RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02158
BRANCH OF SERVICE:  Air Force	SEPARATION DATE:  20050927

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Traffic Management Journeyman, medically separated for “bilateral knee pain” with a disability rating of 10%.

CI CONTENTION:  “Review all conditions.”  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 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 - 20050420	VARD - 20080910	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	10%	Right Knee Condition	5299-5260	NSC*	20080715	
			Left Knee Condition	5299-5260	NSC	20080715	
Tobacco Habituation	Not Unfitting	No VA Placement	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  NA	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB combined the left and right knee pain diagnoses as a single unfitting condition under a single code and rating.  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.  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 the service treatment record (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s left knee pain began in the July/August 2003 timeframe.  The CI denied any specific injury or trauma.  Conservative treatment was rendered by primary care, orthopedics and physical therapy; surgery was not indicated.  Diagnostic studies were essentially normal.  STR documentation focused primarily on chronic left knee pain with normal gait, crepitus and/or patella grinding, normal strength, the absence of joint instability or impingement, occasional swelling and full range of motion (ROM).  The first right knee pain STR entry occurred during a telephone consult on 20 June 2005 with complaints of “new” bilateral knee pain with right knee locking; during the MEB process.  Subsequent STR entries showed bilateral crepitus and patella grinding without instability or meniscus impairment, and full bilateral ROM.  Pre-MEB STR evidence showed left knee pain and treatment with no indication of right knee pain or pathology.  

The 27 June 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of bilateral knee pain.  She was unable to climb ladders, bend or squat for extended period of time.  Physical examination revealed bilateral patellar grind left greater than right, and pes anserine bursa tenderness left greater than right.  Instability and meniscus impairment testing were negative.  ROM and painful motion were not addressed.  

An 18 July 2005 family health clinic examination, 2 months before separation, noted ongoing knee pain and the inability of the CI to tolerate anti-inflammatory drugs.  Physical examination revealed significant bilateral patellar grinding with crepitus but without instability.  Bilateral ROM was full; painful motion was not addressed.  

The 21 July 2005 commander’s performance statement, 2 months prior to separation, does not implicate a specific medical condition.  The commander stated the CI’s current profile keeps her from running, prolong standing, walking, or marching.  

There was no VA Compensation and Pension (C&P) examination performed within 12 months of separation for this panel to review.  The first C&P examination was performed on 15 July 2008 almost 3 years after separation.  Because of the remoteness of this examination, it offers little to no probative value.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee pain condition 10%, coded 5099-5003 (analogous to degenerative arthritis).  The VA did not service connect the right or left knee condition, coded 5299-5260 (analogous to leg, limitation of flexion), based on the VA C&P examination almost 3 years after separation, citing the physical examination was negative, absent pathology no diagnosis could be made.  

It must be noted that fitness determinations are subject to DoDI 1332.38 (E3.P3.3.3 - Adequate Performance Until Referral) which states: “If the evidence establishes that the Service member adequately performed his or her duties until the time the service member was referred for physical evaluation, the member may be considered fit for duty even though medical evidence indicates questionable physical ability to continue to perform duty.”  The panel agreed the right knee pain was diagnosed during the MEB process without prior indication of pathology (pain, limitation of motion or instability).  Therefore, the members agreed that at the time of the MEB referral, there was no evidence of inadequate performance of duty as a consequence of this right knee condition.  Based on the preponderance of evidence the panel finds only the left knee pain interfered with the CI’s military occupational specialty performance prior to MEB entry; and, therefore only the left knee is considered reasonably justified as separately unfitting.  

The panel agreed there was no limitation of motion which supported a rating under the diagnostic codes for limitation of flexion or extension (5260, 5261); however, the panel concluded that the totality of the STR provided sufficient evidence for painful motion of the left knee to support a 10% rating (based on §4.59, §4.40 and §4.45).  STR examinations did not demonstrate the presence 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, 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).  There was therefore no VASRD §4.71a route to a rating higher than 10% as adjudicated by the PEB.  

The panel determined there was no rating advantage to the CI to render a 10% rating already adjudicated by the PEB.  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 for the bilateral knee condition.

Contended PEB Conditions:  Tobacco Habituation.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended condition was not unfitting.  The contended condition does not constituting a physical disability, IAW DoDI 1332.38.  Therefore, the panel has no basis for recommending it as unfitting.  After due deliberation in consideration of the preponderance of the evidence, the panel concluded that there was insufficient cause to recommend a change in the PEB fitness determination the contended condition and so no additional disability rating is recommended.

BOARD FINDINGS:  In the matter of the bilateral knee pain condition, the panel unanimously recommends no change in the PEB adjudication.  In the matter of the contended tobacco habituation condition, the panel unanimously agrees that it cannot recommend it for additional disability rating.  There are no other conditions within the panel’s scope of review for consideration.  The panel, therefore, recommends that there be no modification or re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150804, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

SAF/MRB
1500 West Perimeter Road, Suite 3700
Joint Base Andrews, MD  20762

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

Reference your application submitted under the provisions of DoDI 6040.44 (Section 1554, 10 USC), PDBR Case Number PD-2015-02158.

After careful consideration of your application and treatment records, the Physical Disability Board of Review determined that the rating assigned at the time of final disposition of your disability evaluation system processing was appropriate.  The Board recommended no re-characterization or modification of your separation.

I have carefully reviewed the evidence of record and the recommendation of the Board.  I concur with that finding and their conclusion that re-characterization of your separation is not warranted.  I accept their recommendation that your application be denied.

Sincerely,

XXXXXXXXXXXXXXXXXXX
Director
Air Force Review Boards Agency

Attachment:
Record of Proceedings