RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-02667
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061108

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Cavalry Scout, medically separated for “chronic bilateral knee pain secondary to chondromalacia/patellofemoral pain syndrome,” with a disability rating of 0%.

CI CONTENTION:  The CI requests all conditions be considered.  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 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 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 - 20061023	VARD - 20071024	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain…	5099-5003	0%	Left Knee PFPS	5261	NSC	20070818	
			Right Knee PFPS	5261	NSC		
Left Ankle Pain	Not Unfitting	Left Ankle Pain	5270	NSC		
Hx of Nephrolithisasis		Kidney Stone…	7508	NSC		
Bilateral High-Frequency Sensorineural Hearing Loss…		Right Ear Hearing Loss	6100	0%	20070829	
		Left Ear Hearing Loss	6100	NSC		
		Bilateral Tinnitus	6260	10%		
Anxiety Disorder		Post-Traumatic Stress Disorder (PTSD) to Include Anxiety	9411	50%	20070906	
Personality Disorder, NOS…						
Smoking		No VA Placement	
Hx of Condyloma Acuminatum			
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

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 (degenerative arthritis) and rated 0%, with likely application of the VASRD.  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 Board 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 Board’s initial charge in this case was therefore directed at determining whether 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 Board 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 Board recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  Since all examinations were for bilateral knee pain, the evidence for the right and left knee conditions are presented together.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral knee pain began as early as February 2003, when he fell while running and hit his knees on the ground.  Radiographic studies (X-ray) in October 2005 showed possible early degenerative changes in the knees as well as possible left knee bipartite patella (a normally asymptomatic developmental disorder in which the kneecap does not fuse together in adolescence).  Later diagnostic imaging (MRI study) in December 2005 confirmed the normal variant bipartite patella on the left, and was otherwise normal.  There was no surgical indication.  Despite conservative treatment, the bilateral knee pain could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for an MEB.  The MEB forwarded “chronic bilateral knee pain, secondary to patellofemoral pain syndrome/chondromalacia” (pain around the kneecap/damage to cartilage under the kneecap) for PEB adjudication.  

At the time of the orthopedic MEB consultation on 27 December 2005, 10 months prior to separation, the CI reported bilateral knee pain with the left being more uncomfortable than the right.  The left knee was reported as being stiff after sitting for extended periods, and the CI indicated he could walk comfortably but could not run and stairs were painful for him to navigate.  On examination, neurologic function was intact with normal strength.  Tests for instability, laxity and patellar apprehension were negative.  Tenderness was absent on the left bipartite patella and range of motion (ROM) was reported as full.  Bone scan in March 2006 documented increased uptake at the left patella.  

During the MEB examination (recorded on DD Forms 2807 and 2808) dated 5 April 2006 (7 months prior to separation) the CI reported daily knee pain ranging from “not much at all” to mild.  Physical examination showed a positive patellar grind test (pain on compressive movement of the knee cap).  The physical profile dated 5 June 2006 listed chronic bilateral knee pain as one of the medical conditions, and gave an L3 PULHES code, indicating the defects or impairments of the lower extremities required significant restriction of use.   The MEB NARSUM examiner, on 22 June 2006 (5 months before separation), measured ROM at 0-135 degrees for the left knee and 0-125 for the right knee (normal 0-140).  There was no pain noted, and no swelling was seen or palpated.  The examination was otherwise normal.  The NARSUM examiner again saw the CI on 6 September 2006 (2 months prior to separation), at which time the CI indicated the knee pain was rated 2/10 in severity, left worse than right, rising to 8-9/10 with activity (also increased by cold weather).  He also reported occasional swelling and intermittent locking of the left knee.  Physical examination was not updated at this time, but instead referenced earlier exams (above).  The Commander’s Performance Statement (dated 13 September 2006) referenced bilateral knee pain as limiting the CI’s ability to perform duties.  

