RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02452
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060209

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard E4, Infantryman, medically separated for “chronic bilateral knee pain,” with a disability rating of 10%.   

CI CONTENTION:  “Please consider all conditions.”  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’s scope of review is defined in DoDI 6040.44.  It is limited to review of disability ratings assigned 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 or non-compensable.  Any conditions outside the panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’s assessment of the PEB rating determination is based on 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(s) at the time of separation.  The panel 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 panel 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 - 20051216	VARD - 50050316	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic b/l Knee Pain	5099-5003	10%	Residuals Left Knee Arthroscopy…	5260	NSC	20050126	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  50%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single service disability rating, coded analogously to 5003 and rated 10%, with application of the USAPDA pain policy.  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. The panel 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 panel’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 panel 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 panel 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 separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent left knee surgery to repair torn cartilage (partial medial meniscectomy for a complex meniscal tear) in March 2004.  At the 26 January 2005 VA Compensation and Pension (C&P) evaluation, 12 months before separation, the CI reported complete healing of the left knee with recurrent pain after returning to work.  The CI also reported having some limited pain only while jumping back and forth at work.  He denied right knee disability.  The physical examination showed a “strong” gait, with no problems while walking.  Left knee flexion was 140 degrees (normal 140) after 5 repetitions, without evidence of painful motion.  There was no evidence of laxity or meniscal injury.  At a 28 February 2005 ambulatory care visit, 11 months prior to separation, the CI reported continued pain with standing, but was able to walk and climb stairs without much discomfort.  He had recently attempted a 1/2 mile run/jog “with little pain.”  

The 28 July 2005 Commander’s statement referenced the CI’s “knee problems,” “knee condition,” and “knee injury” as preventing reasonable performance of duties without reference to a bilateral condition.  During the August 2005 MEB examination (recorded on DD Forms 2807 and 2808), 6 months prior to separation, the CI reported knee pain and wearing of a knee brace.  Physical examination showed left knee pain on full extension (normal 0 degrees) and no evidence of instability.  A right knee examination was not specifically recorded, however the diagnosis was “bilateral patellofemoral arthrosis.”  The 8 November 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of constant pain in both knees that worsened with squats or increased activity.  Physical examination showed an antalgic gait that “unloaded the left knee with weight bearing.”  Left knee flexion was to 105 degrees with pain and crepitus (a crackling or grinding sound or sensation in the joint).  There was tenderness along the knee and kneecap, and pain with ligamentous stress (anterior drawer and valgus stress).  There was no swelling, edema (swelling) or ligamentous laxity.  Right knee flexion was to 100 degrees with pain.  There was no tenderness and no evidence of laxity, however there was pain with ligamentous stress (anterior drawer test).  The Army Profile dated 5 December 2005 restricted activities for “bilateral knee pain.”  

The panel directed attention to the rating recommendation based on the above evidence.  The PEB rated the chronic bilateral knee pain condition 10%, coded 5099-5003 (analogous to arthritis, degenerative), citing the US Army Physical Disability Agency pain policy.  The VA used the 5260 code (leg, limitation of flexion of), but determined the condition was not service connected, based on the C&P examination 13 months before separation, citing evidence that the left knee condition was unrelated to military service.  The right knee was not claimed by the CI or rated by the VA.  The panel first considered if the right and left knee conditions, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The bilateral knee condition was profiled, implicated in the NARSUM, and both knee conditions were forwarded by the MEB and adjudicated as unfitting by the PEB.  The commander’s statement did not specifically reference the right or left knees individually, however did implicate a bilateral condition.  The panel concluded that there was not a preponderance of evidence of the service records that overcame the presumption that the bundled knee condition was reasonably considered separately unfitting.  

The panel next considered the rating recommendation for the separately unfitting right and left knee conditions at the time of separation.  

Right Knee Patellofemoral Syndrome.  There was NARSUM documentation of limited and painful motion of the right knee in support of a 10% rating analogously coded 5299-5261.  There was no evidence of recurrent subluxation or lateral instability for a higher rating under 5257.  There was no documentation of limitation of motion (5260 or 5261 coding) to support a higher rating.  There was no documentation of meniscal injury for a higher rating under the 5258 code (cartilage, semilunar, dislocated…).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.59 (painful motion), §4.40 (functional loss) and §4.45 (the joints), the panel recommends a disability rating of 10% for the right knee condition.  

Left Knee DJD and Pain Status Post Meniscal Surgery.  There was recurrent STR evidence of pain with motion to would support a 10% rating coded 5099-5003.  There was no evidence of recurrent subluxation or lateral instability for a higher rating using the 5257 code.  There was no documentation of limitation of motion (5260 or 5261 coding) sufficient to achieve a higher rating.  Although there was subjective report of pain, swelling, clicking and giving way, effusion was documented only once, 18 months prior to separation.  There was no documentation of recurrent locking or effusion, and no definite evidence of meniscal injury for additional/ higher rating under meniscal code 5258.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), §4.59 (painful motion), §4.40 (functional loss) and §4.45 (the joints), the panel recommends a disability rating of 10% for the left knee condition, coded 5099-5003.  

BOARD FINDINGS:  
In the matter of the chronic bilateral knee condition, the panel unanimously recommends separate disability ratings as follows: 10% for the right knee, coded 5299-5261, and 10% for the left knee, coded 5099-5003 IAW VASRD §4.71a.  There were no other conditions within the panel’s scope of review for consideration.  The panel recommends that the CI’s prior determination be modified as follows, effective as of the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Knee Patellofemoral Syndrome	5299-5261	10%	
Left Knee DJD and Pain Status Post Meniscal Surgery	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160920, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170007482, XXXXXXXXXXXXXXXXXX

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Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs and to the counsel you listed on your application; [name and address].

Sincerely,	 
Enclosure