RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03026
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040719

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a Reserve E-6 (Personnel Administration) medically separated for chronic bilateral knee and bilateral foot pain, rated at 10%.  

CI CONTENTION:  Please consider all conditions.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  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 condition 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 confined to 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 IPEB – Dated 20040614	VA* - (~4 Mos. Post-Separation)	
Condition	Code	Rating	Condition	Code	Rating
	Exam	
Chronic Bilateral Knee and Bilateral Foot Pain	5099-5003	10%	Bilateral Knees Degenerative Changes	5003-5277	10%	20041129	
			Bilateral, Mild Osteoarthritic Changes First Metatarsophalangeal	5003-5279	10%	20041129	
			Bilateral, Inferior Calcaneal Spurs	5284	10%	20041129	
Left Ear Sensory Neural Hearing Loss	Not Unfitting	Left Ear Hearing Loss	6100	0%	Service Treatment Record	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  10%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20050408 (most proximate to date of separation [DOS])

ANALYSIS SUMMARY: :  The Physical Evaluation Board (PEB) combined the bilateral knee and the bilateral foot conditions as a single unfitting condition coded 5099-5003 (Analogous to arthritis) and rated 10%, and relied on 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 rating guidelines.  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.  Thus, in this circumstance the Board must first deliberate separate fitness recommendations for the bilateral knee and bilateral foot conditions, and then deliberate separate fitness recommendations for the right and left knees and the right and left feet, if appropriate, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.

Chronic Bilateral Knee.  The Medical Evaluation Board (MEB) narrative summary (NARSUM) notes the CI had a long history of bilateral knee pain, recently aggravated by physical training.  Knee X-rays reportedly showed degenerative changes bilaterally.  At the MEB NARSUM exam 29 March 2004, 4 months before separation, the CI reported chronic bilateral knee pain.  The MEB physical exam noted crepitus with range-of-motion (ROM) and tenderness to palpation of the patellar region bilaterally.  Right knee ROM was extension-flexion of 3 to 85 degrees (normal 0-140) and left knee ROM was 3 to 84 degrees, both with painful ROM.  The knees were stable and lower extremity (LE) strength and sensation was normal.

At the VA Compensation and Pension (C&P) exam 29 November 2004, 4 months after separation, the CI reported bilateral knee pain that prevented running, kneeling, or squatting, but she reported she could walk three miles or more, three times per week.  The VA examiner commented that the “collective lower extremity symptoms” did not interfere with the CI’s work or daily activities.  The exam was reported for the bilateral knees and noted full ROM, without pain or crepitus noted, and there was no additional limitation of motion with repetitive use.  Both knees were stable without swelling or deformity.  Knee X-rays showed evidence of degenerative changes of the patellofemoral joint bilaterally.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the combined bilateral knee and foot conditions 10%, coded 5099-5003, and cited the pain policy as noted above.  The VA rated the bilateral knees 10%, coded 5003-5257 (Other knee impairment with degenerative arthritis).  The Board first attempted to unbundle the bilateral knees from the bilateral feet conditions as elaborated above.  The commander’s statement indicated the CI was incapable of performing the duties of her MOS due to chronic left knee pain.  However, the Board noted one temporary profile in April 2003 then two permanent profiles in April 2003 and February 2004 listed bilateral knees as limiting.  The MEB exam addressed the bilateral knees and the exam findings were reported as the same for both knees; and, there was X-ray evidence of DJD of both knees.  Members agreed that the functional implications of both the right and left knee conditions supports their recommendation as reasonably justified as unfitting at separation when considered apart from the bilateral foot condition, and therefore eligible for individual disability ratings.  The Board noted that the history, exam, and imaging evidence were identical for the right and left knees at both the MEB and post-separation C&P exams.  The Board agreed the evidence at the MEB NARSUM supports a 10% rating for each knee coded analogously as 5299-5260 for limited flexion (or 5299-5261 for limited extension), IAW VASRD §4.59 (Painful motion); however, did not meet a 10% rating based on limited ROM alone for either code.  

The C&P exam (4 months after separation) showed bilateral knee improvement with a completely normal clinical exam for both knees.  The CI reported the knees had no significant impact on her daily activities and she regularly walked nine or more miles per week.  Member consensus was that shortly after separation the knees did not meet a 10% rating either based on ROM alone or with considerations of §4.59 (Painful motion) and §4.40 (Functional loss).  However, there was X-ray evidence of degenerative arthritis of both knees, and therefore the bilateral knees met a 10% rating coded as 5003 for “X-ray evidence of involvement of 2 or more major joints.”  The Board reviewed to see if a higher rating was supported for either or both knees with any applicable code, however there was no evidence for either knee of symptomatic semilunar cartilage injury, instability, impairment of the femur, tibia or fibula, or ankylosis.  Therefore, the Board majority determined that both knees were unfitting, but met a 10% rating, coded as a bilateral condition, and no higher, including with consideration of functional loss.  After due deliberation, considering all of the evidence the Board majority recommends a separately unfit determination with a disability rating of 10% for the bilateral knee condition, coded 5003.

Bilateral Foot Pain.  The MEB narrative summary (NARSUM) notes the CI had a long history of foot pain that was also recently aggravated by physical training.  Bilateral foot X-rays reportedly showed evidence of degenerative changes of the first metatarsophalangeal joint (MTPJ or great toe) of the left foot and heel spurs bilaterally.  According to the MEB NARSUM the CI was diagnosed with plantar fasciitis of the right foot by podiatry.  At the MEB NARSUM exam 4 months before separation, the CI reported bilateral foot pain.  The physical exam did not address the feet.  At the VA Compensation and Pension (C&P) exam 4 months after separation, the CI reported a long history of recurrent foot pain, but no current medication use for the feet.  The CI reported that she had been variably diagnosed with plantar fasciitis and heel spurs, but that often the pain was localized to the first MTPJs bilaterally, which were treated by steroid injections once.  The VA examiner noted “she eliminates almost all symptoms by avoiding running and wearing sensible, comfortable footwear.”  The VA exam was reported for the bilateral feet.  There was no abnormal wear of the shoes and no tenderness of palpation of the plantar fascia.  Ankle and toe ROM was normal and there was no additional limitation of motion with repetitive use.  There was mild hallux valgus bilaterally, and normal alignment of the Achilles tendons.  Foot X-rays noted arthritis of the first MTPJs and heel spurs bilaterally.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the combined bilateral knee and foot conditions 10%, coded 5099-5003 as noted above.  The VA rated the bilateral feet 10%, coded 5284 (Other foot injury).  The Board first reviewed to see if the bilateral foot conditions remained reasonably justified as unfitting when separated from the PEB’s combined adjudication.  The commander’s statement did not note the foot conditions as impairing the CI’s duty performance and the MEB exam did not address either foot.  However, the permanent profile listed bilateral heel spurs and left toe spurs.  The MEB NARSUM noted the CI was diagnosed with plantar fasciitis of the right foot by a podiatrist and included the diagnosis of chronic bilateral foot pain.  Foot X-rays noted degenerative changes bilaterally; and the bilateral foot condition was forwarded by the MEB as medically unacceptable.  Members agreed that the functional implications of both the right and left foot conditions supports their recommendation as reasonably justified as unfitting at separation when considered apart from the bilateral knee condition, and therefore eligible for individual disability ratings.  The Board noted that the history exam findings were identical for the right and left feet at the post-separation C&P exam.  The imaging of the feet noted heel spurs and arthritis of the first MTPJs bilaterally, which the Board considered degenerative changes.

The Board agreed the evidence in record supports a 10% rating for the bilateral foot condition, coded 5003, for “X ray involvement of 2 or more groups of minor joints.”  The Board reviewed to see if a higher rating was supported for one or both feet with any other applicable code.  The C&P exam was the only exam of the feet in record and noted mild hallux valgus (deformity of the great toe - bent toward the other toes) bilaterally, which is ratable at 10% only if it is severe or following surgical resection.  There were no other toe deformities or foot deformities, such as flatfoot or claw foot.  There was no evidence in record of tarsal/metatarsal malunion/nonunion and proximate to separation there was no evidence of metatarsalgia of either foot, which the history indicates the CI had been treated for in the past.  Additionally, there was no tenderness to palpation of the feet, pain with motion, or additional functional loss of the feet with repetitive use noted at the C&P exam.  Therefore, the Board determined that both feet were unfitting, but met a 10% rating, coded as a bilateral condition, and no higher, including with consideration of functional loss.  After due deliberation, considering all of the evidence the Board recommends a separately unfit determination with a disability rating of 10% for the bilateral foot condition, coded 5003.

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that the sensorineural hearing loss condition of the left ear was 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.  The MEB NARSUM notes that the CI developed hearing loss during this period of active duty.  At an undated audiology evaluation the CI reported having a cold in May of 2003 with ear symptoms and abnormal hearing since that time.  She reported occasional ringing in her ear, but no other ear symptoms.  As part of the hearing loss evaluation the CI had magnetic resonance imaging (MRI) to rule out a tumor and the MRI was normal.  Audiology determined it was permanent sensorineural hearing loss and the CI was given a hearing aid.  The MEB NARSUM noted the CI had an H2 profile.  The permanent profile was H2 and noted “use caution assigning this soldier to duties that require acute listening abilities.”

The Board noted that the CI was given an H2 profile and a designation of “2” on a profile indicates a condition which requires some limitations, but is not in all cases disqualifying for continued military service.  The hearing loss condition was not implicated in the commander’s statement or judged to fail retention standards.  There was no performance based evidence from the record that the hearing loss condition 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 left ear hearing loss condition and so no additional disability rating is 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 and foot condition was operant in this case and the condition was adjudicated independently of that policy by this Board.  In the matter of the bilateral knee and bilateral foot condition, the Board unanimously finds each individual condition as reasonably justified as separately unfitting.  In the matter of the right and left knee conditions, the Board majority recommends a single 10% rating, coded 5003.  The single voter for dissent submitted the appended minority opinion.  In the matter of the right and left foot conditions, the Board unanimously recommends a single 10% rating, coded 5003.  In the matter of the contended left ear hearing loss condition the Board unanimously recommends no change from the PEB determination as not unfitting.  There were no other conditions within the Board’s scope of review for consideration.

The Board recommends that the CI’s prior determination be modified as follows, effective as of the date of her prior medical separation:

CONDITION	VASRD CODE	RATING	
Bilateral Knee Pain Condition	5003	10%	
Bilateral Foot Pain Condition	5003	10%	
RATING (w/ BLF)	20%	

The following documentary evidence was considered:
Exhibit A.  DD Form 294, dated 20140624, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans’ Affairs Treatment Record

MINORITY OPINION: Based on VASRD §4.3 (Reasonable doubt), the minority finds the deliberated evidence supports a 10% rating for each knee versus the majority vote’s single 10% recommendation.

The goniometric range-of-motion (ROM) evaluations in evidence which the Board weighed in arriving at the majority and minority rating recommendations are summarized in the chart below.

Knee ROM
(Degrees)	MEB ~4 Mo. Pre-Sep
(20040329)	VA C&P ~4 Mo. Post-Sep
(20041129)	
	Left	Right	Left	Right	
Flexion (140 Normal)	84	80	140	140	
Extension (0 Normal)	3	3	0	0	
Comment	Painful motion	Painful motion	DJD on X-rays	
§4.71a Rating	10%	10%	10%	
	PEB 10% w/ B/L Foot	VA 10%	

The minority finds the MEB NARSUM exam (4 months prior to separation) holds the highest probative value over the VA C&P exam performed 4 months after separation.  The majority placed probative value on the C&P exam.  The MEB NARSUM exam and VA C&P exam are both compliant with §4.46 (Accurate measurement) and equal distant to the date of separation.  However, the NARSUM took place while the CI was still in service; and most importantly, there were no other knee examinations conducted prior to separation.  The minority finds that the MEB NARSUM exam best reflects the CI’s knee disability at the time of separation.

The minority determined it is speculation, there is no objective evidence, to determine if the CI’s unfitting-chronic-bilateral knee pain was ‘completely clinically normal’ at the time of separation; as recorded by the C&P exam 4 months after separation.

Also noted in the Record of Proceedings above, “The Board agreed the evidence at the MEB NARSUM supports a 10% rating for each knee coded analogously as 5299-5260 for limited flexion (or 5299-5261 for limited extension), IAW VASRD §4.59 (Painful motion).” 

Consequently, based on VASRD §4.3 (Reasonable doubt), the minority finds a 10% rating for each knee.

RECOMMENDATION:  The Board minority, therefore, recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be recharacterized to reflect permanent disability retirement, effective as of the date of her prior medical separation:

CONDITION	VASRD CODE	RATING	
Right Knee Pain Condition	5299-5260	10%	
Left Knee Pain Condition	5299-5260	10%	
Bilateral Foot Pain Condition	5003	10%	
RATING (w/ BLF)	30%	

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 XXXXXXXXXXXXXXXXXXXX, AR20160005003 (PD201403026)

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,
accept the Board's recommendation to modify the individual's disability rating to 20%
without re-characterization 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:

CF:
( ) DoD PDBR
( ) DVA