RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00209
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040620

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

CI CONTENTION:  Believes a medical retirement is justified for knee and lower back 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 - 20040419	VARD - 20040826	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain	5099-5003	0%	Bilateral Knee Strain	5257	10%	20040504	
Chronic Low Back Pain	Not Unfitting	Lumbar Strain	5237	10%		
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  20%	

ANALYSIS SUMMARY:

Bilateral Knees.  The PEB combined the right and left knee conditions under a single service disability rating, analogously coded 5099-5003 and rated 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy and AR 635-40 B24.f.  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 are presented, with attendant recommendations regarding separate unfitness, and separate rating if indicated.

According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI’s left and right knee conditions initially began in 2001 without specific injury or trauma.  In April 2003, he began to experience pain in both knees during rigorous exercise.  The CI underwent physical therapy (PT) and chiropractic treatment but the pain persisted.  Radiographic studies revealed normal right and left knees.  At a 12 February 2004 PT examination, 4 months prior to separation, range of motion (ROM) measurements documented left knee flexion to 120 degrees (normal 140) and extension to 0 degrees (normal)  Right knee ROM was flexion to 115 degrees and extension to 0 degrees; painful motion was not addressed for either knee.

The 1 April 2004 MEB NARSUM examination, 4 months prior to separation, noted complaints of aching in both knees with the right worse than the left with marching.  Physical examination showed tenderness bilaterally.  Both knees appeared stable with no swelling or redness.  Right knee flexion was to 95 degrees and left knee flexion was to 115 degrees; bilateral knee extension measurements and painful motion were not addressed.  On 23 April 2004 both knees were profiled L3 for “chronic bilateral knee pain.”

At the 4 May 2004 VA Compensation and Pension (C&P) evaluation, 1 month before separation, the CI reported bilateral knee pain and swelling.  Physical examination of both knees showed flexion to 140 degrees and extension to 0 degrees with painful motion bilaterally.  Repetition did not cause fatigue, weakness, lack of endurance or incoordination.

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knees 0%, analogously coded 5099-5003 (degenerative arthritis), citing the USAPDA pain policy.  The VA rated the bilateral knees 10%, coded 5257 (instability or laxity), based on the C&P examination 1 month before separation, citing ROM limited by pain.  

The panel concluded there was not a preponderance of evidence in the STR to overcome the presumption that the bundled knee condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting left and right knee conditions at the time of separation.  Members agreed there was no limitation of flexion or extension that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  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 sufficient STR and VA evidence of painful motion with functional loss supporting a 10% rating for each knee (based on §4.59, §4.40 and §4.45).  A bilateral 10% rating under the provisions of 5003 was considered, but it was concluded that the MEB NARSUM and C&P examinations provided satisfactory evidence for painful motion of both knees; thus, separate joint ratings are indicated IAW §4.71a.  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 each knee, analogously coded 5099-5003.

Contended PEB Condition:  Back Pain.  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 was permanently profiled L3 as “chronic low back pain,” implicated in the commander’s statement as limiting the CI’s worldwide assignments and ability to perform any portion of the Army physical fitness test, and was judged by the MEB to fail retention standards.  Members agreed that the preponderance of evidence indicated the back condition, in addition to the bilateral knee conditions, caused the member to be referred into the DES and is unfitting because of physical disability.  

The panel next considered its rating recommendation for the unfitting back condition at the time of separation.  Thoracolumbar range of motion (ROM) measurements performed by PT on 12 February 2004, 4 months prior to separation, showed flexion to 80 degrees (normal 90); painful motion was not addressed.  The 1 April 2004 MEB NARSUM noted complaints of lower back pain with rigorous exercise.  Physical examination showed tenderness and a palpable popping sound and that the CI had “normal extension but lacked moderate trunk flexion and lateral bending.”  Measurements were not provided and painful motion was not addressed.

At the 4 May 2004 C&P evaluation, 1 month before separation, the CI reported constant lower back pain traveling down his right leg.  Physical examination showed a normal gait and no evidence of radiculopathy or muscle spasm.  ROM was flexion to 90 degrees and combined ROM was 240 degrees (normal) with painful motion.

Although there was insufficient limitation of motion to support a 10% rating, panel members agreed a 10% rating was justified for the presence of painful motion based on the C&P examination with the highest probative value and closest proximity to separation.  There was no muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, thus the next higher 20% rating was not justified on this basis.  After due deliberation, the panel agreed that the preponderance of the evidence with regard to the functional impairment of back condition favors its recommendation as an additionally fitting condition for disability rating.  It is appropriately coded 5237 and meets the VASRD §4.71a criteria for a 10% rating.

BOARD FINDINGS:  In the matter of the bilateral knee condition, the panel unanimously recommends a disability rating of 10% for the right knee and a 10% rating for the left knee conditions, analogously coded 5099-5003 IAW VASRD §4.71a.  In the matter of the contended back condition, the panel unanimously agrees that it was unfitting and recommends a disability rating of 10%, coded 5237 IAW VASRD §4.71a.  There are no other conditions within the panel’s scope of review for consideration.  

The panel recommends the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement, effective as of the date of the prior medical separation:

CONDITION	VASRD CODE	PERMANENT RATING	
Chronic Left Knee Pain	5099-5003	10%	
Chronic Right Knee Pain	5099-5003	10%	
Chronic Low Back Pain	5237	10%	
COMBINED	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160414, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

AR20170014683, XXXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXX:

	I accept the recommendation of the Department of Defense Physical Disability Board of Review (DoD PDBR) to re-characterize your separation as a disability retirement with the combined disability rating of 30% effective the date of your medical separation for disability with severance pay.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.

	The re-characterization of your separation as a disability retirement will result in an adjustment to your pay providing retirement pay from the date of your original medical separation minus the amount of severance pay you were previously paid at separation.
 
	The accepted DoD PDBR recommendation has been forwarded to the Army Physical Disability Agency for required correction of records and then to the U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made and will provide information on your retirement benefits.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), XXXXXXXXXXXXXXXXXXX.

	A copy of this decision has also been provided to the Department of Veterans Affairs [

Sincerely,					      
Enclosure