RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-01827
BRANCH OF SERVICE:  Army	BOARD DATE:  20150225
SEPARATION DATE:  20070615

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4, (Petroleum Supply Specialist) medically separated for bilateral patellofemoral pain syndrome (PFPS).  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 and referred for a Medical Evaluation Board (MEB).  The condition “bilateral knee pain due to patellar chondromalacia” was forwarded as the sole submission to the Physical Evaluation Board (PEB) IAW AR 40-501.  The Informal PEB adjudicated “bilateral [PFPS]” as unfitting, rated 10%, citing criteria of the Veterans Affairs Schedule for Rating Disabilities (VASRD) and referencing the US Army Physical Disability Agency (USAPDA) Table of Analogous Codes (Memorandum #12).  The CI made no appeals, and was medically separated.

CI CONTENTION:  “I am having extreme problems keeping jobs or finding work that I can do, and my rating of 40% isn’t enough to pay any rent I contend.”

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 20070222	VA (18 Mo. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral PFPS	5099-5003	10%	Left Knee Patellar Chondromalacia	5260-5014	10%	20081118	
			Right Knee Patellar Chondromalacia	5260-5014	0%*	20081118	
Other x 0 (Not in Scope)	Other x 0	20081118	
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20081230 (most proximate to date of separation [DOS]).
* 0% rating derived from circumstance that the right knee could not be examined because it was post-op from a fracture sustained after separation in October 2008.

ANALYSIS SUMMARY:

Bilateral Knee Condition.  The CI was mobilized on 11 October 2006.  An orthopedic consult in the service treatment record (STR) provides the history that he “re-injured a previously injured right knee while doing combative training on 23 November 2006.”  This history is corroborated by a line-of-duty (LOD) inquiry and other STR comments.  The earliest dated entry in the available STR (18 November, prior to the LOD) relates a 3-year history of right knee pain with subjective complaints of locking and “feels unstable”; although, the physical exam records tenderness with no swelling or instability, but pain “throughout the range-of-motion [ROM].”  Subsequent follow-up visits were directed only at the right knee complaint.  A civilian physical therapy (PT) consultant in late November  addressed “recurrent injury of the right knee,” recorded a “mild right antalgic gait,” noted pain with extension causing “breakaway weakness,” documented stability in all planes without signs of cartilage impingement, diagnosed PFPS (right knee only), and issued a knee brace “when needed.”  Magnetic resonance imaging of the right knee at that time suggested “bone bruising” with no other abnormality, and later plain X-rays of the right and left knees were normal.  There are STR entries documenting an antalgic gait which improved over time, and entries which comment on grossly normal ROM with documentation of painful motion.  Orthopedic consultation (right knee only) was obtained in December 2006 (6 months prior to separation).  The orthopedist documented full ROM, no effusion, stability to stress testing in all planes, and specifically noted the absence of mechanical locking; and, referred the CI for a MEB (no surgery indicated).  The first STR entry documenting bilateral knee pain was in January 2004, a primary care note for “follow-up knee pain R>L”; and, a PT entry a month later noted a diagnosis of bilateral PFPS.  Bilateral knee flexion to 125 degrees (normal 140 degrees; minimum compensable 45 degrees) with documentation of painful motion was recorded on that visit.  After 3 weeks of PT for bilateral PFPS, therapy was discontinued because the CI maintained it was worsening his pain.  Concurrent primary care notes reported only right knee complaints, although the final STR entry (a week prior to separation) reported bilateral knee pain (“5/10 Moderate”).  The narrative summary (NARSUM) was conducted on 17 January 2007 (5 months prior to separation); and, addressed “bilateral knee pain” which was rated “slight/constant,” prohibiting running and limiting walking to “his own pace and distance.”  The NARSUM physical exam documented normal gait, bilateral knee tenderness and “obvious grinding,” and the absence of swelling (no documentation of testing for stability or cartilage impingement).  Formal ROM measurements for the MEB were conducted by PT on the same day, and were cited in the NARSUM: 135 degrees right flexion, 130 degrees left flexion, and bilateral extension of 0 degrees (normal), specifying the absence of painful motion.  The permanent L3 profile at separation was for “bilateral knee pain,” and the commander’s performance statement addressed only physical limitations “due to his medical condition.”  A VA Compensation and Pension exam was conducted on 18 November 2008 (18 months after separation), and was probative to the left knee only (see above rating chart footnote).  The VA examiner recorded severe pain and significant limitations, but did not differentiate total acuity (which included the much exacerbated right knee condition) from left knee symptoms and limitations.  The left knee exam noted “no joint effusion or laxity” and recorded ROM of 100 degrees flexion and -10 degrees extension (loss of extension was the basis for the VA 10% rating).

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s 10% rating was compatible with VASRD §4.71a criteria for “two or more major joints” under the PEB’s analogous code 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.  With regards to the latter, it is noted that the MEB referral was for the right knee only; thus, the left knee is subject to the provisions of DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral).  This stipulates, “If the evidence establishes that the Service member adequately performed his or her duties until the time the Service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  The evidence certainly indicates that the right knee was the dominant source of disability at separation, and there is a questionable basis for concluding that the left knee was reasonably justified as separately unfitting.  Furthermore, the bilateral diagnosis supported a single 5003 based rating for “2 or more major joints” (as applied by the PEB); thus there is VASRD §4.71a latitude for a bilateral rating.  There is no evidence for compensable ROM impairment, frequent effusions, or locking which would support a rating higher than 10% under any applicable code for either knee; and, no grounds for additional rating of instability.  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 of the bilateral knee 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 Table of Analogous Codes for rating was operant in this case, and it was adjudicated independently of that guidance by the Board.  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  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 20140422, 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 XXXXXXXXXXXXXXXXXXX, AR20150018793 (PD201401827)

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