RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-00831
BRANCH OF SERVICE:  Army	BOARD DATE:  20140723
SEPARATION DATE:  20060307

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SGT/E-5 (11B20/Infantryman) medically separated for knee conditions.  These conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty (MOS) or satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  Left knee patellar chondromalacia and right knee patellar chondral lesion, characterized as medically unacceptable, were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded one other condition.  The Informal PEB (IPEB) adjudicated chronic bilateral knee pain as unfitting, rated 0%, with presumably application of the US Army Physical Disability Agency (USAPDA) pain policy or Department of Defense Instruction (DoDI) 1332.39.  The remaining condition was determined to be not unfitting.

CI CONTENTION:  “I was given 10% for PTSD, 10% for left knee, right knee, Tinea Pedis with onychomycosis.  On May 25, 2006 I was awarded a 30% rating from the VA.  I believe I should be granted a military retirement.”

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 those conditions identified but not determined to be unfitting by the PEB, when specifically requested by the applicant.  The ratings for conditions meeting the above criteria are addressed below.  In addition, the Secretary of Defense directed a comprehensive review of Service members with certain mental health conditions referred to a disability evaluation process between 11 September 2001 and 30 April 2012 that were changed or eliminated during that process.  The applicant was notified that he may meet the inclusion criteria of the Mental Health Review Terms of Reference.  The mental health condition was reviewed regarding diagnosis change, fitness determination and rating in accordance with VASRD §4.129 and §4.130.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, may be eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20060307	VA* - (.4 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	Right Knee Patellar Chondromalacia	5099-5014	10%	20060224	
			Left Knee Patellar Chondromalacia s/p Arthroscopy	5099-5014	10%	20060224	
Mental Health	Not Adjudicated	PTSD	9411	10%	20060523	
Other x 1 (Not in Scope)	Other x 5	20060224	
Combined:  0%	Combined:  40%	
*Derived from VA Rating Decision (VARD) dated 2000413 (most proximate to date of separation (DOS))

ANALYSIS SUMMARY:  The IPEB combined the bilateral knee conditions as a single unfitting condition, coded analogously to 5003 (degenerative arthritis) and rated 0%.  The Board first evaluated the IPEB coding approach of combining the conditions under the single analogous 5003 code.  The IPEB relied on AR 635-40 for not applying separately compensable VASRD codes (and invoked the USAPDA pain policy for rating).  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.

Chronic Bilateral Knee Pain.  The CI initially developed left knee pain associated with “popping” while in basic training in the summer of 1998.  He underwent a prolonged period of conservative treatment without relief.  Radiology examination indicated a possible meniscal tear and subsequently underwent arthroscopic surgery.  Operative findings did not implicate any ligamentous tear, but rather chondromalacia (softening of cartilage) of the knee cap; which was debrided in March 2005.  Within 2 months after surgery, the CI reported the absence of pain and demonstrated full active range-of-motion (ROM) of his left knee.  An apparent inconsistent physical therapy (PT) report dated December 2005 and the narrative summary (NARSUM) dated October 2005 indicated an unsuccessful resolution of left knee pain after surgery.  He also reported a “twisting type” injury to his right knee while exiting a truck on deployment in 2004.  Radiology examination of his right knee performed in May 2005 additionally revealed chondromalacia of the knee cap and a meniscal tear.  On his Medical Retention Review Board (MRRB) dated 12 August 2005, it was noted that right knee surgery was offered, but not yet scheduled.  The MEB occurred prior to any further surgical intervention.  The range-of-motion (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.

DOS 20060307
Knee ROM
(Degrees)	NARSUM 5 Mo. Pre-Sep
(20051006) 	PT 3 Mo. Pre-Sep
(20051214) 	VA C&P 2 weeks Pre-Sep
(200602024) 	
	Left	Right	Left	Right	Left	Right	
Flexion (140 Normal)	145	145	130	130	120	120	
Extension (0 Normal)	0	0	0	0	0	0	
Comment	-	-	-	-	Provider comment irt ‘body size’; PM present	Provider comment irt ‘body size’	
§4.71a Rating	PEB 0% bundled	-	-	-	

At the NARSUM examination (5 months pre-separation), the CI reported left knee pain with prolonged standing and walking and daily right knee pain.  Pursuant to painful episodes, the right knee was twice often painful as the left knee.  Physical examination (PE) revealed bilateral painful knee cap compression and joint-line tenderness with an additional painful McMurray (exam test for meniscal tear) on the right.  ROM was bilaterally normal.  There was no evidence of obvious joint instability, meniscal damage or effusion.  A PT ROM evaluation performed approximately 2 months after the NARSUM was only minimally less than prior examination.  Measurements were verified after three repetitions.  At the VA Compensation and Pension (C&P) examination (performed 2 weeks pre-separation) the CI reported continued left knee pain increased with stair mobility as well as with driving and squatting.  He reported the same with his right knee in regards to stair mobility and squatting; although “he is all right with driving.”  The VA PE revealed full bilateral knee ROM with additional findings of joint-line tenderness and painful motion on the left and joint-line tenderness, knee cap crepitus and a painful “instability” test on the right.  There was no effusion or instability present in either knee, and his gait was normal.  The diagnosis was bilateral patellar chondromalacia.  Although present, there were no reported estimates of functional limitations.  The Board directs its attention to its rating recommendations based on the evidence just described.

As previously elaborated, the PEB bundled the chronic bilateral knee pain at 0% using an analogous 5003 code (degenerative arthritis) based upon the USPDA pain policy.  The VA separately rated the left and right knees under the analogous 5014 code (osteomalacia) 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 left knee was associated with more symptomatology and impairment than the right and the record remained inconsistent with post-operative findings as to the degree of surgical success of pain relief to the left knee.  The record clearly indicated a complete resolution of his left knee pain in May 2005 and that the permanent profile written one month later listed “bilateral knee pain” as the diagnosis.  The CI confirmed the written profile “was accurate” during his MRRB.  The record was absent any interval history of additional trauma, injury, or “additional” surgery to the left knee from the period of May 2005 (resolution of pain) through June 2005 (profile stating “bilateral” knee pain).  This inconsistent finding was such that the question was raised of whether the left knee was reasonably justified as separately unfitting near the time of separation.

There were a total of three subsequent service treatment record (STR) notes contained in the case file after the referenced May 2005 PT note; two Ortho notes and one PT note.  One Ortho note was hand-written and nearly illegible and although the other Ortho and PT note indicated either bilateral or left knee pain as “reason for appointment,” there was no physical reference or objective evidence of any left-sided condition or impairment.  The left knee was not the significant clinical focus in the STR near the time of service separation and although the attendant physical 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 his MOS; but, it is also reasonable to surmise that it was the combination of pathology from both knees that rendered him unfit.  Furthermore, the bilateral diagnosis does support the single 5003 based rating for “2 or more major joints;” thus there is VASRD §4.71a latitude for a bilateral rating in this case.  The evidence of painful motion also supports VASRD 4.59 criteria.  Member’s agreed that a rating of 10%, coded 5099-5003, is a good analogy to both the pathology and disability.  Therefore, 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 chronic bilateral knee condition.

Mental Health Condition.  Although not listed in the MEB or PEB, the CI made statement in his contention of being granted a VA rating for posttraumatic stress disorder (PTSD).  The VA psychiatric C&P examination was conducted very near the CI’s date of service separation and its PTSD diagnosis was solely based upon un-corroborative and self-reported history of two separate deployments.  The VA examiner described the CI as “a relatively well-functioning individual who has done well both in and outside the Army.”  The case file did not contain any Service-related MH documentation.  No MH diagnosis was ever separately profiled nor implicated in the commander’s statement.  This case does not meet the inclusion criteria of the Terms of Reference of the Mental Health Review project.  The possibility of an unfitting MH condition was reviewed by the action officer and considered by the Board.  Having no service record evidence coupled with a description of “well-functioning individual” by the VA, indicated that any MH condition did not separately and significantly interfere with satisfactory performance of his MOS requirements.  All evidence considered, there is insufficient evidence to support any unfitting MH condition
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 instruction by the Board.  In the matter of the chronic bilateral knee condition, the Board unanimously recommends a disability rating of 10%, 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	
Bilateral Knee Pain	5099-5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140220, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

				
XXXXXXXXXXXXXXXXXX
President
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 XXXXXXXXXXXXXXXXXX, AR20140015977 (PD201400831)

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 to 10% 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						    XXXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary
						         (Army Review Boards)

CF: 
(  ) DoD PDBR
(  ) DVA