RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00727
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061220

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E6, Food Service Specialist, medically separated for “bilateral knee pain” and “left foot plantar fasciitis,” rated 20% and 0%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  “I was discharged because of my knees at 20%...”  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 based upon a 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 - 20061115	VARD - 20071004	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain…	5099-5003	20%	Chondromalacia of the Femoral Condyles with Meniscus Derangement, Left Knee	5259	10%	20060726	
			Chondromalacia of the Femoral Condyles with Meniscus Derangement, Right Knee	5259	10%		
			Recurrent DVT, Right Lower Extremity  Associated with…Right Knee	7121	10%		
Left Foot Plantar Fasciitis	5399-5310	0%	Plantar Fasciitis	5299-5279	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral knee condition began in November 2004 during mobilization training.  The CI reported bilateral knee pain, left greater than right, with a history of giving way on the right.  Bilateral knee X-rays showed degenerative joint disease.  Right and left knee magnetic resonance imaging (MRI) on 20 January 2006 showed small medial meniscal tears of both knees and a small joint effusion of the left knee.  The CI underwent right knee arthroscopy in February 2006, without complication.  However, he developed a right lower extremity (RLE) deep vein thrombosis (DVT) diagnosed by ultrasound on 2 March 2006.  He was treated with anticoagulation and was on warfarin (Coumadin) for 6 months, which was stopped in September 2006.  Left knee surgery was postponed for a year due to the DVT of the RLE and anticoagulation treatment.  The MEB forwarded “chronic bilateral knee pain status-post meniscal repair right knee” for PEB adjudication.  

The commander’s statement dated 21 March 2006 noted the CI’s physical profile limited his ability to perform his assigned duties, which included limitations of no physical fitness testing, ruck march, body armor, Kevlar and “exercise at own pace/distance.”  The permanent profile dated 8 August 2006 listed bilateral knee pain.  

The Board first considered if both the right and left knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting.  Both knees were permanently profiled and physical limitations which impaired the CI’s successful duty performance were applicable to both knee conditions.  Both knees were imaged and addressed at treatment visits in the STR.  The left knee surgery was planned after the right, however, due to the complication of the development of a DVT after the right knee surgery, further surgery was postponed.  The NARSUM indicated both knees functionally impaired the CI’s ability to perform his duties.  The Board concluded there was not a preponderance of evidence in the service records which overcame the presumption that each of the right and left bundled knee conditions was reasonably considered separately unfitting and each knee was eligible for rating at separation.  

The MEB NARSUM examination on 23 June 2006, 6 months prior to separation, noted complaints of bilateral knee pain.  The CI reported pain in the right knee aggravated by exercise and tenderness along the site of the blood clot in his leg.  He reported constant left knee pain aggravated by all weight bearing activities.  Physical examination on 14 June 2006 showed an antalgic gait with use of a cane.  There was tenderness to palpation of the joint lines of both knees.  There was no instability of either knee and signs for meniscal pathology were negative bilaterally.  Knee ROM was normal extension (normal 0 degrees) bilaterally, with right knee flexion of 115 degrees (normal 140 degrees) and left knee flexion of 135 degrees, with pain.  The NARSUM indicated that both knees limited the CI’s ability to perform soldiering and to pass an Army PFT.  At the time of the NARSUM, the CI was on his first 6-month course of anticoagulation, with a plan for it to be stopped after that period and the RLE DVT condition was deemed not disabling.  

At the 26 July 2006 VA Compensation and Pension (C&P) evaluation, performed 5 months before separation, the CI reported constant bilateral knee pain without swelling, giving way or locking.  He reported that at the time of pain he could function with medication and indicated that neither knee condition caused incapacitation.  The physical examination noted an antalgic gait and use of a cane.  The physical examination showed tenderness and crepitus of the right knee and weakness and crepitus of the left knee.  Bilateral knee ROM was 0 degrees extension and 90 degrees of flexion, with additional limitation of motion of 5 degrees with repetition bilaterally.  There was no evidence of instability or meniscal pathology noted for either knee.  Strength, sensation, reflexes and pulses of the bilateral lower extremities were normal.  Bilateral knee X-rays showed DJD.  

