RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-00574
BRANCH OF SERVICE:  ARMY 	SEPARATION DATE:  20040731

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an National Guard E4, Cannon Crewmember, medically separated for “chronic bilateral knee and ankle pain, due to degenerative joint disease” with a disability rating of 20%.  

CI CONTENTION:  The CI made no specific contention.  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 - 20040604	VARD - 20050209	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee and Ankle Pain Due to Degenerative Joint Disease (DJD)	5003	20%	Degenerative Joint Disease with Arthritic Changes, Left Knee	5260-5010	10%	20050124	
			Degenerative Joint Disease with Arthritic Changes, Right Knee	5260-5010	10%	20050124	
			Degenerative Joint Disease Left Ankle with Residual of Old Trauma	5271-5010	10%	20050124	
			Traumatic Arthritis, Right Ankle	5270-5010	10%	20050124	
COMBINED RATING:  20%	COMBINED RATING OF ALL VA CONDITIONS:  40%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee and Ankle Pain Due to Degenerative Joint Disease.  The PEB combined the right and left knee conditions and the right and left ankle conditions under a single disability rating, coded 5003 (degenerative arthritis) and rated 20%.  This 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 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 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 adjudicated by the PEB.  

The panel noted that the Medical Evaluation Board (MEB) narrative summary (NARSUM) reported the 15 March 2002 ankle injury was of the right ankle leading to right knee symptoms, a confusion that appeared to be continued in the rheumatology consult.  However, the STR clearly indicated it was the CI’s left foot that was caught under a security gate while he was deployed in 2002, leading to immediate left ankle symptoms and within a couple weeks, left knee symptoms.  This distinction was an important factor during the panel’s fitness deliberations because the permanent profile and commander’s statement’s implicated the left ankle, despite the fact that proximate to separation, the right ankle was more symptomatic than the left.  The panel did not rely on the MEB NARSUM’s history of the multiple joint problems and instead reviewed the STR in detail and did consider all available medical and administrative information in making its fitness and ratings recommendations.  The evidence for the right and left knee conditions and the right and left ankle conditions is presented below with attendant recommendations regarding separate unfitness and separate rating if indicated.  

Right and Left Knees.  According to the service treatment record (STR) and the MEB NARSUM, the CI initially had problems with his right knee in 1994 while on Army Reserves duty.  An MRI showed some cartilage damage and he underwent arthroscopy for debridement.  He recovered and returned to full duty until activation in 2001.  After activation he did well until March 2002 when a left ankle injury caused pain and swelling in the left knee to develop as well.  Orthopedic evaluations in August to October 2002 noted bilateral knee effusions, alternating in severity at serial visits, and tenderness without evidence of instability.  Left knee MRI in September 2002 showed a medial meniscal tear but at the follow-up visit for MRI results the CI reported that his right knee was bothering him at that point much more than his left knee.  In September 2002 screening blood work for connective tissue disorders was negative, but the erythrocyte sedimentation rate (ESR) rate was elevated, indicating an inflammatory disorder of some type.  The CI was thought to have gouty arthritis and was started on medication for treatment of gout (Allopurinol).  He underwent arthroscopy of the more symptomatic right knee in 28 October 2002 with chondroplasty and meniscectomy.  Following the surgery the right knee pain did improve but over time the CI was noted to have recurrent joint pain with effusions of the bilateral knees and ankles.  At the 17 December 2002 orthopedic follow-up visit, the CI reported the right knee was better but was having trouble with the right ankle (see below).  A rheumatology consult was recommended.  

