RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00602
BRANCH OF SERVICE:  Army	BOARD DATE:  20150417
Separation Date:  20051128

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Patriot Operator/Maintainer) medically separated for bilateral knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile which authorized alternate physical fitness testing and he was referred for a Medical Evaluation Board (MEB).  The condition, characterized as “bilateral knee pain” and “arthritis, both knees” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition (systemic lupus erythematosus [SLE]) as meeting retention standards for PEB adjudication.  The Informal PEB adjudicated his bilateral knee pain as unfitting and rated it at 10% with application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The remaining condition was determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Army rating was 10%.  Upon VA evaluation received retroactive 40% to date of discharge.” 

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 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 20051004	VA - (~4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5003	10%	Left Knee Patellofemoral Syndrome…	5257	Not Service Connected*	20060320	
			Right Knee Patellofemoral Syndrome…	5257			
Other x 1 (Not In Scope)	Other x 4	
Rating:  10%	Combined:  N/A (VA considered all conditions not service-connected [NSC])*	
Derived from VA Rating Decision (VARD) dated 20060724 (most proximate to date of separation [DOS])
*A Decision Review Officer (DRO) decision dated 20081231 increased the rating to 10% each knee effective 20051129.

ANALYSIS SUMMARY:  The PEB rated the chronic bilateral knee pain condition under the single analogous code 5099-5003 (degenerative arthritis).  The Board, IAW VASRD §4.7 (higher of two evaluations), must consider separate ratings for PEB bilateral joint adjudications although, separate fitness assessments must justify each disability rating.  In this case, both knees were considered to fail retention standards, both were implicated by the MEB narrative summary (NARSUM) and both were profiled.  The commander’s statement mentioned the CI’s “medical condition” as limiting all his functional activities.  The Board noted that the CI’s underlying condition, SLE, adjudicated as not unfitting by the PEB, caused changes in each knee that would account for knee pain in each knee separately.  Members agreed that each knee should be conceded as separately unfitting; and, that coding and rating features were logically identical.

Chronic Bilateral Knee Pain Condition.  The CI developed an insidious onset of right knee pain in April 2003.  The CI reported no history of direct trauma nor was this pain related to any specific activity.  He developed left knee pain in July 2003 which was constant and with an aching sensation.  The CI was referred to physical therapy (PT) for right knee pain which he described as an ache with an occasional sharp knife-like feeling.  The CI continued to follow with PT for bilateral knee pain throughout 2004.  A right knee X-ray demonstrated mild patellofemoral joint degenerative changes.  The orthopedist noted new onset of constant right and left knee pain and an aching sensation which was rated at 4/10 and increased to 10/10 with running, jumping, lifting heavy objects, and prolonged ambulation.  There was associated intermittent swelling and a locking sensation at full extension.  The physical exam findings were tenderness of both knees without swelling.  Left and right knee X-rays demonstrated minimal patellofemoral joint degenerative changes bilaterally as evidenced by superior patellar bone spurs.  The CI was referred to rheumatology as part of his knee pain workup and was diagnosed with SLE and started on medication for that condition.  The evidence present for review documented only one exacerbation of the CI’s SLE in the 4-month period between diagnosis and his DOS.  The orthopedist documented no change in the chronic symptoms of both knees.  The MEB NARSUM exam 3 months prior to separation documented that the CI’s knee pain did not respond to PT, ultrasound treatment, or non-steroidal anti-inflammatory drugs, and referenced that he had numerous temporary profiles.  The symptoms in both knees were increased whenever he returned to full activities.  The VA Compensation and Pension exam approximately 4 months after separation, documented that the bilateral knee pain was stable.

There were two range-of-motion (ROM) evaluations in evidence, with documentation of additional ratable criteria, which the Board weighed in arriving at its rating recommendation as summarized in the chart below.

Bilateral Knee ROM (Degrees)	NARSUM ~ 2.5 Mo. Pre-Sep	VA C&P ~4 Mo. Post-Sep	
	Left	Right	Left	Right	
Flexion (140 Normal)	135	135	140	140	
Extension (0 Normal)	0	0	0	0	
Comment	Normal gait; Pos. tenderness to palpation; Normal strength, sensation & reflexes; No instability	Normal gait; No painful motion	
§4.71a Rating	10%*	10%*	0%	0%	
*IAW VASRD 4.40 (Functional Loss)

The Board directed attention to its rating recommendation based on the above evidence.  The PEB coded the chronic bilateral knee pain condition as 5099 analogous to 5003 and rated at 10%.  The VA coded the left knee patellofemoral syndrome as 5257 (other impairment of the knee) and initially determined it to be NSC.  More than 2 years later, a Decision Review Officer granted service-connection and coded the degenerative joint disease(DJD) right knee and DJD left knee each as 5003 with 5260 (limitation of leg flexion) and rated each knee 10% effective the day after separation.  The NARSUM exam demonstrated that both knees had non-compensable ROM measurements.  The Board notes there was ample evidence in the service treatment record that the CI had constant bilateral knee pain with all activities, therefore meeting the 10% rating criteria for both knees individually with application of VASRD §4.10 for functional impairment and §4.40 for functional loss.  The Board noted that the CI’s underlying condition of SLE was adjudicated as not unfitting by the PEB.  Board members also considered if the SLE condition could be found unfitting as there was some fitness-related data that could support such a position.  However, if the SLE condition was considered unfitting there would be no benefit to the CI, as it would be rated at 10% under VASRD code 6350 (systemic lupus erythematosus).  After due deliberation, and in consideration of the totality of the evidence, the Board concluded that the right and left chronic knee pain conditions were each reasonably justified as unfitting.  Considering all of the evidence and mindful of VASRD §4.3 reasonable doubt, the Board recommends a disability rating of 10% coded 5099-5003 IAW VASRD §4.71a for the left chronic knee pain and 10% coded 5099-5003 IAW VASRD §4.71a for the right chronic knee pain.

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 chronic bilateral knee pain condition, the Board unanimously recommends a separate disability rating of 10% separately for each knee 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 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	
Left Chronic Knee Pain	5099-5003	10%	
Right Chronic Knee Pain	5099-5003	10%	
COMBINED (w/BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140127, 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 XXXXXXXXXXXXXXXXXXXX, AR20150013270 (PD201400602)

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 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