At the 26 June 2007 VA Compensation and Pension (C&P) Joints examination, performed 6 months after separation,  the CI reported bilateral knee pain aggravated by weight bearing activities, with “some” swelling and giving way at times.  The physical examination noted a normal gait, but the CI was using a cane on the right.  Bilateral knee ROM was 0 degrees extension and 116 degrees flexion with painful motion noted.  The knees were stable and there was mildly positive testing for meniscal injury bilaterally.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition 20%, coded 5099-5003 (analogous to degenerative arthritis), citing the USAPDA pain policy.  The VA rated the right knee and the left knee conditions each 10%, both coded 5259 (semilunar cartilage, removal of, symptomatic), based on the VA C&P examination 6 months after separation, citing symptomatic removal of the semilunar cartilage (meniscus).  
  
The evidence in record for rating of the knees was essentially the same for both knees and therefore the Board considered its rating recommendation for both knees at the time of separation.  A bilateral 10% rating under the provisions of 5003 was considered, but it was concluded that the MEB NARSUM and both C&P examinations provided satisfactory evidence for painful, limited motion of both knees and there was imaging evidence of degenerative arthritis for both knees; thus, separate 10% joint ratings are indicated IAW §4.71a (based on §4.59, §4.40 and §4.45).  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261) for either knee.  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257); there was no history of frequent locking with recurrent effusions (5258) for higher rating due to the bilateral meniscal pathology; and. there was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There was therefore no VASRD §4.71a route to a rating higher than 10% for each knee under any applicable code, and no grounds for additional rating based on the presence of instability.  Therefore, having unbundled the knees and recommended them separately unfitting, the Board deliberations resulted in the same combined rating for the knees as that adjudicated by the PEB.  The Board found that the PEB’s reliance on the USAPDA pain policy was not detrimental to arriving at the highest rating and therefore, no change to the PEB adjudication is recommended.  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 adjudication for the bilateral knee condition.  

Left Foot Plantar Fasciitis.  According to STR and the MEB NARSUM, the CI’s foot condition began after stepping on a rock while deployed to Iraq.  He was evaluated by podiatry and diagnosed with plantar fasciitis.  There was minimal improvement with treatment including a night splint, orthotics, and left foot injections.  The MEB forwarded “chronic left plantar fasciitis” for PEB adjudication.  

The MEB NARSUM examination on 23 June 2006, 6 months prior to separation, noted complaints of chronic left foot pain, aggravated by walking and standing.  The physical examination showed tenderness along the sole of the left foot.  

At the 26 July 2006 VA Compensation and Pension (C&P) evaluation the CI reported constant left foot pain.  The physical examination noted left foot tenderness. There were no foot or toe deformities noted.  The examiner noted the CI used arch supports that relieved his symptoms.  At the 26 June 2007 VA C&P feet examination the CI reported constant left foot pain.  He used a night brace and reported some mild relief with shoe inserts.  The physical examination showed no flat foot or other deformities.  There was TTP of the sole of the foot and the heel.  There was pain with manipulation of the distal foot (forefoot).  There was no evidence of abnormal weight bearing.  The Achilles tendon was normal.  Sensation and circulation of the foot was normal.  
The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the plantar fasciitis condition 0%, coded 5399-5310 (analogous to muscle group X injury), citing “slight” muscle injury.  The VA rated the condition 10% coded 5299-5279, (analogous to metatarsalgia) based on the VA C&P examination 6 months after separation, citing anterior metatarsalgia.  The PEB utilized 5399-5310, an analogous code for plantar fasciitis, IAW VASRD §4.73 (muscle injuries).  

