RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00170
BRANCH OF SERVICE:  Army 	SEPARATION DATE:  20051021

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

CI CONTENTION:  “Due to my VA VASRD Service-Connected Disability Rating of 70% effective October 22, 2005, the day of my separation.” 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 - 20050919	VARD - 20060320	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	0%	PFS…Left Knee	5260	10%	20060215	
			PFS…Right Knee	5260	10%	20060215	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  70%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI reported that the bilateral knee condition began in 2001 while in Initial Entry Training (IET) without specific injury.  The first record found in evidence was for bilateral shin splints and dated 19 September 2004.  The CI was treated with medications and duty restrictions.  The record then fell silent until he was seen on 6 April 2005 for right knee pain and bilateral shin splints since running a few days previously.  The 71 inch CI was noted to weigh 237 pounds, an increase of 37 pounds since accession.  The examinations were noted to be normal.  He was referred to physical therapy without benefit.  It was noted in family practice on 20 April 2005 that he was running 5-6 miles twice a day.  He had tenderness about the right kneecap (patella), but a normal gait.  The shins were also tender.  He was thought to have an overuse injury and activity limitations prescribed.  One month later, his pain persisted.  He reported that he had continued to run.  The range of motion (ROM) of the knee was full and pain free.  Normal ROM was also noted in physical therapy on 21 June 2005.  X-rays showed no evidence of degenerative joint disease.  MRIs on 1 July 2005 were normal bilaterally.  The profile issued 1 August 2005 noted bilateral chondromalacia (degeneration of the cartilage lining of the kneecap) and was signed by the same orthopedist who prepared the NARSUM (below).  The MEB NARSUM, 25 August 2005, was accomplished by an orthopedic surgeon.  It noted that the pain began in basic training.  He had not benefited from medications, duty limitations, or physical therapy.  On examination, extension was normal and flexion limited to 125 degrees (140 is normal) bilaterally.  The knees were stable and signs of meniscal irritation absent.  Compression of the patellae was positive.  It was noted that the MRIs showed damage to the articular surface of the patellae bilaterally.  It is not clear from the record if this was the reading by the orthopedist who prepared the NARSUM or an error.  The official reading from radiology was that the knees were normal, as cited above.  The panel did observe that the NARSUM did not list chondromalacia as a diagnosis and only discussed bilateral knee pain.  He was not thought likely to improve with or without surgery.  

At the Compensation and Pension (C&P) evaluation performed on 15 February 2006, 4 months after separation, the CI reported progressive worsening bilateral knee pain since onset in 2001.  The CI noted that both knees have similar symptoms but the right knee was worse than the left knee.  Physical examination showed some limitation of motion with additional limitation of motion with repetition due to lack of endurance and fatigue.  No specific examination of the knees was in evidence other than the ROM measurements.  It was noted that under extremities, all were noted to be normal.  Extension was normal bilaterally.  Flexion was limited by pain with the right measuring 113, 111, and 104.  The left was 122,118, 123.  X-rays were unremarkable.  Incapacitation from the knees was not recorded in the records in evidence proximate to separation.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB combined the right and left knee pain conditions as a single unfitting condition coded analogously as 5099-5003 (degenerative arthritis) rated 0%. 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.  Both knees were profiled and found medically unacceptable by the MEB.  The commander’s statement was non-specific.  The panel determined that that each knee was reasonably justified as separately unfitting.  The VA rated the knees separately, rated 10% each, coded 5260 (leg, limitation of flexion of), stating that the CI did “not currently meet the criteria for a 10% rating based on loss of range of motion (for right or left knee conditions), however consideration is given to additional function loss based on chronic pain, fatigability, tendonitis, mild limitation of motion and pain that is aggravated by any increased activity.”  There was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  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).  However, there was evidence of painful motion with functional loss supporting a 10% rating (based on §4.59, §4.40 and §4.45) using the code 5003 for the bilateral knee condition.  The panel also considered if 5003 could be used to support a 10% rating for each knee.  For this, there must be radiographic evidence of arthritis, limited motion (but not to a compensable degree under 5260 or 5261), and an objective confirmation of the limitation such as painful motion which was present in this case.  The panel considered if radiographic changes were present.  Both X-rays were normal.  The MRI was read as normal by the radiologist, but as showing articular damage by the orthopedist.  The latter issued a profile for chondromalacia, but did not mention this in the NARSUM and did not list this as the MEB diagnosis (although this orthopedist was on the MEB).  The panel majority determined that the preponderance of evidence did not support the presence of X-ray evidence of arthritis at separation.  In addition, the probative value of the orthopedic review of the MRIs, the single report which does support arthritic like changes, is compromised as the orthopedist did not list a diagnosis on either the NARSUM or the MEB Form 3947.  On both, bilateral knee pain, a symptom, was listed as the medically unacceptable condition.  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 bilateral knee condition, coded 5003, for a combined disability rating of 10%.  

BOARD FINDINGS:  In the matter of the bilateral knee pain condition, the panel majority recommends a disability rating of 10% for the bilateral knee pain condition, coded 5003 IAW VASRD §4.71a.  The single voter for dissent recommended that each knee be separately rated at 10%, but did not elect to submit a minority opinion.  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	
Bilateral Knee Pain	5003	10%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160330, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014095, 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