RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2015-00060
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20091210

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Ammunition Specialist, medically separated for “chronic right knee pain” and “chronic left knee pain,” rated 10% and 10%, respectively, with a combined disability rating of 20%.  

CI CONTENTION:  “I was rated at 30% for the same condition by the VA.”  The applicant’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 upon a 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 - 20090901	VARD - 20091222	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Right Knee Pain	5099-5003	10%	Right Knee Strain	5299-5019	10%	20091007	
			Right Knee Instability	5257	10%		
Chronic Left Knee Pain	5099-5003	10%	Left Knee Strain	5299-5019	10%		
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Chronic Right Knee Pain and Chronic Left Knee Pain.  According to service treatment records and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral knee condition began in about 2 years before the MEB without specific trauma, but with increase on deployment.  She had pain with intermittent swelling that did not resolve with conservative therapy.  Radiographs documented normal X-rays with MRIs showing a partially (<20%) torn right ACL (anterior cruciate ligament) and some unclear indication of a “tiny tear” of the right meniscal.  The left knee showed non-definitive abnormalities.  There was no surgical indication for either knee.  Despite treatment, the right and left knee conditions could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for a MEB.  The MEB forwarded “patellofemoral syndrome of bilateral knees” and “patellar tendonitis of bilateral knees.”  

At the MEB examination (recorded on DD Form 2807 and 2808) and the NARSUM dated 20 July 2009, 4 months prior to separation, the CI reported bilateral knee pain (right greater than left), intermittent swelling and giving out.  Physical examination was for both knees and showed mild effusions above the kneecaps.  Chopat braces were being used, and painful and limited knee motion as charted below in the examination summary.  

At the VA Compensation and Pension (C&P) examination in October 2009, performed 2 months before separation, the CI reported weakness, swelling, redness, giving way, lack of endurance, fatigability, tenderness and pain of both knees.  There were frequent flare-ups with pain shooting both up and down the leg.  Physical examination is summarized in the chart below, and plain X-rays were negative.  

The range of motion (ROM) examinations in evidence which the Board weighed in arriving at its rating recommendation(s), with documentation of additional ratable criteria, are summarized in the chart below.  

Knee ROM
(Degrees)	MEB ~4 Mo. Pre-Sep	VA C&P ~2 Mo. Pre-Sep	
	Right	Left	Right	Left	
Flexion (140 Normal)	120	130	130	140	
Extension (0 Normal)	0	0	0	0	
Comment	Pain on motion; + patellar grind; tenderness; negative instability and meniscal testing	Pain on repetition; tender; crepitus; slight instability; slight abnormal meniscal tests	Pain on repetition; tender; crepitus; no instability 	
§4.71a Rating	10%	10%	10% + 10%	10%	

The Board directed attention to its rating recommendation based on the above evidence.  The PEB found each knee to be unfitting and assigned each knee a 10% rating under an analogous 5003 code (arthritis, degenerative [hypertrophic or osteoarthritis[), citing crepitus, tenderness, limited motion with pain, and negative instability and meniscal testing.  The VA also assigned a 10% rating for each knee using an analogous 5019 code (bursitis--which uses 5003 criteria) plus an additional 10% rating for the right knee using code 5257 (knee, other impairment of: recurrent subluxation or lateral instability), based on the VA C&P examination 2 months before separation, citing painful motion of each knee and slight instability of the right knee.  

Based on all examinations proximate to separation, there was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261) for either knee.  There was no fracture, non-union, or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) for each knee.  

The Board next deliberated if there was sufficient evidence for dual rating of either knee for instability.  No examinations documented left knee instability, and therefore no additional rating is recommended for the left knee.  However, the pre-separation VA examination demonstrated right knee ligamentous instability (5257) at the slight severity level with symptoms of giving way noted on all exams.  The Board considered the diagnostic imaging evidence of ligamentous injury (partial tear) as well as that exams in the record in the year prior to separation examined both knees together with bilateral findings indicating no instability, while the pre-separation VA examination specified instability testing of each knee separately (with slight instability of the right knee only).  The Board majority adjudged that the VA pre-separation examination had the highest probative value for rating at separation, and that there was sufficient evidence to support an additional 10% rating under the 5257 code for the right knee only.  

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 the right knee condition, coded 5099-5003; additionally, the Board majority also recommends a disability rating of 10% coded 5257.  

BOARD FINDINGS:  In the matter of the right knee condition, the Board unanimously recommends a disability rating of 10%, coded 5099-5003; and, by a majority vote, a disability rating of 10%, coded 5257; both IAW VASRD §4.71a.  In the matter of the left knee condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  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; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date prior to medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Right Knee Pain	5099-5003	10%	
	5257	10%	
Chronic Left Knee Pain	5099-5003	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150121, 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 XXXXXXXXXXXXXXXXXX, AR20160013337 (PD201500060)

1.  Under the authority of Title 10, United States Code, section 1554(a), I approve the enclosed recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) pertaining to the individual named in the subject line above to re-characterize the individual’s separation as a permanent disability retirement with the combined disability rating of 30% effective the date of the individual’s original medical separation for disability with severance pay.  

2.  I direct that all the Department of the Army records of the individual concerned be corrected accordingly no later than 120 days the date of this memorandum:

	a.  Providing a correction to the individual’s separation document showing that the individual was separated by reason of permanent disability retirement effective the date of the original medical separation for disability with severance pay.

	b.  Providing orders showing that the individual was retired with permanent disability effective the date of the original medical separation for disability with severance pay.

	c.  Adjusting pay and allowances accordingly.  Pay and allowance adjustment will account for recoupment of severance pay,] and payment of permanent retired pay at 30% effective the date of the original medical separation for disability with severance pay.

	d.  Affording the individual the opportunity to elect Survivor Benefit Plan (SBP) and medical TRICARE retiree options.

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:

			       
						      					
Enclosure
					
CF: 
(  ) DoD PDBR
(  ) DVA