RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME: XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00652
BRANCH OF SERVICE: Army 	SEPARATION DATE:  20041118

Data extracted from the available evidence of record reflects that this covered individual (CI) was an traditional drilling National Guard, E4, M1 Tank Crew Member, medically separated for bilateral knee pain, with a disability rating of 0%.  

CI CONTENTION:  The CI contends for a higher disability rating for his unfitting condition and rating for his non-unfitting condition.  The applicant’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 - 20041005	VARD - 20050618	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	Chondromalacia Patella L Knee	5257	10%	20050223	
			Chondromalacia Patella R Knee	5257	10%	20050223	
Bilateral High Frequency Hearing Loss	Not Unfitting	Left Ear Hearing Loss	6100	0%	20050224	
		Right Ear Hearing Loss	6100	NSC	20050224	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  The PEB combined the right and left knee conditions as a single unfitting condition coded analogously to 5003 and rated 0% with application of the USAPDA pain policy AR 635-40 B24.f.  The approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and there was no need for separate fitness adjudications or implied adjudication that each condition was separately unfitting.  The Board also noted that “bundling,” the combining of two or more major joints may be permissible under the VASRD 5003 rating requirements, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The Board’s initial charge in this case was therefore directed at determining if the PEB’s approach of combining conditions under a single rating was justified in lieu of separate ratings.  When considering a separate rating for each condition, the Board considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the right and left knee conditions are presented together, with attendant recommendations regarding separate unfitness and rating in the rating discussion.

Bilateral Knee Condition.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI injured his right knee in advanced individual training (AIT).  This occurred approximately 4 years year prior to referral for MEB.  A right knee magnetic resonance imaging was unremarkable except for a very tiny joint effusion (fluid collection).  Bilateral knee X-rays show findings suggestive of an excessive lateral pressure syndrome.  Orthopedic surgery performed a right knee injection with local anesthetic (Xylocaine and Marcaine) and corticosteroids (Celestone) which provided relief for about 2 months.  An orthopedic surgery evaluation documented a history of persistent painful right chondromalacia patella (pathologic changes in patellar articular cartilage) for several years.  The CI reported that his left knee began to bother him, in the same way and area as his right knee, in the previous month.  The impression listed symptomatic right knee chondromalacia of the patella, worsening over a year or so, and symptomatic left knee chondromalacia patella.  The surgeon opined that there was no simple solution for symptomatic chondromalacia patella and that a lateral retinacular release, along with elevation of the tibial tuberosity, might give some relief of pain.  The CI opted to adjust his medication.  Physical therapy (PT) performed repetitive (X3) range-of-motion (ROM) measurements for the MEB.  The goniometer measured active ROM values were right knee flexion of 135/135/138 (140 normal) and extension of 0/0/0 (0) with left knee flexion of 130/130/135 (140) and extension of 0/0/0 (0) degrees.  There was pain with ROM but there was no limitation of ROM.  The orthopedic surgery consultation for the MEB recounted the 4-year history of right knee pain that started after strenuous activity in his basic training.  The CI complained that the intermittent right knee pain slowly and progressively worsened over 3 years.  Pain occurred mostly after a day of greater activity (running, walking, biking or swimming).  The CI reported a 6-month history of increasing left knee pain with activity that was very similar to his right knee.  He complained of occasional effusion, swelling, and crepitus (grating sensation or sound).  The CI denied mechanical locking, or symptoms of instability, of either knee.  The bilateral knee examination revealed normal appearance with mild tenderness on patellar movement and compression.  There was normal patellar tilt and patellar tracking.  There was no "J" sign (assesses patellar lateral maltracking), patellar grind (assesses abnormal patellar movement and painful crepitation), effusion, or instability.  Valgus/varus stress (assesses medial collateral ligament [MCL]/lateral collateral ligament [LCL]), anterior/posterior drawer (assesses anterior cruciate ligament [ACL]/posterior cruciate ligament [PCL]), and McMurray (assesses menisci) tests were negative.  The knee ROM was normal with “some pain” with ROM.  Strength, sensation, and pulses were normal.  The surgeon recounted the X-ray findings and the diagnosis listed bilateral anterior knee pain.  The NARSUM, three months before separation, recounted the history and interventions.  The CI endorsed a 4-year history of right knee pain that started in basic training.  Since the initial injury, pain had slowly worsened.  Approximately a year prior, he experienced worsening of right knee symptoms following a three mile run.  The CI complained of a 6-month history of increasing pain and similar symptoms involving his left knee.  He rated his constant knee pain as 6-7/10 for the right and 6/10 for the left.  He had periodic, 5 to 10 second, sharp flares of 9/10 for the right and 8/10 for the left.  Pain was exacerbated by weather changes, prolonged sitting, prolonged standing, activity, walking (>200 yards), running, marching, rucking, jumping, crawling, stairs, biking, swimming, lifting (>35 pounds), and carrying (>10-15 pounds).  Bilateral knee pain was associated with swelling and effusion.  There was a sensation of instability, grinding (R>L), and that his knees were going to give out (R>L).  He denied symptoms of instability or a history of mechanical knee locking.  The CI did not seek to be reclassified into the MOS that was offered.  Active mediations listed the two nonsteroidal anti-inflammatory drugs (NSAIDs) of Vioxx daily and Motrin as needed.  The bilateral knee examination revealed lateral patella tenderness and pain on compression (R>L).  Lachman (assesses ACL) and drawer (assesses ACL/PCL) tests were negative.  The examiner recounted the MRI and X-ray findings, the MEB ROM values by PT, and the MEB orthopedic surgery consultation examination findings.  The diagnosis listed bilateral anterior knee pain.  At the VA Compensation and Pension (C&P) examination the CI reported his right knee was the worst.  He complained his right knee pain at best was 5/10 with flares to 8-9/10.  The CI could not tolerate a right knee brace because of patella tenderness.  When his right knee was particularly bad, he tended to stress his left knee and it became more painful.  Left knee pain was 3-6/10 with flares to 9/10.  Pain was exacerbated by prolonged sitting, prolonged driving, activity, lifting, and carrying and relieved by medication (Motrin and Celebrex).  The CI denied episodes of complete dislocation or recurrent subluxation.  He denied systemic arthritides or use of a prosthesis or cane.  The physical examination documented a limping gait favoring the right leg.  He was able to walk on his toe and heels with knee discomfort walking on his heels.  The bilateral knee examination revealed no effusion, redness, or warmth.  The patellae were painful (R>L) with tapping and tended to dislocate laterally.  Lateral ligament tension was normal and without laxity and the McMurray test was negative.  Both patellae tended to click with full extension and the CI winced with discomfort.  The examination documented bilateral passive ROM of full flexion (140 degrees) and full extension.  Sensation and pulses were normal.  The examiner stated “His limitation then is more from pain than from physical obstruction, and he does not experience fatigue or lack of endurance in attempting to use the legs because the pain stops him before anything else.”  The bilateral knee X-rays were normal.  The diagnosis listed patellofemoral syndrome bilaterally, with tendency to laterally dislocate the patellae, causing chondromalacia patellae bilaterally (R>L).

The Board directed attention to its rating recommendation based on the above evidence.  As previously elaborated, the Board must first consider whether each knee condition remains separately unfitting, having been de-coupled from a combined PEB adjudication.  The PEB assigned a bilateral 0% rating under an analogous 5099-5003 code (degenerative arthritis) citing injury in basic training, re-injury, chronic bilateral knee pain, pain with activity, normal imaging, good stability, chondromalacia signs by examination, crepitus on motion, and full ROM.  The VA assigned a right 10% rating and a left 10%  rating under 5257 (knee, other impairment of) based on the VA C&P examination, 3 months after separation.  The VA cited altered gait, pain, pain with activity, mild to moderate pain flare-ups, MRI findings, X-ray findings, swelling, crepitus, patellae pain with tapping,  patellar dislocation, no edema, no effusion, no locking, negative McMurray, painful ROM, and full ROM.  The PEB’s bilateral rating of 0% analogously to degenerative arthritis (5003) established by X-ray findings does not comport with the VASRD §4.71a stipulation for a 10% rating under 5003 for “2 or more major joints”, the latter without regard to ROM limitation or other factors.  While a knee condition was not specifically implicated in the commander’s statement, the bilateral knees were implicated in the profile, NARSUM, MEB, and PEB.  It remains that both knees were considered to fail retention standards.  The disability attendant to only the right or left knee cannot be isolated by the clinical evidence, or extricated from the fitness implications of the bilateral limitations.  Members agreed that the right and left knee conditions should be considered as separately unfitting.  While the profile, MEB, and PEB implicated bilateral knees, the majority of complaints, pathology, imaging, and therapeutic interventions in the STR were related to the right knee.  The proximate examinations did not demonstrate a limitation of motion to support a minimum rating under the limitation of flexion (5260) or extension (5261) codes.  There was no dislocated meniscus (5258), symptomatic removed meniscus (5259), knee ankylosis (5256), knee recurrent subluxation/lateral instability (5257), tibia and fibula nonunion/malunion (5262), or genu recurvatum (5263) for consideration under the respective codes.  Members debated if a 10% ratings was warranted for the bilateral knees with application of VASRD §4.40 (functional loss) or §4.59 (painful motion).  The Board carefully considered the option of rating both knees separately, noting that the VA rated the knees separately.  The Board concluded that the evidence did provide sufficient grounds for recommending separate knee disability ratings in this case.  A rating of 10% for the right and 10% for the left, coded 5099-5003, is a good analogy to both the pathology and disability.  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 right knee condition and 10% for the left knee condition.  

Contended PEB Conditions.  

The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral hearing loss condition was 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.  While bilateral hearing loss condition was profiled, it was not implicated in the commander’s statement and was not judged to fail retention standards.  The bilateral hearing loss was reviewed and considered by the Board.  There was no performance based evidence from the record that the bilateral hearing loss condition significantly interfered with satisfactory duty performance.  After due deliberation, and 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 bilateral hearing loss condition and so no additional disability rating is recommended

BOARD FINDINGS:  In the matter of the bilateral knee condition, the Board unanimously recommends a disability rating of 10% for the right knee plus 10% for the left knee, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended bilateral hearing loss condition, the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.  The Board, therefore, recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation:  

CONDITION	VASRD CODE	RATING	
Chronic Right Knee Pain	5099-5003	10%	
Chronic Left Knee Pain	5099-5003	10%	
RATING	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140130, 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, AR20160005584 (PD201400652)

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, accept the Board’s recommendation to modify the individual’s disability rating to 20% without re-characterization 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:

CF: 
(  ) DoD PDBR
(  ) DVA