The 12 June 2003 civilian rheumatology consult, 14 months before separation, noted pain in knees and ankles, especially the right knee and right ankle.  The rheumatologist noted that the CI was using a cane to walk and “clearly is not able to move his right knee and ankle very well.”  There were effusions of both knees graded moderate to moderately large and worse on the right.  The right knee was warm.  There was reduced knee ROM and significant tenderness bilaterally.  There was bilateral ankle swelling and “some reduction” in ROM.  Neurological examination was normal including strength, sensation, and reflexes of all extremities.  Straight leg raise testing to elicit nerve tension signs was negative.  There were no skin changes or rashes.  Left knee X-rays showed degenerative changes.  Aspiration of knee fluid showed no crystals (found with gout) but did appear inflammatory.  The CI was started on a tapering course of oral steroids.  The impression was inflammatory arthritis, with secondary osteoarthritis. The rheumatology plan indicated “this gentleman likely does have an inflammatory arthritis.  The picture given his age, gender, and the occurrence mostly below the waist strongly suggests gout and I was surprised not to find any crystalline after 10 minute look…We will see him back in approximately three to four weeks to reevaluate this.  He clearly needs aggressive intervention at this time.  The real problem is deciding what the diagnosis is to direct that intervention.”  No further rheumatology notes are in record, before or after separation.  

The 6 November 2003 permanent profile, 9 months before separation, listed chronic right knee pain and effusion and left ankle pain.  The 4 February 2004, commander’s statement, 6 months before separation, implicated the right knee and left ankle as impairing the CI’s successful performance of the duties of his MOS or performing aerobic events for the physical fitness test.  

During the 14 January 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported arthritis and trouble with painful swollen joints.  He noted problems with his feet, ankles and knees.  The physical examination showed degenerative deformity and effusion of the knees, right greater than left.  There was tenderness to palpation and crepitus of both knees.  

The 23 January 2004 MEB NARSUM examination, 6 months before separation, noted complaints of chronic bilateral knee and ankle pain.  The physical examination showed the CI was ambulating with a crutch on the right side.  Findings of the DD Form 2808 examination summarized above were cited.  The NARSUM also cited the physical therapy consult on 5 December 2003.  Physical therapy noted the CI was “unable to bear more than 50% on knee.”  The examiner noted range of motion of extension lacking 3 degrees (0 normal) to 115 degrees flexion (140 normal) that was painful at end ranges.  There was no significant laxity or instability noted.  The patella was ballotable (effusion sign).  The CI did not tolerate testing for meniscal pathology (McMurray’s or Apley’s) due to pain.  It was unclear from the documentation whether these findings were of the right knee only or bilateral knees.  The CI was given crutches and compression wrap for the right knee.  Further work-up was recommended for inflammatory arthritis due to multiple joint involvement.  The NARSUM noted only that the rheumatologist did not think the CI had gout.  Bilateral knee X-rays 9 December 2003 showed bilateral effusions, greater on the right, with “tiny” patellar spurs and mild degenerative changes of the right femur.  A consult for orthopedic MEB specialty consult was placed, but there is no indication in the record that this evaluation was accomplished.  The NARSUM indicated the CI did not meet retention standards due to chronic bilateral knee pain according to AR 40-501 Chapter 3-14.c., osteoarthritis.  

At the 24 January 2005 Compensation and Pension (C&P) evaluation, 5 months after separation, the CI presented with pain in his right and left knees; his right knee pain generally greater than left.  The VA examiner noted that the CI was using a crutch due to an exacerbation of the right knee, with “obvious giving way” to his right leg.  He reported that at the examination the right knee and right ankle were more symptomatic but that at times the left knee and ankle could be just as badly affected.  At the time of the examination he was only taking medication occasionally as needed.  The CI reported exacerbations were somewhat related to activity level but he estimated they occurred approximately once or twice per month, limited his activity, and could require use of a crutch.  Physical examination of the right knee showed it to be swollen and warm with crepitus and very tender to palpation and stable to examination.  The ROM was 0 degrees of extension (normal 0) and 90 degrees of flexion (140 normal) with painful motion.  There was slight swelling to the left knee with no warmth.  The knee was slightly tender over the joint space and the knee was stable.  The ROM was 0 degrees of extension and 120 degrees of flexion with very mild pain on full flexion in all modalities.  There was no additional loss of ROM of either knee with repetition.  Bilateral knee X-rays showed degenerative arthritis.  