The VA completed an initial primary care clinic evaluation on 2 May 2007, 6 months after separation.  At this appointment, the CI reported constant knee pain rated 3/10 in severity that (along with his back pain) affected all activities of daily living.  He indicated the left knee would lock at times and that both knees cracked and popped.  Physical examination showed no tenderness, pain, swelling, or crepitus.  ROM was reported as normal with no pain on motion, and all testing was normal.  The examiner concluded that the bilateral knee examination was normal with no functional limitation.  

At the VA Compensation and Pension (C&P) examination on 18 August 2007 (9 months after separation), the examiner noted a normal gait, with no joint abnormalities and normal neurologic function.  Right knee ROM was recorded as “normal (145 degrees).”  There was no giving way when ROM was performed against force, and the CI did not complain of pain, but did indicate he felt like the knee might give out.  Testing for ligament integrity was normal and there was no tenderness.  There was no pain on motion.  Left knee ROM was not explicitly recorded, but the examiner indicated “all other joints were tested for range of motion 3 times and did not show any change in endurance, range, or laxity, weakness, or incoordination...”  Radiographic studies (X-ray) were normal bilaterally (noting incidental left bipartite patella), and the examiner concluded by indicating that neither pain nor evidence of pathology was present in the left or right knee.  

The Board directed attention to its rating recommendation based on the above evidence.  The Board first considered whether each of the knee conditions met the Board’s threshold for separate rating.  The Board concluded there was not a preponderance of evidence in the service records which overcame the presumption that the bundled knee condition was reasonably considered separately unfitting.  The Board then considered its rating recommendation for the individually unfitting knee conditions at the time of separation.  The PEB rated the bilateral knee condition 0%, coded 5099-5003 (analogous to degenerative arthritis), citing “no significant loss of joint motion.  X-rays do not indicate arthritic change.”  The VA, based upon the C&P examination performed 9 months after separation, indicated the left and right knee conditions (separately) were not service connected, citing lack of pain and no evidence of pathology.  

The Board adjudged that the Service exams were closer to separation and carried the highest probative value for rating at separation.  The Board majority considered that only one exam documented a positive patellar grind and that evidence for abnormal diagnostic imaging changes indicating arthritic changes was inconclusive.  There was no objective evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for either knee condition.  There likewise was no limitation of motion which attained a minimum 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), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258), or history of surgery to remove a meniscus (5259) to support a rating under the respective codes.  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).  No additional functional limitation was evidenced by the examinations.  There was no path to individually rating either knee separately at greater than 0%.  The Board then considered analogous rating under code 5003, however, there was insufficient evidence of degenerative changes to support rating under 5003.  

The Board majority concluded there was not sufficient evidence to support a rating higher than the 0% adjudicated by the PEB.  A change to separate ratings of 0% for each knee would offer no benefit to the CI.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority concluded that there was insufficient cause to recommend a change in the PEB adjudication for the chronic bilateral knee pain.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination the left ankle pain, history of nephrolithiasis (kidney stone), bilateral high-frequency sensorineural hearing loss, anxiety disorder, personality disorder NOS, smoking, and history of condyloma acuminatum (warts) were 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.  Only the bilateral hearing loss condition was profiled and adjudged to not meet retention standards.  None of the contended conditions were implicated in the commander’s statement.  There was no performance-based evidence from the record that any of these conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, and 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 any of the contended conditions, so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the “chronic bilateral knee pain secondary to chondromalacia/patellofemoral pain syndrome” condition and IAW VASRD §4.71a, the Board majority recommends no change in the PEB adjudication.  The single voter for dissent recommended modification and did not elect to submit a minority opinion.  In the matter of the contended left ankle pain, history of nephrolithiasis, bilateral hearing loss, anxiety disorder, personality disorder NOS, smoking, and history of condyloma acuminatum 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.  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 20140505, 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 XXXXXXXXXXXXXXXXXXXXX AR20160013865 (PD201402667)

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