of the U-L5, S5 region, Undifferentiated Connective Tissue Disease, nerve damage in both legs from the left and right knee and tibial surgeries, and corneal defect (Initially classified as Corneal dystrophy, but later categorized as Corneal ectasia).  I was only rated for slight knee pain, though these other issues were diagnosed well before the MEB/PEB Board in 2007.  One of the doctors handling the case said if anything wasn't brought up during the process, they would add it after the MEB/PEB board.  I went to the board and was told to take the 10% to keep from going in to the hearing and dragging out the case.  If there was anything that came up after the board, they would be able to add it.  I was railroaded after the MEB/IPEB Board and my Commander and 1SG were pissed as well as concerned of the results. They knew I was hobbling/wheeling around on crutches and a wheelchair with two broken legs and two repaired knees, only to receive 10%.  I as well as others that served with me feel as if l have been cast off to the side.  I have served honorably, and would still be serving if not for my disabilities.  All I would like is to be treated as I should, just as I have been taught by our great US Army.”

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 condition is addressed below; as well as the not unfitting sleep apnea, migraines, bilateral foot pain, degenerative disc changes and diffuse myalgia.  No additional conditions (eczema and corneal defect) are within the DoDI 6040.44 defined purview of the Board.  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 (BCMR).

RATING COMPARISON:

Service IPEB Informal Recon – Dated 20070914	VA - (5 Mos. Pre-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	s/p Right Tibial Osteotomy with Knee Strain	5260-5010	10%	20070703 	
			s/p Left Tibial Osteotomy with Knee Strain	5260-5010	10%	20070703	
			Residual Scar, s/p Left Knee Osteotomy	7801	0%	20070703	
			Residual Scar, s/p Right Knee Osteotomy	7801	0%	20070703	
Sleep Apnea	Not Unfitting	Sleep Apnea	6847	50%	20070703	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	0%	20070703	
Bilateral Foot Pain	Not Unfitting	Bilateral Pes Planus	5299-5276	10%	20070703	
Lumbar Degenerative Disc Disease	Not Unfitting	Deferred			20070703	
Diffuse Myalgias	Not Unfitting	Not Addressed			20070703	
Not Addressed	Eczema	7806	30%	20070703	
No Additional MEB/PEB Entries	Other x8	20070703	
Combined:  10%	Combined:  70%	
Derived from VA Rating Decision (VARD) dated 20080714 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY:  The Board acknowledges the CI’s assertions that his disability disposition was rushed and unfair.  It is noted for the record that the Board has no jurisdiction to investigate or render opinions in reference to such allegations.  These issues may be addressed by the BCMR and/or the United States judiciary system.  IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board reviews medical records and other available evidence to assess the fairness of PEB rating determinations, using the 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 the time of separation.

The PEB combined the chronic left knee pain and chronic right 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.  In this case, both knees were considered to fail retention standards, both were implicated by the narrative summary (NARSUM) and in the commander’s statement, and both were profiled.  Members agreed that each knee should be conceded as separately unfitting, and that coding and rating features were logically identical.

Bilateral Knee Condition:  Over a period of several years the CI suffered various injuries to each knee that were treated with duty limitations and physical therapy.  Each injury was not significant enough to permanently affect the functional status of his knees; however, each knee became progressively more painful.  In June 2006, the CI had an orthopedic evaluation that found significant bilateral knee varus deformity (bow legs) with posterior lateral corner instability of both knees.  He underwent an open wedge high tibial osteotomy with surgical plating procedure on his left knee in June 2006, then on the right knee in November 2006.  His left knee healed normally but he continued to experience significant pain at the site of the plate at both tibial plateaus.  In August 2007, 8 months after the procedure on his right tibia, the CI was diagnosed with a non-union at the osteotomy site and he was treated with a bone stimulator.  At the time of the NARSUM in July 2007, the CI was still being treated for this non-union of the right tibia.  The NARSUM noted the CI had chronic bilateral knee stiffness; the left was worse than the right.  He had difficulty with prolonged standing, sitting and deep knee bending.  The pertinent physical exam findings are summarized in the chart below.  At the VA Compensation and Pension (C&P) exam performed 5 months prior to separation, the CI reported continued pain, stiffness, swelling, heat, redness and giving way of the left knee.  In addition, he also reported lack of endurance, locking and fatigability in the right knee.  X-ray results showed a tibial osteotomy site with fixation of both knees.  He was diagnosed with status post (s/p) left and right tibial osteotomies with strains of the left and right knee.  The pertinent physical exam findings and 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)	NARSUM – from PT exam 8 Mos. Pre-Sep	VA C&P ~ 4 Mos. Pre-Sep	
	Left	Right	Left	Right	
Flexion (140° Normal)	110°	105°	100°	100°	
Extension (0° Normal)	0°	0°	0°	0°	
Comment	Slight decreased strength right leg; Normal reflexes; Pos. pain limited motion; No instability	Pos. antalgic gait with use of cane; No instability noted; Pos. painful motion	
§4.71a Rating	10%*	10%*	10%*	10%*	
* IAW VASRD §4.59, Painful Motion

The Board directs attention to its rating recommendation based on the above evidence.  The reconsideration PEB applied the analogous code 5099-5003, degenerative arthritis, and rated both knees together at 10% using language consistent with application of the VASRD.  The VA coded each knee individually as 5260-5010, arthritis due to trauma (which is rated under code 5003), and rated each knee at 10% based on the C&P exam.  The service treatment record (STR) contained an equal amount of documentation relative to the osteotomies of each knee, with the right knee having the additional complication of the non-union.  The disability evaluation process was well under way by the time the right tibial non-union was diagnosed; therefore, it did not make the right knee “more unfitting” than the left knee.  The CI was profiled for a bilateral knee condition in preparation for the MEB; however, each knee was separately profiled at different times well before separation.  The commander’s statement focused on the pain in both knees that interfered with the CI’s MOS duties.  It is speculative to conclude that the knee pain confined to a single knee would have rendered the CI incapable of performing his MOS and separate ratings are achievable IAW VASRD §4.71a.  Members agreed that reasonable doubt should be conceded in concluding that each knee was reasonably justified as separately unfitting, and that coding and rating features were similar.  There was no degree of compensable ROM limitation, instability, locking or effusion to achieve a rating under the available knee specific VASRD codes.  The preponderance of exam data met the 10% criteria rating for both the right and left knee separately with application of VASRD principle §4.59 (painful motion).  After due deliberation in consideration of the totality of the evidence, the Board concluded that the left and right knee pain conditions were each reasonably justified as unfitting.  Considering all of the evidence and mindful of VASRD §4.3 Reasonable doubt, the Board recommends a disability rating of 10% coded 5299-5003 IAW VASRD §4.71a, for each knee.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the sleep apnea, diffuse myalgia, migraines, bilateral foot pain and degenerative disc changes conditions were not unfitting.  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.

Sleep Apnea.  The sleep apnea condition was not profiled except in preparation for the final PEB.  The commander’s statement did not mention sleep apnea or any symptoms or duty limitations potentially related to sleep apnea.  The reconsideration PEB did not judge it to fail retention standards.  The CI was treated successfully using continuous positive airway pressure while sleeping.  All STR entries were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that the sleep apnea 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 change in the PEB fitness determination for the sleep apnea contended condition.  Therefore, no additional disability rating is recommended.

Diffuse Myalgia.  The diffuse myalgia condition was not profiled or implicated in the commander’s statement and was not judged to fail retention standards.  All STR entries were reviewed by the action officer and considered by the Board.  The CI had an extensive evaluation of this condition to include muscle biopsy and electromyography nerve conduction study that were both normal.  The CI was temporarily profiled for half duty days due to potential side-effects from the medication used to treat the myalgia.  That profile expired 2 weeks after initiation.  There was no other performance based evidence from the record that the diffuse myalgia 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 change in the PEB fitness determination for the diffuse myalgia contended condition and no additional disability rating is recommended.

Migraine Headache.  The migraine headache condition was not profiled except in preparation for the final PEB and was not implicated in the commander’s statement.  The reconsideration PEB did not judge it to fail retention standards.  There was only one entry in the STR that mentioned “headache syndrome.”  There was no performance based evidence from the record that migraine headache 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 change in the PEB fitness determination for the migraine headache contended condition and so no additional disability rating is recommended.

The bilateral foot pain and degenerative disc changes conditions were not profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any of these conditions 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 change in the PEB fitness determination for the any of these contended conditions and so no additional disability ratings are 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 chronic right knee pain s/p high tibial osteotomy condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5003 IAW VASRD §4.71a.  In the matter of the chronic left knee pain s/p high tibial osteotomy condition, the Board unanimously recommends a disability rating of 10%, coded 5299-5003 IAW VASRD §4.71a.  In the matter of the contended sleep apnea, diffuse myalgia, migraines, bilateral foot pain and degenerative disc changes conditions, the Board unanimously recommends no change from the PEB determinations 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	
Chronic Right Knee Pain s/p High Tibial Osteotomy	5299-5003	10%	
Chronic Left Knee Pain s/p High Tibial Osteotomy	5299-5003	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130522, 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 / XXXXXXXXXXXXXXX), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation 
for XXXXXXXXXXXXXXXXXXXXXXXX, AR20130021815 (PD201300677)

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