The Board reviewed the rating criteria of 5399-5310 which are subjective, with a 0% rating for slight, 10% rating for moderate, 20% for moderately severe, and 30% for severe muscle injury.  The Board considered that when coding the disability due to plantar fasciitis analogously as 5310, the discrimination between the slight and moderate characterizations depends on the presence of at least one cardinal sign or symptom of muscle injury specified as “loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement” for moderate, as opposed to none for slight.  In the STR, at the MEB NARSUM and at the C&P examination after separation, the CI reported constant foot pain aggravated by weight bearing activities.  The Board concluded this was sufficient evidence to characterize the disability due to the plantar fasciitis as moderate for 10% rating rather than slight.  However, the Board judged that characterizing the plantar fasciitis as moderately severe required evidence of greater objectively abnormal findings on examination, such as foot swelling, deformity, or evidence of abnormal weight bearing.  The Board also considered if coding and rating IAW VASRD §4.71a (musculoskeletal injuries) provided a higher rating.  There was no higher rating than 10% available with the 5279 code for metatarsalgia and there was no evidence of a foot or toe deformity of any type for higher rating under any applicable VASRD §4.71a code.  Coding as other foot injury (5284), which also has subjective rating criteria similar to 5310 resulted in no higher than a 10% rating for “moderate” foot injury with similar rationale as noted for the 5310 code.  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 plantar fasciitis condition, coded 5399-5310.  

Contended PEB Conditions.  Deep venous thrombosis (DVT) of the right lower extremity (RLE).  The Board’s main charge is to assess the fairness of the PEB’s determination that the DVT RLE 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.  As already noted above, the CI developed a RLE DVT 2 weeks after the right knee surgery and was placed on anticoagulation for 6 months.  The RLE DVT was noted on the original MEB DD Form 3947, however, the CI appealed the MEB and noted that at the time his initial DVT had resolved and he was not on anticoagulation any longer.  At the time of the PEB on 16 October 2006, the CI was not on anticoagulation and the blood clot was cleared.  The MEB in responding to a PEB inquiry stated that there was at the time no disability due to the RLE condition and removed the condition from the original MEB form.  The CI appealed the Formal PEB in mid-October 2006 stating that his right knee pain and swelling had worsened and in November 2006 repeat ultrasound noted a recurrent RLE DVT and the CI was placed back on anticoagulation treatment.  The CI appealed the FPEB findings 21 November 2006 noting that he was back on anticoagulation for recurrent DVT and the FPEB responded 28 November 2006 and affirmed its findings.  The CI was evaluated by a hematologist on 7 December 2006 and anticoagulation was recommended for life due to recurrent DVT.  The hematologist indicated the CI was permanently non-deployable.  

The CI’s lifelong anticoagulation rendered him un-deployable and restricted his ability to perform in many military circumstances.  The Board concluded that there was a preponderance of evidence in record that the RLE DVT condition was unfitting at separation and eligible for disability rating.  

At the MEB NARSUM examination on 23 June 2006, 6 months before separation, the CI was noted to have tenderness of the RLE in the areas of the blood clot.  

At the 26 July 2006 VA Compensation and Pension (C&P) examination 5 months before separation, the CI reported DVT after surgery with pain with standing or walking and intermittent RLE swelling relieved by elevation or compression hose.  His current treatment at the time of the examination was anticoagulation for 6 months.  Examination of the right lower extremity noted dark pigmentation and pitting edema.  There were no varicose veins.  At the 26 June 2007 VA Compensation and Pension (C&P), 6 months after separation, the CI reported continued daily oral anticoagulation, some leg swelling, and use of compression hosiery.  There was evidence of intermittent extremity edema, relieved by elevation or compression hosiery for a 10% rating, coded as 7121 (post-phlebitic syndrome of any etiology), but there was no evidence of persistent edema, unrelieved by elevation for the next higher rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends an unfitting RLE DVT condition rated 10%, coded 7121.  

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 left foot plantar fasciitis condition, the Board unanimously recommends a disability rating of 10%, coded 5399-5310 IAW VASRD §4.73.  In the matter of the contended deep venous thrombosis of the right lower extremity condition, the Board unanimously agrees that it was unfitting and recommends a disability rating of 10%, coded 7121 IAW VASRD §4.104.  There were no other conditions within the Board’s scope of review for consideration.  

The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Bilateral Knee Pain 	5099-5003	20%	
Deep Venous Thrombosis of the Right Lower Extremity	7121	10%	
Left Foot Plantar Fasciitis	5399-5310	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140122, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

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 AR20160014387 (PD201400727)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 40% effective the date of the individual’s original medical separation for disability with severance pay.  

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:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay, and payment of permanent retired pay at 40% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA