RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX		CASE:  PD-2014-03258
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050510

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an activated National Guard E-4 (Motor Transport Operator) medically separated for chronic bilateral knee pain, with a disability rating of 0%.

CI CONTENTION:  The applicant asks that all conditions be considered.  His 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 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 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:  

IPEB - Dated 20050620	VA* - (~35 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain with onset in Dec 04	5099-5003	0%	Status Post Right Knee Meniscec-tomy, with Degenerative Changes	5010-5259	10%	20080331	
			Left Knee, Degenerative Changes	5010-5260	10%	20080331	
Fatty Infiltration of Liver	Not Unfitting	No VA Placement	
Adjustment Disorder		Major Depressive Disorder	9434	50%	20080401	
Migraines		No VA Placement	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 2	
RATING:  0%	RATING:  70%	
*Derived from VA Rating Decision (VARD) dated 20080616 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  The VA Compensation and Pension (C&P) examination was nearly 3 years remote from the date of separation and therefore was not considered in the final rating recommendation.  The examination probative value (PV) in this case remained exclusive to Medical Evaluation Board (MEB) driven documents and the few service treatment records (STR) contained in the case file
Bilateral Knee Pain Condition.  The service treatment record (STR) indicated that the CI had two separate knee injuries; right knee in December 2004 and left knee in January 2005.  Additionally, there was remote outpatient evidence that the CI had bilateral knee pain in late 1999 and surgery to the right knee in 2002.  Approximately 6 weeks prior to separation, an Orthopedic evaluation reflected normal knee X-rays, magnetic resonance image (MRI) and a physical examination (PE) noted as unreliable due to the apparent ‘symptom magnification’ with ‘non-anatomic’ light touch distribution.  The CI was permanently profiled with a diagnosis of bilateral knee pain in May 2005 and referred to an MEB.  His profile noted no running, jumping, or knee bends, but did allow to march up to one mile as well as to perform alternate Army Physical Fitness Training (APFT).  At the MEB examination (27 April 2005; 2 weeks before separation), the CI reported intermittent bilateral knee pain “lasting about 1/2 day at a pain level of 3/10” aggravated with bending, prolonged walking, squatting, or maneuvering stairs.  He endorsed the inability to run, jump, or do repetitive knee bends.  His PE revealed a normal gait.  There was bilateral knee tenderness without bruising, swelling, crepitus, atrophy, instability, or effusion.  Similar to the prior Orthopedic note referenced above, non-anatomic sensory distribution and symptom magnification were again documented.  There was no knee ROM measurement documented.  

The Board directed attention to its rating recommendation based on the above evidence.  As previously elaborated, the PEB bundled the chronic bilateral knee pain at 0% using an analogous 5003 code (degenerative arthritis) and citing “rated for minimal pain.”  The VA separately rated the left and right knees under the dual codes of 5010-5259 (traumatic arthritis) for the right knee and 5010-[5260] (limitation of flexion) for the left knee.  The Board first considered whether each knee condition remained separately unfitting, having decoupled them from the combined PEB adjudication.  Members agreed that it would be highly speculative to conclude that the minimal objective physical evidence found in either knee (separately) would cause the CI’s inability to perform within his military specialty; however, members also found it reasonable to surmise that it was the combination of pathology/symptoms from both knees that rendered him unfit for duty.  Absent knee ROM measurements near the time of separation, Board members were left to look specifically at other compensable VASRD rating criteria to include instability and or bony mal/non-union.  Members concluded that the MEB examination clearly reflected the absence of such criteria.  Additionally, the normal X-ray findings would also negate any consideration for rating under a non-analogous VASRD code of 5003.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), Board members agreed that the sole physical evidence of persistent tenderness about both knees would support a bundled 10% impairment rating analogously coded under 5003.  

Contended PEB Conditions.  The Board’s main charge is to assess the fairness of the PEB’s determination that fatty infiltration of liver, adjustment disorder, and migraine headaches 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.  None of the conditions were profiled or implicated in the commander’s statement and were not judged to fail retention standards.   All were reviewed 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’s fitness determination for the any of the contended conditions and so no additional disability ratings are recommended.

BOARD FINDINGS:  In the matter of the bilateral knee condition, the Board unanimously recommends a bundled disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended fatty infiltration of liver, adjustment disorder, and migraine headache 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 recommends that the CI’s prior determination be modified as follows, effective as of the date of his prior medical separation: 

CONDITION	VASRD CODE	RATING	
Bilateral Knee Pain	5099-5003	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140625, 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 XXXXXXXXXXXXXXXXXXXX, AR20160004425 (PD201403258)

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 10% 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