RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	 CASE:  PD 2013-01465	
BRANCH OF SERVICE:  Army 	 BOARD DATE:  20150409
SEPARATION DATE:  20040515		 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Wheel Mechanic) medically separated for a right knee and feet conditions.  The knee and feet 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 knee and feet conditions, characterized as “right medial and lateral meniscal tears” and “bilateral foot pain”, were the only two conditions forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB combined the two conditions and adjudicated “chronic pain, right knee and bilateral feet” as unfitting, rated 10%, citing the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated. 

CI CONTENTION:  The CI writes: “My condition for which I was discharged was much more sever than the rating given”.  

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 when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:  

Service IPEB – Dated 20040401	VA - (STR)	
Condition	Code	Rating	Condition	Code	Rating	Exam	

Chronic Pain, Right Knee and Bilateral Feet
	5099-5003	10%	R Knee Medial and Lateral Meniscal Tears and Early Degenerative Arthritis	5260	10%	STR	
			Callosities Beneath First and Third Metatarsal Heads, Bilateral	5299-5279	10%	STR	
Other x 0 (Not in Scope)	Other x 0		
Combined:  10%	Combined:  20%	
Derived from VA Rating Decision (VARD) dated 20040914 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  The PEB combined the chronic pain, right knee and bilateral feet 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.  IAW DoDI 6040.44 if the PEB combined adjudication is not compliant with the 5003 combined rating criteria, each condition subsumed under the single Service disability rating must be reasonably justified as separately unfitting in order to remain eligible for Service rating.  The Board’s initial charge in this case was directed at determining if the PEB’s combined adjudication was justified in lieu of separate ratings.  The evidence for each condition is presented separately along with separately unfitting recommendations.  If Board members determine by performance based fitness criteria that the condition is reasonable justified as separately unfitting and is separately ratable; IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended.  

Chronic Pain, Right Knee.  The CI first injured his right knee while playing softball in June 1995.  The knee improved with intermittent pain for several years afterwards.  In February 2003, the knee pain increased significantly.  In a treatment note dated 22 June 2003, the CI reported a history of a bilateral knee injury 5 years prior with the left knee becoming progressively worse.  The CI rated the left knee pain 9/10 (10 being the worst) with swelling after exercising and the sensation of bones grinding together.  The examiner documented a non-tender right knee with a small effusion and no instability (negative drawer sign); the left knee was tender at the lateral femoral condyle without effusion.  An orthopedic consultation was requested.  In a note dated 10 July 2003, the CI stated an initial injury to his medial knee 3 years ago when he stepped on a bag while playing baseball.  He had had bilateral knee pain for 3 months, since deploying to Jordan, which increased with exercise.  The right knee had dull pain anteriorly and sharp pain posteriorly.  The examiner documented right knee pain with stress to the medial and lateral collateral ligaments, evidence of ligamentous and meniscal injury (pain with Lachman, positive McMurray; negative anterior and posterior drawer testing); increased fluid in the suprapatellar pouch (positive ballottement testing); and decreased strength of 4/5 (normal 5/5) on flexion and 2/5 on extension.  The left knee had decreased strength of 4/5 on both flexion and extension.  Radiographic studies obtained on 14 July 2003 documented a small Baker’s cyst with minimal fluid in the joint space, and intact ligamentous and meniscal structures.  He was referred to orthopedics and underwent a right knee arthroscopy on 23 September 2003 with lateral and medical meniscal debridement.  At a physical therapy visit dated 25 September 2003, the CI was ambulating with crutches and reported 6/10 pain.  The examiner documented his ability to ambulate without crutches and without pain, active range-of-motion (ROM) of 0-95 degrees (normal 0-140 degrees); ability to perform a straight leg raise without difficulty, and minimal swelling.  At a physical therapy visit dated 20 October 2003, the CI reported he could ambulate 1/4 mile without difficulty and 0/10 pain.  The examiner documented a normal gait, active ROM of 0-140 degrees, no swelling and a slightly tender patella.  At a physical therapy visit in December 2003, the CI reported burning pain in the posterior knee with bending activities for 3 weeks, similar to the pain he had before surgery, but that he was otherwise pain free.  The examiner documented a normal gait with a ROM of 0-130 degrees; tenderness on palpation of the popliteal fossa, with passive knee flexion greater than 130 degrees and with the McMurray’s examination; 5/5 strength and no visible swelling.  

The narrative summary (NARSUM) dated 30 December 2003, stated that the knee pain failed to improve with rest, rehabilitation, and medications during the three months after surgery.  The CI reported moderate and constant right knee pain of 9/10 severity for which he took narcotic medications daily; inability to run, jump, march, or stand greater than 30 min; and inability to walk greater than 1/4 mile without significant bilateral foot and knee pain.  The NARSUM examination documented a right knee ROM of 0-135 degrees, with no effusion, markedly positive patellar grind, no instability of the anterior cruciate ligament (Lachman testing), and equivocal testing for meniscal pathology (pain with the Apley maneuver at the medial knee and no pain with McMurray examination).  Radiographic studies demonstrated osteophytes of the tibial plateau, consistent with degenerative arthritis.  On the DD Form 2697 dated 4 February 2004, the CI reported that the right knee limited his ability to work and that he had callouses on both feet.  At the MEB examination, the CI reported use of a knee brace, swelling and pain in the knee, trouble sleeping due to knee pain and the inability to perform certain motions with his knee for which he had been refused employment.  The MEB physical examination documented the right knee to have decreased ROM and strength and multiple bilateral feet callosities.  The CI failed to appear for the VA Compensation and Pension (C&P) examination scheduled for August 2004.  At the VA C&P examination 21 October 2004 the CI reported persistent bilateral knee pain and buckling.  The pain prevented the CI from falling asleep and was relieved by Motrin.  The physical examination documented a steady gait with a slight limp to the right; a moderate amount of knee crepitance; 0-120 degrees of flexion with moderate limitation due to pain; bilateral extension of his knees to 0 degrees with mild to moderate limitation due to pain; guarding of the right knee; and medial and lateral right knee instability.  A diagnosis of patellofemoral syndrome was rendered.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the chronic right knee pain and the bilateral feet as a single unfitting condition with cited application of the USAPDA for rating pain, and granted a rating of 10% coded as 5099-5003 (analogous to degenerative arthritis).  The VA rated the right knee, medial and lateral meniscal tears, and early degenerative arthritis at 10% coded as 5260 (leg, limitation of flexion).  

