RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03715
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20070112

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty, E4, Military Police, medically separated for “chronic bilateral exercise-related knee pain,” with a disability rating of 0%.

CI CONTENTION:  The CI contends she was “…discharged for several medical conditions caused by a service-connected accident that rendered me unfit for duty…said injuries/disorders affect daily life.”  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 - 20061108	VARD - 20071102	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	Bilateral RPPS	5260	10%	20070801	
Migraine Headaches	Not Unfitting	Migraine Headaches	8100	NSC		
Polyarthralgia		Multiple Joint Discomfort	5003			
Chronic Low Back Pain		Low Back Pain	5237			
Anxiety Disorder		Anxiety Disorder	9413		STR	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  Board clarification concerning its approach to PEB, consolidated knee, ratings.  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 application of the US Army Physical Disability (USAPDA) Pain Policy.  This approach by the PEB not uncommonly reflected its judgment that the constellation of knee 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 VASRD 5003 criteria, and that this approach does not compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  Additionally, VASRD §4.31 indicates that “in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.”  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 Disability Evaluation System (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.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI had a history of bilateral knee pain dating to adolescence which was aggravated by a fall during basic training.  Imaging (X-ray and MRI) was normal and examinations were consistent with the working diagnosis of chronic bilateral patellofemoral syndrome (PFS).  There were STR clinical entries confirming a normal gait, bilateral grossly normal range of motion (ROM), and the absence of effusion or instability for either knee.  There was no evidence to the contrary, and specifically no entry suggesting a limitation of knee extension.  Surgery was not indicated; conservative treatment did not result in improvement sufficient to allow unrestricted duty; and, the CI was referred for an MEB which in turn forwarded “[bilateral] patellofemoral syndrome” to the PEB.  

The NARSUM examination on 18 September 2006 (4 months prior to separation) documented “constant pain in the bilateral knees” (no indication of greater severity for either joint) rated 4/10 with exacerbations to 10/10 by running, stairs, jumping, squatting, lifting more than 30 pounds, or standing longer than 20 minutes.  The physical examination recorded patellar tenderness without comment regarding gait, effusion or stability.  The charted ROM measurements were average flexion to 140 degrees for both knees (normal 140, 45 for minimum 10%) and average extension of (presumptively as minus degrees, but not specified) 15 degrees on the left and 20 degrees on the right (normal 0, minus 10 degrees for minimum 10%), specifying pain as the limiting factor.  The commander’s performance statement did not provide evidence probative to separate fitness implications of either knee, and the profile was for “bilateral knee pain.”  

At a VA Compensation and Pension (C&P) examination on 1 August 2007, 7 months after separation, the examiner documented “recurrent bilateral knee pain” and specified that it was not incapacitating, interfering with daily activities, or associated with occupational impairment.  The physical examination recorded a normal gait and the absence of tenderness, swelling, or instability.  The ROM measurements (bilateral) were flexion to 110 degrees and extension 0 degrees, specifying the absence of painful motion or DeLuca degradation.  

The Board directed attention to its rating recommendation based on the above evidence.  The PEB’s bilateral 0% rating rested on application of the USAPDA pain policy as above; but, a bilateral rating of 0% does not comport with VASRD §4.71a which confers a 10% rating under 5003 for the involvement of “2 or more major joints” without specifying a need for additional criteria.  The VA (referencing the C&P evidence) also combined both joints under a single code, conferring a 10% rating under code 5260 (limitation of flexion).  The rationale for combining the ratings was, “The condition does not appear severe enough to warrant separate compensable evaluations for each knee.”  There is no provision in §4.71a for rating more than one joint under the same ROM code as pursued by the VA, although the C&P evidence supported a VASRD-compliant bilateral 10% rating under criteria of 5003.   The Board noted that the ROM evidence from the NARSUM met separately compensable thresholds under code 5261 (limitation of extension), 20% for the left and 30% for the right; but, members agreed that the probative weight of that evidence was too weak as a basis for those recommendations.  There was a preponderance of contrary evidence from the rest of the STR and the C&P examination.  This inexplicable and significant finding was not elaborated by the NARSUM examiner, and such severe limitation of extension was inconsistent with the established pathology.  There was no evidence for instability, locking, or frequent effusions which would achieve a rating higher than 10% for either knee; and, there was no evidence contrary to §4.71a criteria for a 5003-based bilateral rating of 10%. The Board was thus left with deciding whether or not the knees were reasonably justified as separately unfitting as a basis for recommending separate 10% ratings.   

In this case, there was no evidence that one joint caused more functional impairment than the other, and the overall functional impairment was not severe.  Members agreed, given the pathology and clinical acuity described above, that it was reasonable to conclude that the performance limitations confined to either knee alone would not have rendered the CI incapable of continuing military service; and, that more likely it was the combined effect of the bilateral condition which rendered her unfit.  Members thus agreed that a bilateral 10% rating under 5003 was appropriate.   After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommended a 10% rating for the bilateral knee condition under code 5024 (tenosynovitis, defaulting to criteria of 5003).

Contended PEB Conditions:  Migraine Headaches, Polyarthralgia, Chronic Low Back Pain, and Anxiety Disorder.  The Board’s main charge is to assess the fairness of the PEB’s determination the contended conditions 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.  These conditions were not permanently profiled or implicated in the commander’s statement and were judged to meet retention standards.  Specifically, regarding the anxiety disorder, a psychiatric addendum to the NARSUM dated 15 September 2006 stated that the condition met retention standards and “does not meet the criteria for a MEB ... no evidence of an emotional or mental condition of sufficient severity to warrant disposition through medical channels.”  There was no performance-based evidence from the record that any of the above 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 the migraine headaches, polyarthralgia, chronic low back pain, or anxiety disorder; thus, none are eligible for Service disability rating.  

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended migraine headache, polyarthralgia, back pain and anxiety 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 the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Patellofemoral Pain Syndrome, Bilateral Knees	5024	10%	

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

SAMR-RB										

MEMORANDUM FOR Commander

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXXXXX, AR20160017208 (PD201403715)

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