RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01170
BRANCH OF SERVICE:  ARMY	SEPARATION DATE:  20041031

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E4, Infantryman, medically separated for “chronic bilateral knee pain, due to patellar tendonitis, without neurologic abnormality” with a disability rating of 0%.  

CI CONTENTION:  He was given a higher rating for his conditions by the VA.  Review all 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 - 20040729	VARD - 20050322	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Chronic Bilateral Knee Pain, due to Patellar Tendonitis, without Neurologic Abnormality	5024	0%	Patellar Tendonitis with Chronic Left Knee Strain	5024-5262	20%	20050105	
			Patellar Tendonitis with Chronic Right Knee Strain	5024-5262	20%	20050105	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  80%	

ANALYSIS SUMMARY:  

Chronic Bilateral Knee Pain.  According to service treatment records (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), on 21 February 2003 the CI was first seen for a 6 months history of bilateral knee and right hip pain aggravated by walking and running.  No etiology was recorded.  He was given medications, duty limitations and referred for physical therapy (PT).  His pain persisted and he was then evaluated on 2 June 2003 in orthopedics.  Here it was first noted that he injured it from a faulty PLF (parachute landing fall) during a windy jump.  In a follow-up orthopedic appointment on 1 August 2003, it was recorded that there had been no specific traumatic incident.  He was thought to have bilateral jumpers knee and continuation of his treatment regimen was recommended.  In rheumatology on 5 April 2004 the CI again attributed the injuries to a parachute accident.  On 13 April 2004, the CI had a medial meniscus tear (MMT) repair and debridement of the patellar (kneecap) ligament.  An examination under anesthesia (EUA) showed stable ligaments.  These were also stable to probing during the arthroscopy.  Following surgery, he underwent rehabilitation in PT.  Despite treatment, the bilateral knee condition could not be adequately rehabilitated to meet the physical requirements of the CI’s military specialty and the CI was referred for MEB.  

The MEB NARSUM examination was dated 30 June 2004, 4 months prior to separation and 2 months after surgery, noted complaints of constant bilateral knee pain with swelling in his right knee and, at times, locking of the left knee.  The physical examination showed right knee swelling and bilateral tenderness below the kneecaps.  The ROM is recorded on the chart below.  Painful knee motion was recorded.  The CI could heel and toe walk without difficulty.  The DD Form 2807-1 and DD Form 2697 were both silent as to head trauma, loss of consciousness, or cognitive deficits.  Neither documented a parachute accident either.  

At the VA Compensation and Pension (C&P) evaluations performed on 5 January 2005, 3 months after separation, the CI reported that he injured his back, right hip, and both knees in a parachute accident in which he fell approximately 40 feet.  It was noted that he had multiple complaints and that his pain seemed to be out of proportion to his injuries.  He noted that he could only stand 1-2 minutes before needing to sit or move around.  He noted subjective instability and giving way.  No assistive device was in use or needed.  On examination, the posture and gait were normal.  He could walk on his heels and toes without difficulty.  X-rays of the knees were normal as was a whole body scan.  Flexion was limited bilaterally and painful on the right.  Painful motion of the left knee was not recorded.  Signs of meniscal irritation were present on the right as was an audible “pop.”  Both knees were stable.  

The ROM examinations in evidence which the panel weighed in arriving at its rating recommendation, with documentation of additional ratable criteria, are summarized in the chart below.  

Knee ROM
(Degrees)	MEB ~4 Mos. Pre-Sep	VA C&P ~3 Mos. Post-Sep	
	Left	Right	Left	Right	
Flexion (140 Normal)	135	140	130	110	
Extension (0 Normal)	0	0	0	0	
Comment	Flexion limited on the left due to low back pain		Painful motion	
§4.71a Rating	0%	0%	0%	10%	

The panel directed attention to its rating recommendation based on the above evidence.  The PEB combined the right and left knee conditions under a single disability rating, coded 5024 (tenosynovitis) and 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’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 separately, with attendant recommendations regarding separate unfitness, and separate rating if indicated.  
	
The panel first considered if the right knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The panel concluded there was not a preponderance of evidence in the service records which overcame the presumption that the bundled knee condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting right knee condition at the time of separation.  The VA rated the right knee condition 20%, coded 5024-5262 (tibia and fibula, impairment of), and based on the C&P examination 3 months after separation, citing moderate knee instability.  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) to support a rating under that code.  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).  The 5259 code (cartilage, semilunar, removal of, symptomatic) was also applicable in this case, and provided an alternate route to a 10% rating.  In considering support for a higher rating, the panel noted that the CI reported his knees frequently giving way at his VA C&P examination.  However, all examinations noted the presence of intact ligaments including the direct examination of the right knee under anesthesia with instrumented probing.  While there were subjective complaints provided at the C&P examination, these were not supported by objective testing on any examination.  The panel concluded that there was insufficient evidence of ligament instability to support dual coding under 5024 and 5257.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommended a disability rating of 10% for the right knee condition, coded 5259.  

The panel first considered if the left knee condition, having been de-coupled from the combined PEB adjudication, remained separately unfitting as established above.  The panel concluded there was not a preponderance of evidence in the service records which overcame the presumption that the bundled knee condition was reasonably considered separately unfitting.  The panel then considered its rating recommendation for the unfitting left knee condition at the time of separation.  The VA rated the left knee condition 20%, coded 5024-5262 (tibia and fibula, impairment of), and based on the C&P examination 3 months after separation, citing moderate knee instability.  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).  X-rays were normal on multiple occasions as was a whole body scan.  Painful motion was not recorded.  The evidence supported a non-compensable rating for the left knee.  After due deliberation, considering all of the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel recommends a disability rating of 0% for the left knee condition, coded 5024.  

BOARD FINDINGS:  In the matter of the right knee condition, the panel unanimously recommends a disability rating of 10%, coded 5259 IAW VASRD §4.71a.  In the matter of the left knee condition, the panel unanimously recommends a disability rating of 0%, coded 5024 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, Due to Patellar Tendonitis, Without Neurologic Abnormality	5259	10%	
Chronic Left Knee Pain, Due to Patellar Tendonitis, Without Neurologic Abnormality	5024	0%	
COMBINED	10%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20160927, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20170018928, 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