RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00033
BRANCH OF SERVICE:  Army	BOARD DATE:  20141223
SEPARATION DATE:  20080304

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty Reserve (AGR) E-5 (Supply Sergeant) medically separated for bilateral knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of her Military Occupational Specialty (MOS) or satisfy physical fitness standards.  She was issued a permanent L3/S3 profile and referred for a Medical Evaluation Board (MEB).  The condition characterized as “osteoarthritis, knees” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded 10 other medical conditions for PEB adjudication.  The Informal PEB adjudicated her bilateral knee condition as unfitting and rated it at 10%.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “1) rating for bilateral knees from the military board 10%; rating given from VA is 20%; combined 10% for right knee mild degenerative joint disease and another 10% for musculoligamentous strain.  2) rating per examiner Dr. L--, states ‘failed to meet retention standards’; page 5, medical board evaluation, diagnosis, item2, dated 20 Nov 2007.  On the medical profile I was rated P1 U1 L3 H1 E1 S3, still, this was completely ignored in the final ruling of the review board.  The VA rated my PTSD at 30%, stating I have occupational and social impairment, verifying I was not fit for duty with this condition.  It is my belief this condition was left out in error or to prevent the higher percentage rating.”

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 (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 Admin PEB – Dated 20080426	VA - (2 Months Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Arthritis…Both Knees	5003	10%	Left Knee…Strain	5299-5261	10%	20080426	
			Right Knee Degenerative Joint…	5299-5261	10%	20080426	
Posttraumatic Stress Disorder	Not Unfitting	Post Traumatic Stress Disorder	9411	30%	20080510	
Other x 9 (Not In Scope)	Other x 5	
Combined:  10%	Combined:  50%	
Derived from VA Rating Decision (VARD) dated 20080529 (most proximate to date of separation [DOS]).

ANALYSIS SUMMARY:  The Informal PEB (IPEB) combined the bilateral knee conditions as a single unfitting condition, coded 5003 (degenerative arthritis) and rated 10%.  The Board first evaluated the IPEB coding approach of combining both knees under the single 5003 code.  The IPEB relied on AR 635-40 for not applying separately compensable VASRD codes.  Although VASRD §4.71a permits combined ratings of two or more joints under 5003, it allows separate ratings for separately compensable joints; and, IAW DoDI 6040.44, the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation.  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.  If the members judge that separate ratings are indicated IAW VASRD §4.7 (higher of two evaluations), however; each unbundled condition must be reasonably justified as separately unfitting to remain eligible for rating.

Bilateral Knee Condition.  The service treatment record (STR) contained clinical documentation during the period from January 2006 until September 2009.  Initially, the CI developed a non-traumatic effusion (fluid within a joint) in her right knee that required drainage.  Radiologic tests revealed mild degenerative changes within the right knee.  Subsequent physical therapy (PT) and joint lubrication injections did not provide long-lasting pain relief.  There were only two encounters within the case file that noted “bilateral” knee pain; both were orthopedics in March and September 2007.  Both exams revealed bilateral knee crepitus and tenderness as well as full range-of-motion (ROM) without swelling, guarding, atrophy, laxity, or instability.  Despite extensive conservative treatment, her pain continued and she was referred for an MEB.  At the orthopedic narrative summary (NARSUM) examination performed on 19 September 2007 (approximately 6 months prior to separation), the CI endorsed daily right knee pain.  Her physical examination (PE) revealed right-sided joint line tenderness and bilateral (R>L) patellar crepitus and retro-patellar tenderness.  Both knees were stable and there was no comment in regards to painful motion.  The commander’s performance statement indicated not meeting standards due to her physical condition and therapy requirements.  There were two permanent profiles written indicating a bilateral condition; the first was associated with the initial presentation of left knee symptoms dated 13 March 2007 and the second dated 24 August 2007.  At the VA Compensation and Pension (C&P) general examination performed on 26 April 2008 (7 weeks after separation), the CI reported bilateral (R>L) “daily knee pain with locking sensation” aggravated by descending stairs.  She specifically denied any functional limitations on standing and admitted to the ability to walk at least 3 miles.  She also indicated “No” to a history of joint dislocations or locking episodes.  The VA PE revealed bilateral tenderness with full, but painful motion.  Her gait was normal.  There was no effusion, crepitus, grinding, or instability present and repeat X-rays indicated bilateral (mild) degenerative arthritic changes.  Her activities of daily living were not functionally impaired except for “recreation” and “exercise” which were listed as “mild” impairment.  The goniometric 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)	MEB ~ 6 Mo. Pre-Sep
(20070919) 	VA C&P ~ 2 Mo. Post-Sep
(20080426) 	
	Left	Right	Left	Right	
Flexion (140 Normal)	135	135	140	140	
Extension (0 Normal)	0	0	0	0	
Comment	crepitus; tenderness;	crepitus; tenderness;	painful motion; tenderness; normal gait	painful motion; tenderness; normal gait	
§4.71a Rating	10%	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB assigned a single 10% rating under 5003 code (degenerative arthritis), whereas the VA separately and analogously rated the left and right knees under code 5299-5261 (leg; limitation of extension) at 10% each citing painful motion.  The Board first considered whether each knee condition remained separately unfitting, having decoupled them from the combined PEB adjudication.  The recorded evidence overwhelmingly reflected that the right knee was associated with more symptomatology, pathology and impairment than the left knee.  Board members considered the minimal objective abnormal findings amongst the two orthopedic encounters that listed a bilateral condition and raised the question of whether the left knee was reasonably justified as separately unfitting near the time of separation.

The left knee was not the significant clinical focus in the STR within the year prior to separation and although the attendant physical and radiologic attributes were similar, they were minimized when compared to the right knee.  It would be highly speculative to conclude that the disability confined to either single knee would not have rendered the CI incapable of performing her MOS; but, it is also reasonable to surmise that it was the combination of pathology from both knees that rendered her unfit.  While there was no evidence of compensable limitation of motion, the Board agreed that the PEB’s 10% “bundled” rating under the 5003 coding pathway was supported by sufficient radiographic evidence for “2 or more major joints;” and or painful motion (§4.59) as indicated by the presence of crepitus.  Members considered other VASRD knee codes and concluded that absent evidence of ankylosis, instability, frequent locking, or surgical intervention, that the PEB’s combined 10% rating under 5003 was a good fit to both the pathology and disability in this case.  Therefore, 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’s adjudication for the bilateral knee condition.

Contended PEB Condition.  The PTSD condition as not unfitting whereas the VA assigned a 30% rating coded 9411 (PTSD) citing occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily).  The Board first considered whether the PTSD condition was unfitting for continued military service.  The Board’s main charge with respect to the PTSD condition is an assessment of the fairness of the PEB’s determination that it was not unfitting.  At the psychiatric NARSUM (6 months prior to separation), the CI’s review of symptoms indicated sleep disturbance and loss of pleasure.  Her mental status exam (MSE) was normal.  The examiner stated, “She is moderately disabled for military and civilian employment” due to a diagnosis of chronic PTSD.  At the mental health VA C&P examination (2 months after separation), the CI admitted to minimal insomnia and denied having significant loss of pleasure.  She did endorse symptoms of reoccurring nightmares, isolation, hyper-awareness, poor concentration, insomnia, flashbacks, and anxiety.  All parameters of her MSE were normal or intact.  The examiner noted that the CI was “…a credible historian” and further noted, “If it were not for her excessive irritability and rage and the unpredictability of her presentation, she could probably maintain full-time employment.  However, I am concerned that she is very easily provoked into symptoms.  She is also having a fairly pronounced re-experiencing symptoms related to her PTSD; this may preclude her from very stressful full-time employment.”  The commander’s letter did note the PTSD diagnosis and S3 profile however, its emphasis for the CI’s inability to perform military duties were strictly based upon physical impairments.  The commander stated, “[She] has been an outstanding member of my Command.  She has been a soldier performing her daily job to the best of her ability despite her physical condition degenerating.”  Board members agreed that although the CI experienced various PTSD symptoms, the case file evidence reflected good symptom control with medications as well as reasonably good duty performance (as related to mental functioning) during the MEB process and separation.  Despite the diagnosis and a recommended S3 profile 7 months prior to separation, members concluded that her symptoms of PTSD, although mildly troublesome, did not appear to significantly impact her social and occupational functioning; and thus the PTSD condition was found to be not unfitting.  After due deliberation and having reviewed the entirety of the record, the Board concluded that the PEB’s determination that the PTSD condition was not unfitting at the time of separation and not subject to disability rating was appropriate.

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 DoDI 1332.39 for rating the bilateral knee condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended PTSD condition, the Board unanimously recommends no change from the PEB’s determination as not unfitting.  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 20131218, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

XXXXXXXXXXXXXXX 
President 
DoD Physical Disability Board of Review			

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 XXXXXXXXXXXXXXXXXXXX, AR20150012770 (PD201400033)

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						     XXXXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA