RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXX	CASE:  PD-2014-03885
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20061201

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-5 (Infantryman) medically separated for bilateral knee pain.  The condition could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  The profile allows for an alternate aerobic event to satisfy physical fitness standards.  He was issued a permanent L3 profile and referred for a Medical Evaluation Board (MEB).  The “bilateral anterior knee pain, probably secondary to old Osgood-Schlatter disease and to patellar malalignment, not improved with surgical treatment on both knees” was forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated his bilateral knees as unfitting, rated 0%, citing application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  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 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 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 20060829	VA* - (~3 Mos. Post-Separation)  	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5009-5003	0%	Ligamentous Instability of the Right Knee	5257	10%	20070216	
			Left Knee Meniscal Injury, Patellar Tendonitis	5260	10%	20070216	
			Patellar Tendonitis, Right Knee	5260 	10%	20070216	
Other MEB/PEB Conditions x 0 (Not In Scope)	Other x 8 	
RATING:  0%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20070518 (most proximate to date of separation [DOS]).  

ANALYSIS SUMMARY:  The PEB combined the left and right knee conditions as a single unfitting condition, coded analogously to 5003 and rated 0%.  This is in accordance with the VASRD.  However, the Board must apply separate codes and ratings in its recommendations if compensable ratings for each condition are achieved IAW VASRD §4.71a.  If the Board judges that two or more separate ratings are warranted in such cases, it must satisfy the requirement that each “unbundled” condition was unfitting in and of itself.  Not uncommonly this approach by the PEB reflects its judgment that the constellation of conditions was unfitting, and that there was no need for separate fitness adjudications, not a judgment that each condition was independently unfitting.  Thus the Board must exercise the prerogative of separate fitness recommendations in this circumstance, with the caveat that its recommendations may not produce a lower combined rating than that of the PEB.  

Bilateral Knee Pain.  The first record in evidence is an X-ray report dated 15 March 2004.  The history noted a 2+ year history of bilateral knee pain and the X-rays were consistent with bilateral Osgood-Schlatter Disease (an inflammation of the patellar [kneecap] ligament at its insertion into the tibia [shinbone], typically seen in adolescence).  He was seen in orthopedics on 13 April 2004 and noted to have increasing symptoms over the past 3 years.  He was tender at the site of the patellar insertion into the tibia (tibial tuberosity) bilaterally; the examination was otherwise unremarkable.  The examiner concurred with the diagnosis of bilateral Osgood-Schlatter Disease and recommended activities as tolerated.  Despite the above, he continued to have pain and an ossicle (a small bone near the patella) was removed from the left knee in September 2004.  He recovered well clinically, but had persistent pain on the right.  He remained on a profile and was determined to not be fit to deploy.  Electrodiagnostic studies on 13 July 2005 were normal, indicating a mechanical (vice neurological) cause of his persistent pain.  He was noted to have stable knees when seen in orthopedics a week later.  Due to persistent pain, he had surgery on the right knee on 1 November 2005 to enable better patellar tracking over the knee joint.  He was seen regularly after the surgery and showed improvement in function.  The knees were noted to be stable on multiple examinations.  However, the pain did not resolve and the CI was unable to meet duty requirements.  

The commander noted on 1 May 2006 that the CI’s performance had been exemplary in a rear detachment.  The narrative summary (NARSUM) was dated 29 June 2006, 5 months prior to separation.  The CI reported that he could only walk short distances, but could ride a bike and swim for fitness.  On examination, both knees were stable, but testing was uncomfortable.  The range-of-motion (ROM) was reduced, but pain was not recorded.  Testing for meniscal (cartilage cushions in the knees) was uncomfortable, but not diagnostic for a meniscal injury.  The Board noted that the CI had diagnostic arthroscopy as part of both surgical procedures and neither ligamentous nor meniscal pathology was recorded at either.  He was diagnosed with bilateral anterior knee pain, probably secondary to old Osgood-Schlatter Disease and to patellar mal-alignment.  At the MEB examination on 13 June 2006, the examiner noted that the examination was incomplete secondary to pain.  An orthopedic examination on 29 November 2006, 2 days prior to separation, documented full ROM bilaterally, no effusion, “almost no patellofemoral pain,” and stable knees.  The quadriceps muscles were minimally weak bilaterally.  The examiner wrote that all other findings were normal, implying that signs of meniscal irritation were absent.  Review of the record did not show loss of duty time from incapacitation other than the normal recovery after surgery.  

The VA Compensation and Pension (C&P) examination was performed on 16 February 2007, 3 months after separation.  The CI reported progressive knee pain without antecedent trauma.  Incapacitation was not documented.  The ROM was painful and limited bilaterally as charted below.  Mild anterior/posterior instability was noted on the right knee and testing for meniscal irritation was positive bilaterally.  Two weeks later, on 1 March 2007, the CI was seen in primary care in the VA.  He was able to walk and get on and off the examination table without limitations or pain.  Flexion was reduced to 120 degrees bilaterally.  Pain was in excess of the findings.  The knees were stable.  Meniscal signs were not recorded.  The goniometric ROM evaluations in evidence which the Board weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Knee ROM
(Degrees)	MEB ~5 Mo. Pre-Sep	VA C&P ~3 Mo. Post-Sep	
	Left	Right	Left	Right	
Flexion (140 Normal)	120	110	110	100	
Extension (0 Normal)	0	0	0	0	
Comment	Crepitus	Crepitus	Painful Motion	Painful Motion ; Instability	
§4.71a Rating	10%	10%	10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee condition at 0%, coded 5009-5003 (a typo; 5099-5003, analogous to degenerative arthritis, would be the correct code).  The VA rated each knee separately.  The right knee was rated at 10% each for ligamentous instability, coded 5257 (other impairment of the knee), and patellar tendonitis, coded 5260 (limitation in flexion).  The left knee was rated at 10%, coded 5260 for a meniscal injury and patellar tendonitis.  The Board first considered if each knee was separately unfitting.  Both had surgery and both had an abnormal examination at separation.  The CI was found to fail retention standards and to be unfit for bilateral knee pain.  The evidence supports finding that each knee was separately unfitting.  

The Board then considered the findings.  The VA examiner found that the right knee was not stable.  However, multiple examinations in orthopedics prior to separation, including one 2 days prior, showed a stable knee as did a VA examination 2 weeks after the VA C&P examination.  A finding of an unstable knee (right or left) is not supported by the preponderance of evidence.  The VA C&P examiner also found signs of meniscal irritation.  Again, this was not documented on other examinations including arthroscopic examination of each knee.  The preponderance of evidence does not support a finding of meniscal disease in either knee at separation.  Motion was limited in both knees, but not to a compensable degree in either in any examination.  Painful motion was documented in the VA C&P examination.  This supports the minimal compensable rating IAW VASRD §4.59 (painful motion).  A 10% rating for the bilateral knee condition in the absence of incapacitation is supported code 5003.  The code 5260, limitation in flexion, supports a 10% rating for each knee using VASRD §4.59.  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 each knee, coded 5260.  

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.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the bilateral knee pain condition, the Board unanimously recommends a disability rating of 10% for each knee, coded 5260 IAW VASRD §4.71a.  There were no other conditions within the Board’s scope of review for consideration.  

RECOMMENDATION:  The Board 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	
Right Knee Pain	5260	10%	
Left Knee Pain	5260	10%	
COMBINED (w/BLF)	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140721, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

	

	
MEMORANDUM FOR Commander, US Army Physical Disability Agency
(AHRC-00), 2900 Crystal Drive, Suite 300, Arlington, VA 22202-3557

SUBJECT: Department of Defense Physical Disability Board of Review Recommendation
for (PD201403885)

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