Left and Right Ankles.  According to the service treatment record (STR) and the MEB NARSUM, the CI injured his left ankle in March 2002 when his foot got caught under a security gate while on guard duty.  He experienced pain and swelling in the left ankle.  Left ankle X-rays 21 March 2002 showed soft tissue swelling and evidence of old trauma to the medial malleolus and ligaments.  The CI was treated with partial weight bearing, an ankle air cast, and physical therapy with improvement.   At the 8 October 2002 orthopedic follow-up for bilateral knee problems, the CI reported bilateral knee pain and right ankle pain.  Right ankle X-rays were noted by the examiner and showed old injury to the syndesmosis (connective tissue between the tibia/fibula) with bony fusion and degenerative changes.  As noted above, in September 2002 screening blood work for connective tissue disorders was negative, but a non-specific test (ESR) suggested an inflammatory disorder and the CI was started on medication for gout (gouty arthritis).  The CI underwent arthroscopy of the right knee in October 2002 and at the 17 December 2002 orthopedic follow-up visit, the CI reported he was having trouble with the right ankle.  Right ankle MRI performed on 30 January 2003 showed tenosynovitis of the extensor digitorum longus tendon, joint effusion, and degenerative changes of the subtalar joint.  A rheumatology consult was recommended.  

The 12 June 2003 civilian rheumatology consult, 14 months before separation, noted pain in knees and ankles, especially the right knee and right ankle.  The full evaluation is summarized above.  Regarding the ankles the physical examination showed bilateral ankle swelling and “some reduction” in ROM.  As elaborated above the rheumatologist believed the CI had an inflammatory arthritis condition of some type with secondary degenerative arthritis.  There were no additional rheumatology notes in record after this visit.  

During the 14 January 2004 MEB examination (recorded on DD Forms 2807-1 and 2808), 7 months prior to separation, the CI reported arthritis and trouble with painful swollen joints.  He noted problems with his feet, ankles and knees.  The physical examination showed tender ankle joints.  

The 23 January 2004 MEB NARSUM examination, 6 months before separation, noted complaints of chronic bilateral knee and ankle pain.  The physical examination showed the CI was ambulating with a crutch on the right side.  The DD Form 2808 examination findings summarized above were cited.  The physical therapy consult on 5 December 2003 was cited.  Physical therapy noted right ankle ROM was decreased to 75% of normal in all planes with mild effusion.  There was tenderness to palpation of the Achilles tendon and retrocalcaneal bursa.  The 30 January 2003 MRI of the right ankle was summarized previously.  Further work-up was recommended for inflammatory arthritis due to multiple joint involvement.  The NARSUM said only that the rheumatology evaluation did not think the CI had gout.  A consult for orthopedic MEB specialty consult was placed, but there is no indication in the record that this evaluation was accomplished.  The NARSUM indicated the CI did not meet retention standards due to chronic bilateral ankle pain, with degenerative arthritis according to AR 40-501 Chapter 3-14.c., osteoarthritis.  

At the C&P evaluation the CI presented with pain in his right and left knees, his right knee pain generally greater than left.  The VA examiner noted that the CI was using a crutch due to an exacerbation of the right knee, with “obvious giving way” to his right leg.  As noted above the CI reported migrating joint problems involving both knees and both ankles.  At the time of the examination he was only taking medication occasionally as needed.  The CI reported exacerbations were somewhat related to activity level but he estimated they occurred approximately once or twice per month, limited his activity and could require use of a crutch.  The right ankle was slightly swollen and tender, without evidence of instability.  Range of motion was dorsiflexion (DF) 10 degrees and plantar flexion (PF) 30 degrees with painful motion.  The left ankle showed slight tenderness to palpation over the ankle mortise itself, without swelling or evidence of instability.  Range of motion was DF 20 degrees and PF 40 degrees with painful motion.  There was no additional loss of ROM of either ankle with repetition.  Bilateral ankle X-rays showed degenerative arthritis.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB combined the bilateral knee and ankle conditions as one unfitting condition and rated 20%, coded 5003 (degenerative arthritis), apparently based on degenerative arthritis of multiple major joints or groups of minor joints, with occasional incapacitating exacerbations.  The PEB stated that the “disability existed prior to service and was not permanently aggravated by service, but is compensable IAW 10 USC 1207a.”  The VA rated the left knee condition 10%, coded 5260-5010 (leg, limitation of flexion of; traumatic arthritis), citing painful/limited motion of joint.  The VA also rated the right knee condition 10%, coded 5260-5010 (leg, limitation of flexion-traumatic arthritis), citing painful/limitation of motion of the joint; the left ankle condition 10%, coded 5271-5010 (ankle, limited motion of; and traumatic arthritis), citing painful/limited motion of the joint; and the right ankle condition 10%, coded 5270-5010 (ankle ankyloses-traumatic arthritis) citing painful/limited motion of the joint.  

