RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2013-01629
BRANCH OF SERVICE:  Army 	BOARD DATE:  20141120
SEPARATION DATE:  20041224

SUMMARY OF CASE:  The evidence of record indicates this covered individual (CI) was an activated National Guard SGT/E-5 (31B/Military Police) medically separated for bilateral knee pain.  The knee condition could not be adequately rehabilitated to meet the requirements of his Military Occupational Specialty (MOS) or physical fitness standards. He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The knee condition, characterized as “Patellofemoral pain bilateral; left worse than right”, was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  There were no other conditions submitted by the MEB.  The Informal PEB adjudicated “patellofemoral pain, bilaterally” as unfitting, rated at 0%, referencing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The CI made no appeals and was medically separated.

CI CONTENTION:  The CI elaborated no contention in his application.  

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; 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. 

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 Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

RATING COMPARISON:  

Service IPEB – Dated 20041108	VA - (5 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Patellofemoral Pain, Bilaterally… 	5099-5003	0%	Patellofemoral Syndrome…Left…	5257	10%	20050514	
			Patellofemoral Syndrome…Right…	5258	0%		
Other x 0 (Not in Scope)	Other x 4	
Combined:  0%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20050608

ANALYSIS SUMMARY:  The PEB combined the bilateral knee pain conditions as a single unfitting condition rated at 0%, coded 5099-5003 (analogous to degenerative arthritis).  The PEB relied on AR 635.40 (B.24 f.) and/or the USAPDA pain policy for not applying separately VASRD codes.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD rating guidelines.  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 unfitting in and of itself.  Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.  

Bilateral Knee Condition.  The narrative summary (NARSUM) noted the CI injured his knees in July 2004, while unloading a truck his left knee gave out and he reported that both knees were swollen.  The CI was diagnosed with bilateral patellofemoral pain syndrome, left greater than right.  X-ray images of left knee obtained on 16 August 2004, revealed mild degenerative changes of the patella.  Magnetic resonance imaging (MRI) of both knees performed on 2 September 2004 revealed that both knees findings were nearly identical; small joint effusion, small degenerative cyst, and “suspicious for” lateral meniscus tear on the left but the right lateral meniscus “appears to be torn”.  A bone scan obtained on 20 September 2004 noted a small area of increased uptake in the left patella.  Knee examinations in the service treatment record noted normal range-of-motion (ROM), no instability or any findings suggestive of meniscal injury.  There were two physical therapy visits (approximately 3 months before separation), which documented bilateral knee normal ROM, the exception of one examination captured left extension limited by 5 degrees 

At the MEB examination performed on 29 September 2004 (approximately 2 months before separation), the CI reported left knee pain worse than the right knee, that’s aggravated by stairs, however he did noted a decreased in pain level since he’s no longer participating in daily physical fitness training.  The MEB physical exam noted normal bilateral knee ROM of 0 to 140 degrees, without instability, effusion, or evidence of meniscal injury.  Knee movement caused patellar pain and there was no evidence of thigh muscle atrophy.  According to the MEB examiner, the bilateral knee X-rays obtained on 16 August 2004 were normal, the MRI findings regarding meniscal tears were not clinically significant and the CI’s symptoms were not explained by meniscal tears.  

During the VA Compensation and Pension (C&P) examination dated 14 May 2005 (performed 5 months after separation), the CI reported bilateral knee pain, left greater than right, with pain under the bottom of his kneecaps, without stiffness, swelling, locking or instability.  The CI reported that when working he experienced knee problems after approximately 6 hours.  His symptoms did not limit his occupation or recreational activities.  During the examination of bilateral knees, the examiner noted that ROM was normal and there was no additional loss of motion with repetitive use.  There was normal alignment of both patella, with tenderness to palpation, but no crepitus.  The right knee was noted to have painless ROM and was stable; the left knee was noted to be “ligamentously unstable.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 0%, coded 5099 5003 (analogous to degenerative arthritis) and cited the USAPDA pain policy.  The VA rated the left knee at 10%, coded 5257 (knee impairment) for slight lateral instability and the right knee at 0%, coded 5258 (dislocated semilunar cartilage with frequent episodes of “locking”, pain and effusion into the joint), noting normal examination except for tenderness to palpation.  The Board first reviewed to see if the left and right knee conditions each remained reasonably justified as unfitting when separated from the PEB’s combined adjudication.  The permanent profile noted bilateral knee pain.  The commander’s statement noted only “current medical condition” and the physical profile prevented the CI from performing the duties of his MOS without any information to discriminate the effects of the left knee from the right knee.  The MEB forwarded bilateral patellofemoral pain to the PEB as not meeting retention standards.  Treatment notes throughout the STR addressed the two knees together and, there were no major differences between them in the objective findings.  The Board agreed that the evidence in record reasonably supports that each knee was unfitting at the time of separation and eligible for service disability rating.  The Board considered the rating of the knees together because they were addressed together in all examinations with no significant rating differences noted between them.  The Board agreed that the totality evidence in record supports a 10% rating for the knees coded as 5099-5003 for evidence on imaging studies of degenerative changes of both knees without evidence of “occasional incapacitating episodes” and no limitation of motion.  The Board reviewed to see if a higher evaluation was achieved for the two knees coding with analogous coding for patellofemoral pain syndrome, 5299-5261, IAW §4.59 (painful motion).  However, the Board noted the evidence supports the left knee was consistently worse than the right knee, both knees improved with the physical profile limitations and the post-separation C&P examination noted a normal examination of the right knee, except for focal tenderness to palpation of the patella and specifically noted painless ROM.  Therefore, the Board member’s consensus was that the left knee disability met the 10% rating IAW §4.59, but that right knee disability is appropriately rated at 0%.  Thus, this coding approach resulted in a combined rating of 10% and the Board chose to code the bilateral knee condition as 5099-5003.  

The Board further noted that the C&P examiner noted “ligamentous instability” of the left knee and deliberated the application of dual ratings, based on separate ratings for instability and painful motion.  This was sanctioned by VA Training Letter TL 04-22 (1 October 2004), which is applicable for Board recommendations by precedent and legal opinion.  However, evaluations in the STR and the MEB examination did not note any instability and at both the MEB and the C&P examinations, the CI denied locking or instability.  The Board opined that there was no evidence that the noted instability resulted in any physical impairment and therefore, the Member consensus was that dual rating for of the left knee for PFPS and instability was not supported by the evidence.  Additionally, there was no evidence in record of right or left knee tibia/fibula impairment or limited flexion.  Although imaging suggested there may be meniscal tears of both knees, the MEB examiner indicated there was no clinical evidence to support the diagnosis, and all examinations in record supported this contention.  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 knee conditions, coded 5099-5003.

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 the bilateral knee condition was operant in this case and the condition was adjudicated independently of that policy.  In the matter of the bilateral knee condition, the Board unanimously recommends a disability rating as follows: an unfitting left knee condition and an unfitting right knee condition, rated at 10%, coded 5099-5003 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board recommends modifying the case determination as follows, effective the date of medical separation:  

UNFITTING CONDITION	VASRD CODE	RATING	
Bilateral Patellofemoral Pain	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20130410, 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 XXXXXXXXXXXXXXXXX, AR20150006403 (PD201301629)

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						     

CF: 
(  ) DoD PDBR
(  ) DVA