RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00121
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060718

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Infantryman, medically separated for “bilateral knee pain” with a disability rating of 0%.

CI CONTENTION:  “I did not receive a compensation rating from the medical board.”  The CI’s complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (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 PEB - 20060530	VARD - 20070420	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Gradual Onset of Knee Pain Bilaterally…	5009-5003	0%	Chondromalacia Patella, Left Knee, Status Post Arthroscopy and Excisions Left Knee Mass	5014-5260	10%	20061101	
			Neuropathy of Peroneal Nerve Sensory Division, Left Knee	8599-8520	10%	20061101	
			Scar, Proximal Lateral Area of Left Knee	7804	0%	20061101	
			Chondromalacia Patella, Right Knee	5014-5260	10%	20061101	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  According to service treatment records (STR) and the MEB narrative summary (NARSUM), the CI’s history of non-traumatic bilateral knee pain began in January 2004.  His pain was treated intermittently with rest, temporary profiles and anti-inflammatory medication; bilateral knee radiographs were unremarkable.  In April 2004, the CI underwent surgery to remove a lipoma in the left leg, subsequently followed by another lipoma removal.  A magnetic resonance imaging (MRI) of the left knee in October 2005 documented a soft, mobile tender mass, opined to be a ganglion cyst.  The cyst was removed without complications in December 2005.  An orthopedic consultation dated 31 January 2006, documented flexion of the right knee to 145 degrees and left knee to 135 degrees. Despite 3 months of additional intensive physical therapy and medication, the CI’s knee pain could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and he was referred for a Medical Evaluation Board (MEB).  

At the MEB NARSUM examination on 4 May 2006 (2 months prior to separation), the CI noted pain at rest of 2/10 which increased to 6-7/10 during activities such as climbing steps or steep hills.  There was no indication of one knee being more painful than the other.  He noted some sense of giving away, particularly in his left knee, but denied locking.  The CI also reported that he experienced some “annoying tingling” distal to the left lateral knee incision.  The physical exam range-of-motion (ROM) findings recorded right knee flexion to 145 degrees (normal 140), and left knee to 135 degrees.  Extension was recorded at “180 degrees bilaterally” (equivalent to 0 degrees, which is normal).  His knee was ligamentously stable, and painful motion was not recorded.  The examiner noted the CI ambulated with a normal gait.  The CI reported diminished sensation in the proximal lateral leg and the examiner noted ROM of his left ankle and hallux was intact.

At the VA Compensation and Pension (C&P) examination, dated 1 November 2006 (3 months post-separation), the CI reported he was able to manage standing and walking, but crouching and kneeling produced pain;  standing for long periods was uncomfortable.  Physical examination documented the absence of instability in either knee, and ROM measurements recorded right knee flexion to 116 degrees with normal extension and left knee flexion to 91 degrees with full extension; evidence for De Luca criteria was absent.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral condition as a single unfitting condition at 0% under the analogous code 5099-5003 (degenerative arthritis).  The VA assigned 10% rating to each knee, coded analogously 5014-5260 (osteomalacia-limitation of motion) for reduced flexion.  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 the Board must follow suit if the PEB combined adjudication is not compliant with the latter stipulation, provided that each “unbundled” condition can be reasonably justified as separately unfitting in order to remain eligible for rating.  If the members judge that separately ratable conditions are justified by performance based fitness criteria and indicated IAW VASRD §4.7 (higher of two evaluations), separate ratings are recommended; with the stipulation that the result may not be lower than the overall combined rating from the PEB.  

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.  The commander’s statement dated 4 April 2006, 3 months before separation, documented concern that the CI’s knee pains would render him unable to move long distances with heavy loads or to make quick movements such as 3-5 second rushes, or low and high crawling.  Of note, the CI was a foot soldier, and his knee condition was not the result of any specific incident. His profile included both knee conditions and prohibited running; however, the CI could walk at his own pace with unlimited biking and swimming. The Board concluded that there was not a preponderance of evidence of the service records that overcame the Board’s presumption that the bundled knee condition is reasonably considered separately unfitting.  The Board then considered its rating recommendation for the unfitting right knee condition at the time of separation.  The record documented pain in the right knee with full ROM, and no evidence of instability or functional loss; there were no radiographic findings of right knee pathology. The Board agreed that the record sufficiently noted pain but with no documentation of swelling or painful motion, the preponderance of evidence did not support a compensable rating under code 5003.  The Board agreed that the condition was also not compensable under ROM codes 5260 and 5261, or any other applicable VASRD code.  The Board then considered its rating recommendation for the unfitting left knee condition at the time of separation.  Visits for the left knee, post-surgery, represented the majority of STR entries related to knee pain but neither the NARSUM nor the orthopedic addendum concluded that one knee was better or worse than the other.  The record documented pain in the left knee with minimal decrease in ROM, no evidence of instability, or functional loss.  There were no abnormal radiographic findings of the left knee before or after surgery.  Without evidence of swelling or painful motion, the Board concluded that the preponderance of evidence did not support a minimal compensable rating under code 5003.  As with the right knee, the Board agreed that the left knee was not compensable under ROM codes 5260 and 5261, or any other applicable VASRD code.  The Board unanimously agreed that neither the left knee nor the right knee condition rose to a level of compensability under §4.59, §4.45 or §4.40.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a disability rating of 0% for the right knee pain condition and 0% for the left knee pain condition.  As this provides no rating benefit to the CI, the Board recommends no change in the PEB adjudication for the bilateral knee condition. 

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the GERD, situational anxiety, subjective tinnitus, plantar warts, irritable bowel symptoms, and seasonal allergic rhinitis conditions were not unfitting.  The Board’s threshold for countering fitness determinations requires a preponderance of evidence, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  None of these conditions were profiled or implicated in the commander’s statement and were not judged to fail retention standards.  All were reviewed and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the GERD, situational anxiety, subjective tinnitus, plantar warts, irritable bowel symptoms, and seasonal allergic rhinitis the conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the bilateral knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the contended GERD, situational anxiety, subjective tinnitus, plantar warts, irritable bowel symptoms, and seasonal allergic rhinitis conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  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 20131230, 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, AR20160005825 (PD201400121) 

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:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA