RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXX	CASE:  PD-2016-01764
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20040224

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Motor Transportation Operator, medically separated for “bilateral knee pain” with a disability rating of 0%.  

CI CONTENTION:  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 - 20031114	VARD - 20050308	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Bilateral Knee Pain	5099-5003	0%	Patellofemoral Syndrome. Left	5260	10%	20041202	
			Patellofemoral Syndrome. Right	5260	10%	20041202	
Hearing Loss with Tinnitus	Not Unfitting	Tinnitus	6260	10%	20041206	
		Bilateral Hearing Loss	6100	NSC	20041206	
Right Rotator Cuff Tear	Not Unfitting	Right Shoulder Rotator Cuff Strain	5299-5203	10%	20041202	
Right Large Toenail Deformity	Not Unfitting	Right Foot Big Toenail Removal	5199-5171	NSC	20041202	
COMBINED RATING:  0%	COMBINED RATING OF ALL VA CONDITIONS:  60%	

ANALYSIS SUMMARY:  

Bilateral Knee Pain.  The PEB combined the right and left knee conditions under a single disability rating, coded analogously as 5003 (degenerative arthritis) and rated 0% with application of the US Army Physical Disability Agency (USAPDA) pain policy, AR 635-40 B24.f.  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.  

According to the service treatment record and Medical Evaluation Board (MEB) narrative summary (NARSUM), the CI underwent left knee surgery in August 1999 and right knee surgery in December 1999 for percutaneous lateral retinacula releases.  The 3 October 2003 MEB NARSUM examination, 5 months prior to separation, noted complaints of bilateral knee pain with flare-up of his knee pain with running, jumping, marching, prolonged standing, or prolonged sitting with a flexed knee.  He had a constant, dull aching pain when he wasn't running; however, it was tolerable.  Physical examination showed range of motion (ROM) of each knee with flexion of 125 degrees (normal 140) and extension of 0 degrees (normal) without locking or catching.  There were no obvious joint effusions.  Both knees revealed tenderness.  There was no patellar malalignment through full ROM.  Patellar grind was positive bilaterally.  Neither knee showed varus or valgus deformity, instability, or laxity.  McMurray's test (for meniscal pathology) was negative.  

At the 2 December 2004 VA Compensation and Pension (C&P) evaluation, 9 months after separation, the CI reported constant pain and stiffness of both knees.  Physical examination showed ROM of the left knee with flexion of 100 degrees with pain at 100 degrees and extension of 0 degrees.  ROM of the right knee showed flexion of 110 degrees with pain at 110 degrees and extension of 0 degrees.  ROM of each knee was additionally limited by pain and pain had the major functional impact and was not additionally limited by fatigue, weakness, lack of endurance, or incoordination.  X-rays of the knees were negative.  

The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bilateral knee pain condition 0%, coded analogously as 5003 (degenerative arthritis), citing the USAPDA pain policy.  The VA provided separate ratings for each knee; rating each at 10%, coded 5260, (limitation of flexion of leg), based on the C&P examination 9 months after separation, citing decreased ROM limited by pain, and pain had the major functional impact.  

Both knees were considered to fail retention standards, they were implicated by the NARSUM and the commander’s statement, and both were profiled.  The panel adjudged that each knee was therefore reasonably separately unfitting.  Panel members considered that the objective findings and associated disability for each knee were identical, and agreed with the VA that the respective ratings should therefore be the same.  The VA examination was more comprehensive and addressed repetition and DeLuca criteria and was adjudged to have the higher probative value for rating.  

There was no history or evidence 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 those codes.  There was no fracture, nonunion or malunion of the femur or tibia to support consideration under the respective codes for knee impairment related to long bone conditions (5255, 5262).  There was no limitation of motion which attains a minimum rating under the diagnostic codes for limitation of flexion (5260) or extension (5261).  However, there was sufficient evidence of painful motion and functional loss to support a 10% rating for each knee IAW §4.59 and §4.40.  A bilateral 10% rating under the provisions of 5003 was considered, but it was concluded that the VA examination provided satisfactory evidence for painful motion of both knees; thus, separate joint ratings are indicated IAW §4.71a and §4.59.  After due deliberation, and considering all of the evidence, the panel recommends that each knee be unfitting with a disability rating of 10% for the right knee and 10% for the left knee, both coded 5099-5003.  

Contended PEB Conditions:  Hearing Loss with Tinnitus, Right Rotator Cuff Tear; and Right Large Toenail Deformity.  The panel’s main charge is to assess the fairness of the PEB’s determination that the contended conditions were not unfitting.  None of the conditions were profiled, implicated in the commander’s statement nor judged to fail retention standards.  Although there was a physical profile designation of “H2” identified, there was no mention of a hearing impairment on the profile. There was no performance-based evidence from the record that any of the conditions significantly interfered with satisfactory duty performance at separation.  After due deliberation, the panel concluded there was insufficient cause to recommend a change in the PEB fitness determination for any of the contended conditions and so no additional disability ratings are recommended.  

BOARD FINDINGS:  In the matter of the bilateral knee condition, the panel unanimously recommends each joint be separately adjudicated as follows:  an unfitting right knee coded 5099-5003 and rated 10%, and an unfitting left knee coded 5099-5003 and rated 10%, both IAW VASRD §4.71a.  In the matter of the contended hearing loss with tinnitus, right rotator cuff tear, and right large toenail deformity conditions, the panel unanimously recommends no change from the PEB determinations as not unfitting.  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, effective the date of the prior medical separation:  

CONDITION	VASRD CODE	PERMANENT RATING	
Right Knee Pain	5099-5003	10%	
Left Knee Pain	5099-5003	10%	
COMBINED	20%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20161114, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record 

AR20180003273, XXXXXXXXXXXXXXXXXX

XXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXX:

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