The Board first considered if the right knee condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting.  The knee condition was permanently profiled, implicated in the NARSUM and commander’s statement and designated as failing to meet retention standards.  Members agreed that the functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to perform his MOS and separately unfitting.  

The Board considered whether the evidence supported a higher than 10% rating for the right knee condition.  There was STR evidence of painful motion, patellar grinding, and radiographic evidence of degenerative arthritis that would warrant a rating of 10%.  There was minimal evidence of subluxation, instability, locking, effusion, or limitation of flexion or extension to support a higher rating.  The Board deliberated several coding options, including 5099-5003 (analogous to degenerative arthritis); 5299-5259 (cartilage, semilunar… symptomatic), and 5260 (leg limitation of flexion).  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 condition coded as 5099-5003.  

Chronic Pain, Bilateral Feet.  The NARSUM stated that the bilateral foot pain began in February 2003 as a result of increased activity related to active duty; the feet had gotten worse over time despite rest and rehabilitation; and the pain was 9/10 in severity, for which he took narcotic medications daily.  The CI further stated that he was unable to perform his duties without significant bilateral foot pain.  The examination documented bilateral flexible flat foot deformity with a “reducible longitudinal arch when he arises on the toes.”  There was normal motion of the forefoot, midfoot, and ankle with callosities beneath the first and fifth metatarsal heads of both feet.  On the DD Form 2697 dated 4 February 2004, the CI reported having callouses on both feet.  The MEB physical examination documented “multiple callouses.”  

The CI failed to appear for the VA Compensation and Pension (C&P).  At the VA C&P examination 21 October 2004 the CI reported bilateral foot pain for one year prior to separation.  He reported continued pain in his feet and legs with severe foot and leg pain flare-up once a month lasting 3-4 days.  The foot examination demonstrated a fungal infection, bilateral bunions (hallux valgus), and severe bilateral flatfeet.  The examiner noted swelling of both feet, callouses, abnormal shoe wear pattern, evidence of abnormal weight bearing, moderate tenderness with manipulation of the feet, and malalignment of the Achilles tendons bilaterally.  Diagnoses of hallux valgus, pes planus, and varicose veins were rendered.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the bilateral feet together and chronic right knee pain as a single unfitting condition with a disability rating of 10% coded as 5099-5003 (analogous to degenerative arthritis).  The VA rated the bilateral callosities beneath the first and third metatarsal heads at 10%; coded analogously as 5299-5279 (metatarsalgia).  The Board first considered if each foot condition, having been de-coupled from the combined PEB adjudication, was reasonably justified as separately unfitting.  The bilateral foot condition was permanently profiled, implicated in the NARSUM and commander’s statement and designated as failing to meet retention standards.  Members agreed that the functional limitations in evidence justified the conclusion that the condition was integral to the CI’s inability to perform his MOS and separately unfitting or a combination of the pain from both feet produced an unfitting bilateral condition.  

The Board considered whether the evidence supported a higher than 10% rating for the each foot.  As noted above, there are no unilateral distinctions with regards to clinical features or fitness considerations.  It is speculative to conclude that the disability confined to a single foot would not have rendered the CI incapable of performing his MOS; but, it is also reasonable to surmise that it was the overall effect of both feet which rendered him unfit.  A single 5003 rating for “2 or more minor joints” (as also applied by the VA); provides a VASRD compliant avenue for a bilateral rating.  The STR documented bilateral pes planus and plantar callosities to support a rating of 10% coded analogously to metatarsalgia (5299-5279) which encompasses bilateral ratings.  There was minimal documentation of accentuated pain on manipulation and use, marked deformity, swelling on use, or response to orthotics to warrant a higher rating coded as 5276 (Flatfoot, acquired) and no evidence of limitation of motion at the ankle or other foot injury for a higher rating coded as 5278 (claw foot, acquired) or 5284 (Foot injuries, other).  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 bilateral feet condition, coded as 5299-5279.  

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 pain, right knee and bilateral feet was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic right knee pain condition, the Board unanimously agreed that it was reasonably justified as separately unfitting and recommends a disability rating of 10%, coded 5099-5003 (analogous to degenerative arthritis); IAW VASRD §4.71a.  In the matter of the bilateral feet condition, the Board unanimously agreed that each foot was separately unfitting (or both feet produced a single unfitting condition) and recommends a disability rating of 10% coded 5299-5279 (analogous to metatarsalgia) IAW VASRD §4.71a.  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 Pain, Right Knee	5099-5003	10%	
Chronic Pain, Bilateral Feet	5299-5279	10%	
COMBINED w/BLF	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130919, 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 XXXXXXXXXXXXXXXXXXX, AR20150012430 (PD201301465)

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