RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-01202
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20060123

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 “bilateral knee pain” with a disability rating of 10%.

CI CONTENTION:  The CI requests that all conditions be considered.  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 review of disability ratings assigned 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 or non-compensable.  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 - 20051213	VARD - 20060915	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain with Radiographs…	5099-5003	10%	PFS…Right Knee	5099-5003	10%	20060601	
			PFW…Left Knee	5099-5003	10%		
Tinnitus	Not Unfitting	Tinnitus	6260	10%	20060531	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single service disability rating, coded analogously to 5003 and rated together at 10%.  The 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 Board 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 Board’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 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 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’s left and right knee condition began while deployed in 2003 with no specific injury.  There was no surgical indication, and conservative treatment did not result in improvement sufficient to allow unrestricted duty. The MEB forwarded “bilateral knee pain” for PEB adjudication.

The permanent profile dated 26 August 2005 identified “bilateral knee pain” as being the only duty limiting condition.  The MEB examination (recorded on DD Forms 2807 and 2808) dated 19 September 2005 (4 months prior to separation) reported crepitus (a grinding sound or sensation) and tenderness of the bilateral knees, with no swelling or fluid buildup.  The commander’s statement dated 30 September 2005 referred to “very painful” bilateral knee pain, and did not identify one knee condition as more severe than the other.  At the time of the physical therapy clinic MEB ROM appointment on 6 October 2005, the examiner recorded ROM for the right knee as 0-80 degrees and the left knee as 0-90; normal is 0-140 degrees.  Radiographic studies on 8 May 2006, 3 months prior to separation, revealed mild degenerative changes in the knees.

At the 1 June 2006 VA Compensation and Pension (C&P) evaluation, performed 4 months after separation, the CI reported bilateral knee pain rated 5/10 in severity with flares to 7-8/10 with activity.  The CI indicated the knee pain prevented driving for long periods of time.  He indicated he was able to perform activities of daily living without difficulty, and that the knees presented no significant impact on activity. The CI denied using any assistive device, and denied dislocation or subluxation.  Physical examination showed a normal gait and reflexes, with no limitation observed for walking or standing.  There was mild crepitus to the knees.  ROM was recorded for both the right and left knee as 0-100 degrees, with pain noted at the limit of motion.  There was mild additional loss of motion noted with eight repetitions of motion.  Testing for ligamentous instability and meniscal damage was negative.  

Directing attention to its recommendations, the Board first considered whether the individual knee conditions met the Board’s threshold for separate rating as elaborated above, and Board members agreed, the evidence supported that each knee was separately unfitting.  The Board next proceeded with its rating recommendation based on the above evidence.  

The PEB rated the bilateral knee condition 10%, coded 5099-5003 (analogous to degenerative arthritis), citing radiographic evidence and painful motion.  The VA rated the right and left knees separately, each at 10% and coded 5099-5003, citing degenerative changes with limited motion.  Exams proximate to separation documented well supported diagnoses for each knee with objective evidence of functional loss for each knee, and painful motion.  Therefore evidence of painful motion and functional loss justified a 10% rating (based on §4.59 and §4.40) for each knee condition.  There was no limitation of motion which attained a higher rating under the diagnostic codes for limitation of flexion or extension (5260, 5261) for either knee.  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 the respective codes.  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).  No additional functional limitation was evidenced by the examinations.  There was no path to individually rating either knee separately at greater than 10%.  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 each knee condition, coded 5099-5003  

Contended PEB Condition.  The Board’s main charge is to assess the fairness of the PEB’s determination that the Tinnitus condition was not unfitting.  The tinnitus condition was not profiled or implicated in the commander’s statement or judged to fail retention standards.  There was no performance-based evidence from the record that the condition significantly interfered with satisfactory duty performance at separation.  After due deliberation, the Board concluded that there was insufficient cause to recommend a change in the PEB fitness determination for the contended condition and so no additional disability rating is recommended.  

BOARD FINDINGS:  In the matter of the bilateral knee pain and IAW VASRD §4.71a, the Board recommends no change in the PEB adjudication.  In the matter of the bilateral knee pain, the Board recommends a disability rating of 10% for each knee, coded 5099-5003 IAW VASRD §4.71a.  
In the matter of the contended tinnitus, the Board 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	
Left Knee Pain	5099-5003	10%	
Right Knee Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150612, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170011648, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	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,	
Enclosure