RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2013-01531
BRANCH OF SERVICE:  Army	BOARD DATE:  20150130
SEPARATION DATE:  20040305

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated Reserve E-6 (Military Police) medically separated for a bilateral knee condition.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was permitted to take the walk portion of the Army alternate physical fitness test.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The MEB referred “degenerative joint disease (DDD) bilaterally of the knees” to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The PEB adjudicated the bilateral knee condition as unfitting, rated 20%.  The CI made no appeals and was medically separated.

CI CONTENTION:  “I have been rated at a combined 70% service connected by the DVA since
separation on the above date.”

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 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 (VASRD) 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 20040113	VA - (3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
DJD Bilateral Knees	5003	20%	Left Knee Condition	5257	NSC*	20040610	
			Right Knee Condition	5257	NSC*	20040610	
Other x 0 (Not In Scope)	Combined:  NSC*	
Combined:  20%		
Derived from VA Rating Decision (VARD) dated 20050204 (most proximate to date of separation [DOS]).

* STRs were unavailable at original VARD.  VARD 20050928 granted 10% rating for DC 5257 right knee, presumptively, effective 20040610 (date of VA C&P exam).  VARD 20051228 granted 10% rating for DC 5257 left knee, effective 20040306.  VARD 20110712 granted 100% rating for DC 5257 right knee, post-surgical treatment, effective 20110311, then 10% from 20110601.
ANALYSIS SUMMARY:  The PEB combined the right and left knee conditions as a single unfitting condition coded 5003 (degenerative arthritis) and rated 20%.  The Board must recommend separate codes and ratings if compensable ratings for each condition are achieved IAW Veterans Affairs Schedule for Rating Disabilities (VASRD) §4.71a provided each condition remains reasonably justified as unfitting when separated from the combined adjudication.  In this case, however, it appears that the PEB adjudication was VASRD compliant.  The 5003 code likely reflected rating two major joints with radiographic evidence of DDD IAW VASRD §4.71a, rather than application of AR 635.40 (B.24f) or the US Army Physical Disability Agency pain policy (usually coded 5099-5003 analogous to degenerative arthritis).  Nevertheless, Board deliberations considered whether separate fitness determinations and ratings, if applicable, resulted in a higher combined rating than that conferred by the PEB.

Bilateral Knee Condition.  The narrative summary notes the CI initially injured his left knee in 1998 while on active duty.  Left knee X-ray on 11 July 2000 noted degenerative changes and arthritis.  Orthopedic evaluation on 28 September 2000 noted swelling of the left knee with full range-of-motion (ROM) and no instability or evidence of cartilage damage and the CI was given a soft knee brace.  A MEB was started by the Reserves in December 2002 but the CI was called to active duty and on this period of active duty both knees began to hurt, the left greater than the right.  A consult request to orthopedics on 21 July 2003 noted the CI had pain in both knees with degenerative changes and crepitus.  Orthopedic evaluation on 20 August 2003 included X-rays of both knees which noted bilateral degenerative changes and damage to the cartilage and bone of the left knee (osteochondritis).  Examination of both knees noted no tenderness to palpation and full ROM with painful motion, worse on the left, and there was swelling of the left knee.  At the MEB examination on 16 July 2003, 8 months prior to separation, the CI reported pain in both knees, left worse than right.  The MEB physical exam addressed both knees and noted irregularity of both patellae and crepitus with flexion and extension of the leg.  There was no instability, medial or lateral tenderness, or evidence of semilunar cartilage damage.  The CI was able to toe walk, but there was objective evidence of pain with increased weight on the left knee.  The ROM was flexion of 100 degrees.

At the VA Compensation and Pension joints examination on 10 June 2004, 3 months after separation, the CI reported pain and swelling of both knees.  He reported that both knees felt as if they would give out with lateral movement and that he wore rigid knee braces regularly.  The examination noted that the CI walked without a limp.  There was mild crepitus of the patellofemoral joint, mild medial joint line tenderness bilaterally, without swelling or evidence of instability or semilunar cartilage injury.  Knee ROM was full extension to 135 degrees bilaterally.  Knee X-rays showed degenerative changes bilaterally.  The Decision Review Officer (DRO) decision on 28 September 2005 cited June 2004 VA outpatient treatment notes, which showed mildly limited right knee flexion with evidence of degenerative changes without instability.  Magnetic resonance imaging of the left knee on 12 December 2005 noted a small effusion with intact ligaments and medial and lateral menisci (semilunar cartilage) with degenerative joint changes.  The DRO decision on 28 December 2005 cited VA outpatient notes from July 2000 to November 2005 and the MRI findings and noted “left knee pain without objective findings of limited motion or instability or subluxation…”

The Board directed attention to its rating recommendation based on the above evidence.  As noted above the PEB rated the bilateral knee condition 20% and noted DDD of the knees with X-ray evidence.  The original VARD did not service-connect any conditions due to lack of evidence, including service medical records.  A DRO decision on 28 September 2005 rated the right knee 10%, coded 5003-5260 (limited leg flexion with degenerative arthritis) and a DRO decision on 28 December 2005 rated the left knee 10%, 5010 (traumatic arthritis), both based upon VA outpatient treatment records not in record, but summarized in the respective DRO decision.  
The Board noted that the evidence in record supports the 10% rating coded as 5003 for imaging evidence of degenerative arthritis of two major joints, however, did not find evidence in record of occasional incapacitating exacerbations as additionally specified for the 20% rating.  However, IAW DoDI 6040.44 the Board may not recommend a lower combined rating than that conferred by PEB.  Thus, the Board reviewed to see if there was a path to a higher combined rating for the knees.  To that end the Board first considered if the evidence in record supports that both knees were individually unfitting and thus eligible for separate disability ratings.  Although the left knee was consistently noted to be worse than the right knee, both knees were addressed in treatment notes and had imaging evidence of degenerative joint disease; both knees were permanently profiled; and, the commander’s statement referred generically to knee pain, but listed profile limitations related to walking, running and squatting, which applied equally to both knees, as impairing the CI’s duty performance.  Members agreed that the evidence supports that both knees were reasonably justified as unfitting and therefore both were eligible for disability rating.  The Board next deliberated whether there was any alternative coding to that of the PEB which would provide a higher evaluation than 10% for either knee or higher than 20% for both knees.  Members considered that rated separately the right and left knees each met a 10% rating (for a combined rating of 20%) based upon painful limitation of motion- either coded as 5003 or coded as 5260 ( limited leg flexion) or 5261 (limited leg extension) IAW 4.59 (painful motion).  However, there was no evidence of right or left knee ankylosis or instability, symptomatic or removal of semilunar cartilage, compensable loss of leg flexion or extension, or impairment of the tibia, fibula, or femur to support a higher rating.  The Board found that unbundling the knees and providing separate ratings resulted in a combined disability rating of 20% and provided no ratings benefit to the CI.  Board consensus was that in this case coding two joints as 5003 was both medically appropriate and compliant with the VASRD.  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 bilateral knee 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.  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 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 re-characterization of the CI’s disability and separation determination.

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 XXXXXXXXXXXXXXXXXX, AR20150008351 (PD201301531)

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