RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	     CASE:  PD-2015-00470
BRANCH OF SERVICE:  Army                                                                  SEPARATION DATE:  20051006 

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E3, Infantryman, medically separated for “bilateral knee pain…” with a disability rating of 10%.

CI CONTENTION:  The CI contends for his unfitting bilateral knees and conditions not identified by either the Medical Evaluation Board (MEB) or Physical Evaluation Board (PEB).  The complete submission is at Exhibit A.  

SCOPE OF REVIEW:  The panel’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 panel’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 panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The panel’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 panel 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 panel 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 - 20050829	VARD - 20060418	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain…	5099-5003	10%	Chronic Ligamentous Strain With Instability, Right Knee	5257	20%	20060111	
			Chronic Ligamentous Strain, Left Knee	5099-5024	10%	20060111	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB combined the right and left knees for a single service disability rating of 10% under code 5099-5003 (analogous to degenerative arthritis), citing criteria of the US Army Physical Disability (USAPDA) pain policy.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and that there was no need for separate fitness adjudications.  The panel also noted that “bundling,” the combining of two or more major joints, may be permissible under VASRD criteria of 5003, and that this approach does not necessarily compromise the VASRD §4.7 directive to choose the higher of two valid ratings.  The panel’s initial charge in this case was therefore directed at determining if 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 panel considers each bundled condition to be reasonably justified as separately unfitting unless a preponderance of evidence indicates that it alone would not have caused the member to be referred into the DES or be found unfit because of physical disability.  

According to the service treatment record (STR) and the MEB narrative summary (NARSUM), the CI initially injured the right knee during a parachute landing in August 2004 (14 months before separation).  Magnetic resonance imaging (MRI) soon afterwards demonstrated a bone contusion and stress fractures (medial and lateral tibial plateaus) without ligamentous or meniscal pathology.  There was no subsequent injury, and over time the CI developed pain in his left knee that was thought to be from the joint stress of favoring the injured knee.  Repeat MRIs demonstrated healing of the contusion and stress fractures and corroborated the initial finding of otherwise normal joint structures.  Serial X-rays of the left knee were normal.  Most STR entries focused on the left knee, but some addressed bilateral knee pain.  There were multiple STR clinical entries that documented normal or minimally limited bilateral knee range of motion (ROM), both grossly observed and measured; and, there were no entries that indicated significantly limited ROM.  There was documentation that the CI denied subjective complaints of instability or locking; and, there were multiple examinations that documented stability to stress testing in all planes (included very probative orthopedic evaluations).  There was ample STR evidence for the absence of effusion or signs of impingement (mechanical locking).  The above findings were also applicable to the left knee, and there were no STR entries contrary to any of these ratable features.  Surgery was not indicated.  

The 1 August 2005 NARSUM examination, 2 months before separation, documented “bilateral knee pain,” without differentiating right and left severity and without notation of subjective instability or locking.  Pain was rated 4-8/10 and exacerbated by “prolonged standing, walking, pivoting and walking over rough, uneven terrain.”  The physical examination (all findings bilateral) recorded the use of a cane (no comment regarding the gait itself), “full” ROM (painful motion not specified), detailed findings for 4-plane stability, no effusion, and no signs of meniscal impingement.  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.”

An 11 January 2006 VA Compensation and Pension (C&P) examination, 3 months after separation, documented persistent pain (unquantified, right greater than left), and “particularly in the right knee ... some feeling of instability on climbing stairs ....”  The physical examination (all findings bilateral) recorded a normal gait (no brace or assistive device), no effusion, no locking, and “moderate anterior/posterior instability on passive motion in the right knee.”  The latter finding was not further elaborated and there was no evidence of collateral ligament testing.  Measured ROM was flexion to 95 degrees (normal 140, 45 for minimum 10%) and “full” extension, not specifying painful motion.  There was an orthopedic consult dated the day after the above C&P examination that provided detailed findings for 4-plane stability of the right knee, and opined that there was no instability or other surgical indication.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB’s bilateral 10% rating using the criteria for 5003 rested on application of the USAPDA pain policy as noted above, but was compliant with the 10% criterion for involvement of “two or more major joints.”  The VA rating of 20% for the right knee under 5257 (knee, other impairment of; providing for rating of instability) cited “moderate” instability as opined by the C&P examiner; but, this finding was refuted by multiple other examiners as detailed above, was contrary to the MRI evidence, and was not corroborated by any other examiner.  Members thus agreed that no additional rating for instability was justified for either knee.  The VA’s 10% rating for the left knee under code 5099-5024 (analogous to tenosynovitis, defaulting to criteria of 5003) cited painful motion.  There was no minimum compensable ROM limitation for either knee, no evidence for persistent effusion or locking (20% via 5258), or fracture with non-union or malunion (5262) that would support 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 panel was thus left with deciding whether the knees were reasonably justified as separately unfitting as a basis for recommending a bilateral 10% or separate 10% ratings.  In this case, especially considering an argument that the left knee was not readily justified as separately unfitting (and only equivocally compensable), members agreed that it was fair to surmise that it was the combined impairment from both joints which rendered the CI unfit; therefore, a bilateral 10% rating under criteria of 5003 was appropriate.  

After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded that there was insufficient cause to recommend a change in the PEB adjudication of the bilateral knee condition.

PANEL FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the panel unanimously recommends no change in the PEB adjudication.  There were no other conditions within the panel’s scope of review for consideration.  

The panel, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150527, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAMR-RB						

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, AR20170004776 (PD-2015-00470)

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, I accept the Board’s recommendation and hereby deny the individual’s application. This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Enclosure

CF: 
(  ) DoD PDBR
(  ) DVA