RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02278
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051225

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

CI CONTENTION:  The CI contended his unfitting knee condition and other conditions to include his back, right foot and post-traumatic stress disorder (PTSD).  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 progression or complications of service-connected conditions after separation.  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 - 20051108	VARD - 20061006	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain 	5099-5003	10%	Patellofemoral Pain Syndrome, Bilateral Knees, Status Post Right Knee Arthroscopies	5014	10%	20060726	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  10%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  According to service treatment record and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s bilateral knee condition began in August 2002 after his first parachute jump landing while in the Army Airborne School.  The CI was not able to continue and did not complete the school due to his knee injury.  Radiographic (X-ray) studies done in October 2002 were normal.  Magnetic resonance imaging (MRI) done on 4 February 2004 showed the CI had a horizontal tear at the posterior horn of the medial meniscus.  Following the MRI arthroscopic surgery was performed on the right knee on 9 March 2004.  

Following the surgery the CI had pain after a re-injury and underwent a second right knee surgery on 5 October 2004 to debride a tear of the posterior horn of the medial meniscus.  Following his second surgery the CI had persistent symptoms to include pain, clicking and swelling while doing physical therapy.  A repeat MRI was done that showed a complex tear of the posterior horn of the medial meniscus.  After consultation the CI decided to have the third surgery to repair his right knee.  

On 22 February 2005 the CI underwent right knee arthroscopy and debridement of the torn posterior horn medial meniscus.  The CI reported that he began having pain in his left knee from favoring his right knee.  An MRI was done on his left knee on 9 May 2005 which showed a small oblique tear of the medial horn of the medial meniscus and a small tear of the medial portion of the anterior horn of the lateral meniscus.  On 21 June 2005 McMurray testing (to determine a meniscal tear) was positive both medially and laterally as was a patella femoral grinding test; and there was a full range of motion (ROM) of the left knee.  

During the 6 September 2006 MEB examination (recorded on DD Forms 2807-1 and 2808), 3 months prior to separation, the CI reported “knee surgery x 3,” “locking, giving out, etc.,” and arthritis of the knees.  The 6 September 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of continued pain in both knees and he was unable to perform the duties of his Military Occupational Specialty (MOS) in the field or in garrison.  Physical examination of the right knee noted crepitus, no edema, no muscle atrophy and no erythema, with tenderness to palpation over the anterior aspect of the right patella.  There were well-healed vertical and horizontal scars of the right knee.  Examination of the left knee was normal and showed no edema, erythema, atrophy, crepitus or tenderness.  The ROM for each knee was normal but both knees exhibited pain during ROM testing.  Both knees demonstrated 4+/5 muscle strength in the extremities secondary to pain.  The CI had a painful heel/toe walk and a slow cautious gait without a limp.  

At the 26 July 2006 VA Compensation and Pension evaluation, 7 months after separation, the CI reported pain in both knees, right greater than left.  Physical examination showed no weakness, stiffness, swelling, heat, redness, instability, giving way, lack of endurance or fatigability.   He was under no treatment, reported no flare-ups, and was not using assistive devices.  ROM testing for both knees was normal.  There was no pain during ROM testing and there was no weakness, no lack of endurance, no incoordination or fatigability with repetition.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the chronic bilateral knee pain condition 10%, analogously coded 5003 (arthritis, degenerative), citing the US Army Physical Disability Agency (USAPDA) pain policy.  The VA also rated the chronic bilateral knee pain condition 10%, coded 5014 (osteomalacia), citing no evidence of a current meniscal problem of either knee; the condition was evaluated as bilateral patellofemoral pain syndrome since it was a prior diagnosis; and a 10% evaluation was assigned even though no pain, weakness, lack of endurance or incoordination was found with repetitive testing; and the evaluation was assigned based on subjective complaints of pain and the chronic condition. 

Panel Approach to PEB Consolidated Rating.  The PEB combined the right and left knee conditions as a single, bilateral unfitting condition coded analogously as 5099-5003 and rated 10% with application of the USAPDA pain policy.  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.  The evidence for the right and left knee conditions was presented above.  In this case, both knees were considered to fail retention standards, both were implicated by the NARSUM and in the commander’s statement, and both were profiled.  Panel members agreed that each knee condition was separately unfitting and a separate rating for each knee condition was warranted.

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) using code 5099-5003 for each knee.  However, because of the persistence of pain after meniscal surgery of the right knee, it warrants a 10% rating under the 5259 code (cartilage, semilunar, removal of symptomatic) more precisely than the use of the analogous 5099-5003 code.  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 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).  Therefore, there was no VASRD §4.71a route to a rating higher than the 10% under any applicable code.

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 knee pain condition, coded 5259 and a disability rating of 10% for the left knee pain condition, coded 5099-5003.  

BOARD FINDINGS:  In the matter of the chronic bilateral knee pain condition, the panel unanimously recommends a disability rating for the right knee of 10%, coded 5259 IAW VASRD §4.71a and a disability rating for the left knee 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	
Chronic Right Knee Pain	5259	10%	
Chronic Left Knee Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150617, w/attachments
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170012170, 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 and to the counsel you listed on your application, XXXXXXXXXXXXXXXXXXX.

Sincerely,	
Enclosure