RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX.	CASE:  PD-2015-00606
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20030527

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was a National Guard O2, Field Artillery Officer, medically separated for “chronic pain, right ankle and left knee” with a disability rating of 0%.  

CI CONTENTION:  The CI noted his ankle should have been rated 40% to 50%.  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 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 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 - 20030403	VARD - 20030618	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Pain, Right Ankle and Left Knee	5099-5003	0%	Right Ankle Instability	5299-5271	10%	STR	
			Arthritis, Left Knee	5003	NSC		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Unbundled Right Ankle and Left Knee Pain.  The PEB combined the right ankle and left knee pain under a single service disability rating, coded analogously to 5003 and rated 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy.  This approach by the PEB not uncommonly reflected its judgment that the constellation of conditions was unfitting, and 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 the VASRD 5003 rating requirements, and that this approach does not 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 the condition would not cause the member to be referred into the DES or be found unfit because of physical disability.  When the panel recommends separate fitness recommendations in this circumstance, its recommendations may not produce a lower combined rating than that of the PEB.  The evidence for the right ankle and left knee conditions are presented separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  

Right Ankle Pain.  According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s right ankle pain began in 2001 without specific injury or trauma while performing his military training.  Radiographic studies showed an old ankle fracture.  

The 14 March 2003 MEB NARSUM examination, 2 months prior to separation, noted complaints of knee pain when taking a couple of steps and complained of swelling, numbness and tingling down to his right leg when applying pressure to his lower leg.  The CI noted physical therapy (PT) did not provide any relief.  The physical examination showed “5 to 50 degrees (45 normal) with pain on range of motion of the ankle.”  The CI also had a positive anterior drawer test (test for instability).  The examiner further noted that an MRI was suggested to determine whether surgical intervention was needed.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the right ankle 0%, analogously coded 5099-5003 (degenerative arthritis), citing the USAPDA pain policy.  The VA rated the right ankle 10% analogously coded 5299-5271 (limited motion of ankle), based on the STR, citing painful motion.  The panel concurred that a 10% rating for functional loss (§4.40, §4.45) due to instability and pain was supported by the evidence of record.  The panel also considered alternative VASRD ankle and analogous codes, but all were less applicable and not advantageous to rating.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the right ankle condition, coded 5099-5003.  

Left Knee Pain.  According to the STR and the MEB NARSUM, the CI’s left knee pain began in 2001 without specific injury or trauma while performing his military training.  Radiographic studies showed early arthritis.  The 19 March 2003 MEB NARSUM examination, 2 months prior to separation, noted complaints of pain with squatting and kneeling.  The physical examination showed a range of motion (ROM) of 0 to 100 degrees (0-140 normal) with pain, tenderness and positive for effusion or swelling of the knee.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the left knee pain 0%, analogously coded 5099-5003 (degenerative arthritis), citing the USAPDA pain policy.  The VA rated the left knee pain as not service connected, coded 5003 (degenerative arthritis), based on the STR, citing that the condition existed at the time the CI was called to active duty.  There was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  The examinations proximate to separation did not demonstrate the presence of ligamentous instability or laxity (5257), and there was no history of dislocated meniscus or loose body causing frequent locking with recurrent effusions (5258) or history of surgery to remove a meniscus (5259) to support a rating under those respective codes.  There was no fracture, nonunion, 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).  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 10% for the left knee pain, coded 5099-5003.  

BOARD FINDINGS:  In the matter of the right ankle condition, the panel unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  In the matter of the left knee condition, the panel unanimously recommends a disability rating of 10%, coded 5099-5003 IAW VASRD §4.71a.  There were no other conditions within the panel’s scope of review for consideration.  The panel 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	
Right Ankle Pain	5099-5003	10%	
Left Knee Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150604, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170006582, XXXXXXXXXXXXXXXXXX.

Dear XXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found that your disability rating should be modified but not to the degree that would justify changing your separation for disability with severance pay to a permanent retirement with disability.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed) and I accept its recommendation.  This will not result in any change to your separation document or the amount of severance pay.  A copy of this decision will be filed with your Physical Evaluation Board records.  I regret that the facts of the case did not provide you with the outcome you may have desired.
  
	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,