The panel first considered if the bilateral knee conditions and the bilateral ankle conditions having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The permanent profile and commander’s statement both implicated only the right knee and left ankle conditions.  Based on this evidence the panel determined that at a minimum the two conditions forwarded by the MEB – the bilateral knee pain and the bilateral ankle pain conditions each remained separately unfitting when separated from the PEB’s combined adjudication.  However, the MEB NARSUM examination noted effusions of both knees and tenderness of both ankles and the bilateral knee and bilateral ankle conditions were judged to fall below retention standards.  Additionally, the STR provides ample documentation of abnormal imaging and abnormal findings of both knees and both ankles on examinations, including the MEB NARSUM and VA examinations.  The commander’s statement and other STR evidence did not provide any information which would permit the panel to discriminate the performance limitations attributable to the right or left knee or right or left ankle when considered in isolation.  Since undue speculation would be required to conclude that impairment from either knee or either ankle would not have unacceptably interfered with the performance of military duties, members agreed that each knee and each ankle was reasonably justified as separately unfitting and eligible for individual disability ratings.

The panel first deliberated the ratings of the knees.  There was evidence of degenerative arthritis and painful, limited motion of each knee supported by painful motion and joint effusion of the right knee at the PT MEB consult, effusions of both knees at the MEB and VA examinations, and painful motion of both knees documented at the VA examination to support a 10% rating for each knee under 5003.  The panel noted that the 5259 code (cartilage, semilunar, removal of, symptomatic) was also applicable for the right knee in this case, and provided an alternate route to a 10% rating.  There was no history or evidence of current meniscal pathology with frequent locking with recurrent effusions (5258) to support a higher rating than 10% under that code for either knee.  There was no limitation of flexion or extension of either knee that supported a rating under the VASRD diagnostic codes for limitation of motion (5260 or 5261).  There was no fracture, nonunion or malunion of the femur or tibia of either leg to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There was therefore no route to a rating higher than 10% for the right knee or left knee condition with any applicable VASRD 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 condition and 10% for the left knee condition, both coded 5099-5003.  

The panel finally deliberated the ratings of the ankles.  There was evidence of degenerative arthritis with painful, limited motion of each ankle supported by joint effusion and limited motion noted of the right ankle at the PT MEB consult and painful, limited motion of both ankles documented at the VA examination to support a 10% rating for each ankle under 5003.  There was also evidence of moderate limitation of right ankle motion for an alternate path for a 10% rating under 5271 (limitation of ankle motion), but there was no evidence of marked limitation of ankle motion for a higher rating than 10% for either ankle.  There was no fracture, nonunion or malunion of tibia/fibula of either leg to support consideration under the respective codes for ankle disability related to long bone conditions (5262).  The panel considered alternative VASRD ankle and analogous codes, but all were less applicable and/or not advantageous to rating.  There was therefore no higher than a 10% rating available for the right or left ankle with any applicable VASRD 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 ankle condition and 10% for the left ankle condition, both coded 5099-5003.  

BOARD FINDINGS:  In the matter of the chronic bilateral knee and ankle pain condition, the panel unanimously recommends a disability rating as follows: an unfitting chronic right knee condition, an unfitting chronic left knee condition, an unfitting right ankle condition, and an unfitting left ankle condition each rated 10%, all coded 5099-5003 IAW VASRD §4.71a.  There are 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; 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 Right Knee Pain	5099-5003	10%	
Chronic Left Knee Pain	5099-5003	10%	
Chronic Right Ankle Pain 	5099-5003	10%	
Chronic Left Ankle Pain 	5099-5003	10%	
COMBINED	40%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160705, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170016263, 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 40% 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