RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02056
BRANCH OF SERVICE:  Army	BOARD DATE:  20141106
SEPARATION DATE:  20060407

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard SPC/E-4 (11B/Infantry) medically separated for bilateral knee pain.  The bilateral knee pain 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 knee pain condition, characterized as “bilateral knee pain” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  The MEB also identified and forwarded four other medically acceptable conditions (bilateral ankle pain, bilateral foot pain, allergic rhinitis and hyperlipidemia) to the PEB.  The Informal PEB adjudicated “bilateral knee pain” as unfitting, rated at 10% citing application of the US Army Physical Disability Agency (USAPDA) pain policy.  The remaining conditions were determined to be not unfitting.  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

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 CI.  The rating for the unfitting bilateral knee pain is addressed below.  The requested not unfitting conditions are likewise addressed below.  Any conditions or contention not requested in this application, or otherwise outside the Board’s defined scope of review, remain eligible for future consideration by the Board for Correction of Military Records.

RATING COMPARISON:

Service IPEB – Dated 20060308	VA - (2.4 Mos. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	Degenerative Arthritis, Left Knee	5010-5260	0%	20060126	
			Chondromalacia, Right Knee	5024-5260	0%		
Bilateral Ankle Pain	Not Unfitting	Left Ankle Condition	5271	NSC		
		Right Ankle Condition	5271	NSC		
Bilateral Foot Pain	Not Unfitting	Left Foot Condition	5284	NSC		
		Right Foot Condition	5284	NSC		
Allergic Rhinitis	Not Unfitting	Allergic Rhinitis	6522	NSC		
Hyperlipidemia	Not Unfitting	No VA Entry				
Other x 0  (Not in Scope)	Other x 0		
Combined:  10%	Combined:  10%	
Derived from VA Rating Decision (VARD) dated 20060418 (most proximate to date of separation)

ANALYSIS SUMMARY:  The PEB combined the knees as a single unfitting condition, coded analogously to 5003 (degenerative arthritis) and rated 10%.  The PEB may have relied on AR 635.40 (B.24 f.) and/or the USAPDA pain policy for not applying separately compensable VASRD codes.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, however, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself.  Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting and that there was no need for separate fitness adjudications rather than a judgment that each condition was independently unfitting.  Thus, the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Bilateral Knee Condition. The records show that the CI had arthroscopy of both knees in 1999 secondary to injuries from playing basketball.  The record then falls silent until 9 September 2005, (3 weeks after activation), when he reported a 2-day history of right knee pain after jumping down from a truck.  He was treated conservatively, but subsequently developed left knee pain.  On 5 October 2005, X-rays of the left knee showed degenerative changes.  X-ray images, presumably of the right knee, were normal.  He was seen in orthopedics that day and noted to have essentially a normal examination other than bilateral tenderness.  A magnetic resonance imaging (MRI) of the left knee on 19 October 2005 showed degenerative changes of the kneecap.  He was managed with physical therapy and duty limitations, but did not have improvement in his pain sufficient to return to full duty.  The CI was issued an L3 profile on 28 December 2005 and entered into the MEB process.  

In the MEB narrative summary dated 26 January 2006 (2 months prior to separation), the CI reported pain in the right knee controlled with rest, medications and therapy, but aggravated by activity.  An MRI had shown some degenerative changes of the kneecap.  The left knee was thought to have patella-femoral pain syndrome which responded to medications.  The MEB physical examination was remarkable for mild crepitus (abnormal sound or sensation) of the left knee, but the range-of-motion (ROM) was normal bilaterally, as were tests for meniscal irritation, instability and strength.  The gait was normal and neither knee was tender to palpation.  The examiner then noted that the MRI findings were for the left knee and that X-rays of both knees were normal.  The diagnosis was bilateral knee pain.  Painful motion was not recorded.  

At the VA Compensation and Pension examination performed the same day, the CI had a normal gait.  On examination, the ROM was full bilaterally.  The knees were stable to examination and non-tender.  Painful motion was absent.  There was no additional loss of motion with repetitive motion.  Mild crepitus was again noted in the left knee.  The left knee was noted to have chondromalacia patella (degenerative changes of the cartilage of the kneecap), but no pathology was found for the right knee.

The Board directs its attention to its rating recommendation based on the above evidence.  It first considered if the knees would be separately unfitting and ratable if unbundled.  The left knee had pathology on MRI and crepitus on examination.  The examination of the right knee was normal and it is not clear from the records that an MRI of the right knee was performed.  However, both were profiled and both found to be medically unacceptable.  The commander did not detail which physical condition impaired duty.  The Board determined that each knee could be found separately unfitting.  It then considered the appropriate rating.  The PEB rated the knees at 10% as a combined condition using the analogous code 5099-5003 (degenerative arthritis).  The VA rated each knee at 0% using the code 5010-5260 (traumatic arthritis and limitation in flexion), respectively, for the left knee and 5024-5260 (tenosynovitis and limitation in flexion), for the right knee.  The Board noted that the ROM was normal for each knee at both examinations as was the gait.  There was no tenderness, on the VA examination and neither examination documented incapacitation, instability, an effusion, meniscal irritation or painful motion.  The Board considered the coding options for the knees and found no route to a rating higher than the 10% rating adjudicated for bilateral knee pain using the 5099-5003 code.  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 pain condition.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the bilateral ankle pain, bilateral foot pain, allergic rhinitis and hyperlipidemia conditions were not unfitting.  The Board’s threshold for countering fitness determinations is higher than the VASRD §4.3 (reasonable doubt) standard used for its rating recommendations, but remains adherent to the DoDI 6040.44 “fair and equitable” standard.  The ankle and foot pain were profiled, but the other two conditions were not.  None were implicated in the commander’s statement and none were judged to fail retention standards.  Review of the records shows that the ankle and feet pain were only noted in conjunction with the knee pain and not seen separately.  The hyperlipidemia is a laboratory finding and not a physical disability which is ratable.  All were reviewed by the action officer and considered by the Board.  There was no performance based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance.  After due deliberation 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 any of the contended conditions and so no additional disability ratings are recommended.

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 for rating the bilateral knee pain condition was operant in this case and the condition was adjudicated independently of that policy by the Board.  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 contended bilateral ankle pain, bilateral foot pain, allergic rhinitis, and hyperlipidemia conditions, the Board unanimously recommends no change from the PEB determinations as not unfitting.  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 20140424, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

		
XXXXXXXXXXXXXXXXX
President
DoD 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 XXXXXXXXXXXXXXXXX, AR20150008209 (PD201402056)

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:

Encl						     XXXXXXXXXXXXXXXXX
						     Deputy Assistant Secretary of the Army
						          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA