RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2013-01224
BRANCH OF SERVICE:  Army	BOARD DATE:  20141202
Separation Date:  20040811

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty PFC/E-3 (88M10/Motor Transport Operator) medically separated for knee pain, bilateral.  The 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 and referred for a Medical Evaluation Board (MEB).  The bilateral knee pain condition, characterized as “bilateral knee pain secondary to stress fracture,” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated “bilateral knee pain” as unfitting, rated at 0% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “My 20% rating was given to me in 2005.  Since then my knees have deterated further mostly due to my career as a truck driver which I have been since my discharge from the Army.  My pain scale in both knees is at lever [sic] 7-9.  This also includes stiffness and burning sensations after a 16-hour work day.  I do exercise my knees after work but this only causes more pain.  At times the pain and stiffness causes me to use a walking cane and knee braces.”

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; and, no additional conditions 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.

RATING COMPARISON:

Service IPEB – Dated 20040707	VA - based on Service Treatment Records (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5022	0%	s/p Stress Reaction, Right Tibia	5299-5262	10%	STR	
			s/p Stress Reaction, Left Tibia	5299-5262	10%	STR	
Other x0	Other x0	
Combined:  0%	Combined: 20%	
Derived from VA Rating Decision (VARD) dated 20040903 (most proximate to date of separation)

ANALYSIS SUMMARY:  The Board acknowledges the sentiment expressed in the CI’s application regarding the significant impairment with which his service-incurred condition continues to burden him.  It is a fact, however, that the Disability Evaluation System (DES) has neither the role nor the authority to compensate members for anticipated future severity or potential complications of conditions resulting in medical separation.  This role and authority is granted by Congress to the Department of Veterans Affairs (DVA).  The Board utilizes DVA evidence proximal to separation in arriving at its recommendations; and, DoDI 6040.44 defines a 12-month interval for special consideration to post-separation evidence.  The Board’s authority as defined in DoDI 6044.40, however, resides in evaluating the fairness of DES fitness determinations and rating decisions for disability at the time of separation.  Post-separation evidence therefore is probative only to the extent that it reasonably reflects the disability and fitness implications at the time of separation.

The PEB rated the bilateral knee pain the single analogous code 5099-5022.  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 it.  Since §4.71a criteria are met for separate joint ratings for the bilateral knee pain in this case, the Board is pursuing separate rating and fitness evaluations as follow.

Bilateral Knee Pain Condition.  The Board first considered if the left and right knee pain, having been de-coupled from the combined PEB adjudication, each remained independently unfitting as established above.  The CI was on a permanent profile with limitations that would have resulted from either condition alone.  The MEB examiner documented that given the CI’s recurrent symptoms that he would not be able to return to full duty status.  All members agreed that the left and right knee pain, as isolated conditions, would have each rendered the CI incapable of continued service within his training for his MOS and accordingly merits separate ratings.

The Board first considered if the left and right knee pain conditions, having been de-coupled from the combined PEB adjudication, were each reasonably justified as independently unfitting.  The MEB narrative summary (NARSUM) documented bilateral lower extremity stress fractures that resulted in an inability to perform his MOS duties.  Although the CI initially complained of pain in his left knee only, the CI did have tenderness to palpation of both knees, bone scan evidence of a Grade II stress fracture in the left tibial plateau and stress reaction in the right tibial plateau and his permanent profile was for bilateral knee pain.  Therefore, it is reasonably justified that the CI be found unfit for continued military service in his MOS due to his left knee and right knee pain conditions.  All of the Board members agreed that the bilateral left and right knee pain conditions, as isolated conditions, would each have rendered the CI incapable of continued service within his MOS, and accordingly each merits a separate rating.

The CI developed left knee pain and give away weakness during a run in January 2004.  He was seen 7 weeks later on 29 March 2004 for recurring left knee pain after running.  There were physical findings of left knee mild swelling and tenderness to palpation (TTP) on the medial aspect of the knee.  The examiner diagnosed knee sprain and prescribed a non-steroidal anti-inflammatory drug, physical therapy (PT) and crutches.  The PT documented 2 weeks of left knee pain rated 9/10 aggravated by standing and weight bearing.  The physical exam findings were popping with pain over the left medial knee and TTP over the left medial fibula plateau and medial collateral ligament (MCL).  The CI was given a sick slip with specific restrictions for left knee pain, stiffness for 3 weeks of continuous leg pain.  The CI was seen on the same day by the medical provider who documented chronic pain in the left knee and new onset increased right knee pain with PT training.  The examiner noted TTP medially and at the left tibial plateau.  He diagnosed a left MCL injury versus a stress injury.  A bone scan performed on 26 April 2004 showed a Grade II stress fracture in the left tibial plateau and stress reaction in the right tibial plateau.  The PT noted that the CI had a left tibial stress fracture and reported left knee pain rated at 6-7/10 and reported pain in the right knee rated at 4-5/10 for the prior 6 weeks.  The physical exam findings showed left leg, knee pain on the left greater than the right, slight antalgic gait, and TTP left greater than right in the medial tibial plateau.  

The MEB NARSUM exam (performed approximately 2 months prior to separation) documented that the CI underwent 27 days of convalescent leave without any improvement in the left knee pain.  The CI reported that the pain was constant; crampy type pain increased with activity and the pain would get better with rest but would also bother him at night.  During the rehabilitation phase, the CI started to develop pain in the right knee.  The examiner rated the pain according to the American Medical Association pain scale at minimal and frequent.  The physical exam findings were both left and right knee-full range-of-motion (ROM), TTP over medial tibial plateau and medial femoral condyle, positive entrapment test, and positive crepitus under the kneecap with knee ROM.  The examiner diagnosed bilateral knee pain secondary to stress fractures.  The CI was given a permanent L3 Profile for a bilateral knee pain condition.  The CI did not undergo a VA Compensation and Pension (C&P) exam.

The Board directed attention to its rating recommendation based on the above evidence.  As described above the PEB bundled conditions and rating analogous to code 5022, (periostitis), assigned a 0% rating.  The VA separately coded the right and left knee conditions as code 5299 analogous to 5262 (impairment of tibia and fibula), and rated each extremity at 10%, consistent with “slight knee or ankle disability.”  As the CI did not undergo a VA C&P examination, the VA rendered their rating based on the STR’s.  Shin splints and lower extremity stress fractures are typically rated analogous to code 5262 (tibia and fibula), impairment of with the disability rating predicated upon slight, moderate or marked disability.  The MEB NARSUM documented pain with increased activity along with relatively asymptomatic periods after decreased activity as would be expected with stress fractures and stress reactions.  This supports a rating of 10% for mild disability.  The MEB examiner clearly documented that the CI’s symptoms would reoccur if he was reintroduced to training - as is expected with stress fractures and stress reactions.  After due deliberation in consideration of the totality of the evidence, the Board concluded that the right and left knee pain 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 5299-5262 IAW VASRD §4.71a for the right knee pain and 10% coded 5299-5262 IAW VASRD §4.71a for the left knee pain.

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 knee pain condition, the Board unanimously recommends that each joint be separately adjudicated as follows:  an unfitting right knee pain condition coded 5299-5262 and rated  10%, and an unfitting left knee pain condition, coded 5299-5262 and rated 10%, both IAW VASRD §4.71a.

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	5299-5262	10%	
Left Knee Pain	5299-5262	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130910, 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 XXXXXXXXXXXXXXX, AR20150007428 (PD201301224)

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		     

CF: 
(  ) DoD PDBR
(  ) DVA