RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02128
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20080207

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E7, Microwave Systems Operator-Maintainer, medically separated for “bilateral knee pain” with a disability rating of 10%.  

CI CONTENTION:  The CI contends for his unfitting bilateral knee pain condition as well as sleep apnea and groin pain.  The CI’s 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 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 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 determination 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(s) 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 - 20090325	VARD – N/A	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	No VA Examination in Evidence	
Obstructive Sleep Apnea	Not Unfitting		
Pain, Groin, after Vasectomy	Not Unfitting		
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  N/A	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB rated the bilateral knee pain condition as a single unfitting condition coded 5099-5003 (analogously to arthritis, degenerative) and rated 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 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.  

According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent left knee surgery in March 2006 for debridement, removal of small loose bodies, patellar chrondroplasty, and arthroscopic lateral release.  The CI underwent right knee surgery in July 2006 for extensive patellofemoral debridement, chrondroplasty removal, and debridement of osteochrondral lesion, medial facet patella, and lateral tendon release.  At the physical therapy evaluation on 21 May 2007, 9 months prior to separation, the CI endorsed complaints slowly progressing bilateral knee pain.  Physical examination showed the left knee with a mild-moderate effusion around the joint line, right knee with mild effusion, and scars consistent with surgical history.  Palpation of the left knee revealed moderate joint line tenderness and crepitation.  Range of motion (ROM) was limited in the left knee at flexion of 110 degrees (140 Normal) limited by pain, and right knee with full ROM.  The neuromuscular examination was normal.  Testing was negative for ACL instability.  There was positive marked pain with patellar grind bilaterally with abnormal antalgic gait, favoring the knees, left greater than right.  

The MEB NARSUM examination on 1 October 2007, 4 months prior to separation, noted complaints of bilateral knee pain.  Physical examination showed a left knee with mild to moderate effusion around the joint line, right with mild effusion, scars consistent with surgical history.  Palpation of the left knee revealed moderate joint line tenderness and crepitation.  ROM of the left knee was 110 degrees flexion limited by pain.  Right knee had full range of motion.  The neuromuscular examination was normal with positive patellar grind with marked pain.  There was no VA examination in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee pain condition 10%, analogously coded 5099-5003 (Arthritis, degenerative), citing removal of small loose bodies, patellar chondroplasty, arthroscopic lateral release in 8 March 2006 on the left debridement, removal of OSD lesion and lateral release on 12 July 2006 on the right.  This was an analogous rating for chondromalacia two major joints without ROM issues.  The panel first considered if the each knee, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  Both knees were profiled and limitations included no running, no unlimited walking, biking or swimming.  According to the commander’s statement dated 21 September 2007, the CI’s physical impairments did not prevent him from fulfilling the requirements of his MOS.  Panel members agreed that the evidence reasonably justified that the functional limitations of each knee contributed to the CI’s inability to perform his military duties and accordingly separate disability ratings are recommended.  There was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261).  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 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).  There was therefore no VASRD §4.71a route to a higher rating under any applicable code for either knee, and no grounds for additional rating based on the presence of instability.  The panel does not recommend disability rating for scars unless their presence imposes a direct functional limitation that renders the CI unfit.  The knee scar did not interfere with wear of military gear and was not painful at the MEB examination.  There was insufficient evidence of duty-limiting impairment from the knee scar, thus the panel concluded that the scar condition could not be recommended for additional disability rating.  After due deliberation, and considering all of the evidence, the panel recommends a disability rating of 10% for the right knee condition and 10% for the left knee condition, each coded 5099-5003.

Contended PEB Conditions:  Obstructive Sleep Apnea (OSA) and Groin Pain after Vasectomy.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  The OSA was profiled but the only requirement related to that diagnosis was that the CI must have a reliable source of electricity during sleep times.  The groin pain 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 any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the left knee condition, the panel unanimously recommends a disability rating of 10%, coded 5099-5003. IAW VASRD §4.59, §4.40 and §4.45.  In the matter of the right knee condition, the panel unanimously recommends a disability rating of 10%, coded 5099-5003. IAW VASRD §4.59, §4.40 and §4.45.  In the matter of the contended OSA and groin pain conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  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	
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 20150630, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170010113, 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