RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXX	CASE:  PD-2014-02990
BRANCH OF SERVICE:  Army	BOARD DATE:  20141105
SEPARATION DATE:  20030703

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty SPC/E-4 (12B/Combat Engineer) medically separated for bilateral knee pain.  This knee condition did not improve adequately to meet the physical requirements of his Military Occupational Specialty or satisfy physical fitness standards.  He was issued a permanent L3 profile and underwent a Medical Evaluation Board (MEB).  The bilateral knee condition was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other conditions were submitted by the MEB.  The Informal PEB adjudicated the knee condition as unfitting, rated at 0% citing criteria of the US Army Physical Disability Agency (USAPDA) pain policy.  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 condition is addressed below.  No other conditions are within the defined purview of the Board.  Any conditions outside the Board’s scope of review may be eligible for consideration by the Board for Correction of Military Records.

IAW DoDI 6040.44, the Board’s authority is limited to making recommendations on correcting disability determinations.  The Board’s role is thus confined to the review of medical records and all evidence at hand to assess the fairness of PEB rating determinations, compared to Veterans Affairs Schedule for Rating Disabilities (VASRD) standards, based on ratable severity at the time of separation.

RATING COMPARISON:

Service IPEB – Dated 20030417	VA* – (~1 mo. Pre-Separation)	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	0%	Bilateral Knee Pain	5299-5262	NSC**	20030529	
Other  x 0 (Not in Scope)	Other x 10	
Rating:  0%	Combined:  30%	
*Derived from VA Rating Decision (VARD) dated 20030820 (most proximate to date of separation)
**Subsequent VARD dated 20060428 rated left and right knees (5099-5014) at 10% each, effective 20050927

ANALYSIS SUMMARY:

Bilateral Knee Pain.  In July 2003, this CI was separated from service due to bilateral knee pain.  It started around September 1997 and worsened over time.  There was no specific injury or trauma associated with the onset of pain.  His MEB physical exam (PE) was in February 2003.  At that visit, the CI reported pain in the retropatellar and lateral aspects of both knees.  He was unable to run, ruck or road-march.  PE of the knees revealed normal knee alignment and normal range-of-motion (ROM).  Tests for ligamentous laxity were negative.  The diagnosis was:  “Chronic bilateral knee pain.”  A month prior to separation, on 29 May 2003, the CI had a VA Compensation and Pension exam.  He reported occasional bilateral knee pain.  Gait and station were normal.  PE of the knees revealed no swelling or deformity.  ROM was normal and tests for ligamentous laxity were negative.  The examiner wrote: “Basically normal evaluation of the knees.  Cannot ascribe any physical diagnosis, nor attribute any physical impairment to this complaint.”  The ROM evaluations which the Board weighed in arriving at its rating recommendation are summarized in the chart below.

Knee ROM
(Degrees)	MEB ~3½ mos. Pre-Sep
(20030319)	VA C&P ~1 mo. Pre-Sep
(20030529)	
	Left	Right	Left	Right	
Flexion (140 Normal)	140	140	140	140	
Extension (0 Normal)	0	0	0	0	

The Board carefully reviewed all evidentiary information available and directs attention to its rating recommendation.  The Army PEB combined the CI’s knee pain into a single unfitting condition:  “Bilateral knee pain, without any specific history of trauma or injury.”  The knee pain was coded 5099-5003 and rated at 0%.  The Board evaluated whether or not it was appropriate for the two knees to be “bundled” together.  The Board must determine if the PEB’s approach of combining the conditions under a single rating was justified in lieu of separate ratings.  The Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW the VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted, however, it must satisfy the requirement that each ‘unbundled’ condition was separately unfitting.  After due deliberation, the Board determined by majority decision (2:1 vote) that each knee is reasonability justified as separately unfitting.  Accordingly, the Board recommends a separate disability rating for each knee.

The painful knee condition was essentially non-compensable based on the VASRD §4.71a diagnostic codes 5260 and 5261 (loss of knee motion).  However; IAW VASRD §4.40, §4.45, and §4.59, when part of the musculoskeletal system becomes painful on use, it must be regarded as seriously disabled.  A 10% rating is warranted when there is satisfactory evidence of functional limitation due to painful motion of a major joint.  There was no path to a rating higher than 10% for either knee since there was no evidence of ligamentous instability, subluxation, locking, or other significantly disabling joint abnormality.  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 chronic unfitting right knee pain.  In like manner, the Board recommends a rating of 10% for chronic unfitting left knee pain.

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 was operant in this case and the condition was adjudicated independently of that policy by the Board.  In the matter of the chronic right knee pain, the Board recommends by majority decision, a disability rating of 10%, coded 5299-5257 IAW VASRD §4.40, §4.45 and §4.59.  In the matter of the chronic left knee pain, the Board recommends by majority decision, a disability rating of 10%, coded 5299-5257 IAW VASRD §4.40, §4.45 and §4.59.  The single voter for dissent did not elect to submit a minority opinion.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, 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	
Chronic Right Knee Pain	5299-5257	10%	
Chronic Left Knee Pain	5299-5257	10%	
COMBINED (w/ BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140623, 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 XXXXXXXXXXXXXXXXX, AR20150006236 (PD201402990)

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 20% 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						     
CF: 
(  ) DoD PDBR
(  ) DVA