RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX	CASE:  PD-2015-02447
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20030204

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Abrams Tank System Maintainer, medically separated “chronic bilateral knee pain with effusions,” with a disability rating of 0%.

CI CONTENTION:  “Review all conditions.”  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 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 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 - 20030116	VARD - 20030825	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	Left Knee, Early Osteoarthritis	5003-5261	0%	20030710	
			Right Knee, Early Osteoarthritis	5003-5261	0%	20030710	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  0%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  The Board provides the following clarification regarding its approach to PEB consolidated ratings.  The PEB combined the right and left knees under a single service disability rating, coded analogously to 5003 (degenerative arthritis) and rated 0%, citing application of the US Army Physical Disability (USAPDA) pain policy.  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 Board 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 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 that it alone would not have caused the member to be referred into the DES or be found unfit because of physical disability.  

According to the service treatment records (STR) and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI developed bilateral knee pain during basic training after re-enlisting in September 2001.  He was diagnosed (X-ray and MRI) with osteoarthritis and developed associated effusions in both knees.  There was no STR evidence for significantly worse acuity of one knee more than the other.  There was no evidence of ligamental or meniscal pathology.  There were STR clinical entries documenting grossly normal bilateral range of motion (ROM), with painful motion suggested in one entry, and bilateral joint stability to stress testing.  Although there was evidence for effusions, there was documentation that there were no signs of impingement (locking).  There was no STR evidence contrary to any of these ratable findings.  Surgery was not indicated; conservative treatment did not result in sufficient improvement to allow unrestricted duty; and, the CI was referred for an MEB which in turn forwarded “bilateral knee effusion/early degenerative joint disease” to the PEB.

The NARSUM examination on 07 January 2003 (3 weeks before separation) documented persistent bilateral “slight amount of pain occasionally” without subjective locking or instability, and interfering with “push-ups, climbing, heavy lifting, kneeling, and squatting.”  The physical examination recorded bilateral tenderness and “moderate” effusions, stability to stress testing in all planes, and negative signs of impingement.  The NARSUM did not comment on ROM, although the MEB’s DD Form 2808 physical examination documented painful motion.  The commander’s performance statement was not probative to separate fitness implications of either knee, and the permanent L3 profile designated the MEB’s bilateral diagnosis.  

The VA Compensation and Pension (C&P) examination on 10 July 2003 (5 months after separation) documented bilateral knee pain “75% of the time” rated 6-8/10 exacerbated by “any twisting or pivoting, ascending stairs, driving, prolonged sitting more than 30 minutes, walking more than 5 minutes.”  The physical examination recorded the use of a cane, but no gait disturbance; and, specified the absence of tenderness, effusion, crepitus, or laxity to stress testing (all planes).  Measured ROM (bilateral) was flexion to 135 degrees (normal 140, 45 for minimum 10%) and extension to 5 degrees (unclear if minus extension or hyperextension; normal 0, minus 10 degrees for minimum 10%), without comment regarding painful motion.

The Board directed attention to its rating recommendation(s) based on the above evidence.  The PEB’s bilateral 0% rating under code 5003 rested on application of the USAPDA pain policy as above; but, a bilateral rating of 0% does not comport with VASRD §4.71a which confers a 10% rating under 5003 for the involvement of “2 or more major joints” without specifying a need for additional criteria.  The VA’s separate 0% ratings (premised on the C&P findings) were under code 5003-5261 (degenerative arthritis rated for limitation of extension) and cited failure to meet minimum compensable ROM limitation, without invoking VASRD §4.59 (painful motion) or §4.40 (functional loss).  There was no minimum compensable ROM limitation for either knee.  There was no evidence for locking (requisite to a 20% rating under code 5258 for persistent effusion and locking), for fracture with non-union or malunion (code 5262), or for joint instability (dual rating) that would achieve a rating higher than 10% for either knee; and, there was no evidence contrary to §4.71a criteria for a 5003-based bilateral rating of 10%.  The Board was thus left with deciding whether the knees were reasonably justified as separately unfitting as a basis for recommending a bilateral 10% or separate 10% ratings.   

In this case, there was no evidence that one joint caused more functional impairment than the other, and the overall functional impairment at separation was confined to more strenuous military activities (per the NARSUM).  Members agreed, given the clinical acuity and functional limitations described above, that it was reasonable to conclude that the performance limitations confined to either knee alone would not have rendered the CI incapable of continuing military service; and, that more likely it was the combined effect of the bilateral condition which rendered him unfit.  Members thus agreed that a bilateral 10% rating under criteria of 5003 was appropriate.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board recommends a 10% rating for the bilateral knee condition under code 5003.

BOARD FINDINGS:  In the matter of the bilateral knee condition and IAW VASRD §4.71a, the Board unanimously recommends a disability rating of 10%, coded 5003 IAW VASRD §4.71a.   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	
Early Degenerative Arthritis, Bilateral Knees	5022	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150912, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170004626, XXXXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

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